Bangalore District Court
Smt. K. Parvathamma vs Sri. K. Nagaraj on 3 January, 2022
1 O.S.No.26279/2007
Govt. Of Katakana
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Judgment in suits
(R.P.91)
Present: Sri. K.M. Rajashekar, B.Sc., LL.M.,
Dated: This the 3rd day of January 2022
Original suit No.26279/2007
Plaintiff:- Smt. K. Parvathamma,
Wife of A. Ramakrishna,
Daughter of Late Krishnappa,
Aged about 60 years,
Residing at: No.102/4, 2nd Main,
2nd Cross, Shankarappa Layout,
Lalji Nagar, Bangalore-560 027.
(By Pleader : Sri. N.K. Kantaraju Adv.,)
V/s
Defendants:- 1. Sri. K. Nagaraj,
Since deceased by his LRs.
a. Smt. C. Devi,
Wife of Late K. Nagaraj,
Aged about 48 years,
2 O.S.No.26279/2007
Residing at: No.1058/2,
4th Cross, K.N. Extension,
Yeshwanthpur,
Bangalore-560 022.
b. Smt. Lekha,
Daughter of Late K. Nagaraj,
Aged about 30 years,
Residing at: No.1058/2,
4th Cross, K.N. Extension,
Yeshwanthpur,
Bangalore-560 022.
c. Sri. N. Kishan,
Son of Late K. Nagaraj,
Aged about 28 years,
Residing at: No.1058/2,
4th Cross, K.N. Extension,
Yeshwanthpur,
Bangalore-560 022.
d. Sri. N. Kiran,
Son of Late K. Nagaraj,
Aged about 26 years,
Residing at: No.1058/2,
4th Cross, K.N. Extension,
Yeshwanthpur,
Bangalore-560 022.
e. Sri. N. Kishore,
Son of Late K. Nagaraj,
Aged about 24 years,
Residing at: No.1058/2,
4th Cross, K.N. Extension,
Yeshwanthpur,
Bangalore-560 022.
3 O.S.No.26279/2007
2. Sri. G.P. Darshanlal,
Son of M. Gangaprasad,
Aged about 56 years,
Residing at: No.76/5/20
E.S.I.H Road,
Adoni - 518301,
Kurnool District,
Andhra Pradesh.
3. Sri. H. Ramakrishna Reddy,
Son of H. Shankar Reddy,
Aged about 52 years,
Residing at: Halaharvi Village,
Allor Taluk, Kurnool District,
Andhra Pradesh.
4. Sri. K. Lakshmipathi,
Father's name not known
to the Plaintiff,
Aged Major,
Partners of:
M/s Mayur Enterprises,
No.36, 1st Main Road,
Gokul, 1st Stage,
4th Phase, Ward No.3,
Yeshwanthpur,
Bangalore-560 022.
5. Sri. K. Venkateshmurthy,
Father's name not known
to the Plaintiff,
Aged Major,
Partners of: M/s Mayur Enterprises,
No.36, 1st Main Road,
Gokul, 1st Stage,
4th Phase, Ward No.3,
Yeshwanthpur,
Bangalore-560 022.
4 O.S.No.26279/2007
6. Sri. Chandrashekaraiah,
Father's name not known
to the Plaintiff,
Aged Major,
Residing at: No.20,
Old Panchayat Road,
Yeshwanthpur,
Bangalore-560 022.
7. Sri. P. Damodar,
Father's name not known
to the Plaintiff,
Aged Major,
Residing at: No.52/1A,
Ramadas Road,
Yeshwanthpur,
Bangalore-560 022.
8. Sri. Y.C. Chidananda - HUF
Represented hereby by its
Karthah Sri. Y.C. Chidananda,
Son of Late B.B.
Chikkaveerappa,
Aged about 53 years,
Residing at: 777, Yelahanka,
Bangalore-560 065.
Since deceased, suit is
abated against him.
9. Smt. N. Veena,
Daughter of Late Komala &
Late Y. Nanjunda Reddy,
Wife of R. Chandrashekar,
Aged about 38 years,
Occupation: House Wife,
Residing at: No.826,
5 O.S.No.26279/2007
2/B Cross, 8th Main,
1st Block, HRBR Layout,
Kalyananagar,
Bangalore-560 043.
10. Sri. N. Vinay,
Daughter of Late Komala &
Late Y. Nanjunda Reddy,
Aged about 36 years,
Occupation:
Engineer in Manipal Hospital,
Residing at:
Opposite to Hi-choice Home Needs,
Doddanekkundi Main Road,
Marathahalli Post,
Vimanapura,
Bangalore-560 037.
11. Sri. Vikas.N. Reddy,
Daughter of Late Komala &
Late Y. Nanjunda Reddy,
Aged about 34 years,
Occupation: HCL, ITPL,
Bangalore,
Residing at: No.4,
"Komala Nivas",
Doddanekkundi Main Road,
Marathahalli Post,
Bangalore-560 037.
12. Smt. Parveen,
Wife of Mohammed Fayaz,
Aged about 54 years,
Occupation: House Wife,
Residing at: No.879, Pipe Line,
Yeshwanthapur,
Bangalore-560 022.
6 O.S.No.26279/2007
13. M/s Sterling Urban Infra
Projects Private Limited,
A Company incorporated
under the Provisions of the
Companies Act, 1956
Having its Administrative
Office at No.8, Prestige Nebula,
Cubbon Road,
Level 5, Opp.
Income Tax Office Building,
Bangalore-560 001.
Represented by its Director,
Sri. Shankar Sastri.
14. Smt. Chikkalakshmamma,
Wife of Late Krishnappa,
Aged about 94 years,
Occupation: House Wife,
Residing at No.1058/2,
4th Cross, K.N. Extension,
Yeshwanthpur,
Bangalore-560 022.
(Pleader by: Sri. R. Chandrashekhar Adv., for
D.1(e), Sri. P.N. Manmohan/S. Ganesh Shenoy
Adv., for D.2, Sri. Dayanand Adv., for D.3,
Sri.M.C. Mallikarjuna Swamy Adv., fr D.4 &
D.5, Sri. H.H. Shetty Adv., for D.6, Sri. K.R.
Srinivas Patavardhan Adv., for D.9 to D.11,
Sri. Holla & Holla Associates for D.13, Smt.
Anitha C.S. Adv., for D.14, D.8 - Dead, D.7,
D.12 - Ex-parte)
7 O.S.No.26279/2007
Date of Institution of the suit 18.7.2007
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Partition
for injunction, etc.)
Date of the commencement of 24.7.2017
recording of the Evidence
Date on which the Judgment was 3.1.2022
pronounced
Year/s Month/s Days
Total duration 14 05 15
JUDGMENT
The present suit is filed by the Plaintiffs against the Defendants for partition and separate possession of her 1/3rd share in the Suit Schedule Property by metes and bounds and to declare that the Sale Deeds dtd: 1.6.2000 executed by the husband of the Defendant No.1(a) and the father of the Defendant No.1(b) to (e) in respect of the Item No.2 of the Schedule Property in favour of the 2 nd & 3rd Defendants, Sale Deed dtd: 21.4.2003 in respect of Item No.3, Sale Deed dtd: 18.7.1987 in respect of Item 8 O.S.No.26279/2007 No.4 of the Schedule Property in favour of 12 th Defendant and in turn, the 12th Defendant executed Schedule Property in favour of the 6 th Defendant, the Sale Deed dtd: 28.2.2000 in respect of Item No.5 of the Schedule property in favour of 7 th Defendant and Sale Deed dtd:24.9.2007 in respect of Item No.1 of Schedule Property in favour of 8th Defendant and Sale Deed dtd:30.6.2010 executed by 8th Defendant in respect of Item No.1 of the Schedule Property in favour of 13 th Defendant in respect of Item No.1 of Schedule Property during the pendency of the suit excluding the right of the Plaintiff are null and void and not binding on the Plaintiff's share and to ascertain mesne profits of Plaintiff's 1/3rd share in respect of Item No.2 to 5 of Schedule Properties from the date of alleged Sale Deeds till the date of actual delivery of possession of Item No.2 to 5 of the schedule properties by metes and bounds and to ascertain mesne profits of Plaintiff's 1/3rd share in respect of Item No.1 schedule property from the date of suit till the date of 9 O.S.No.26279/2007 Sale Deed dtd: 24.9.2007 from the Defendant No.1(a) to
(e) and to ascertain mesne profits of Plaintiff's 1/3rd share in respect of Item No.1 schedule property from the date of registered Sale Deed dtd: 24.9.2007 and 30.6.2010 till the date of actual delivery of possession from 13 th Defendant and for costs of the suit.
2. The case of the Plaintiff is that, originally Sri.Gurreddi is the original propositor. He died long aback leaving behind his two children namely Krishnappa and Papamma. The son Krishnappa also died intestate leaving behind his wife Smt. Chikkalakshmamma and three children namly K. Nagaraj, Parvathamma/ Plaintiff and Smt. Komala. The said K. Nagaraj died in the year 2003 leaving behind his wife Smt. C. Devi and one daughter and three sons who are Defendant No.1(a) to (e) herein and the 3rd daughter Smt. Komala died leaving behind her children i.e., daughter and two sons who are arrayed as Defendant No.9 to 11. It is stated that the immovable property being the agricultural land (i) bearing 10 O.S.No.26279/2007 Sy.No.24/2B measuring 10.5 guntas situated at Amani Bellandur Khane Village, Varthur Hobli, Bangalore East Taluk (formerly Bangalore South Taluk) and (ii) land bearing Sy.No.5 measuring 3 Acres 29 guntas situated at Haralur Village, Varthur Hobli, Bangalore East Taluk (formerly Bangalore South Taluk) (iii) the commercial property bearing Site No.36 presently PID No.3-72-36 situated at 1st Main Road, Gokul I Stage, 4th Phase, Yeshwanthpur, Ward No.3 measuring East-West 105 feet, North-South 46 feet totally measuring 4400 square feet
(iv) immovable property being the House Site bearing Site No.20 presently PID No.3-62-20 situated at Old Panchayath Road, Yeshwanthpura, Ward No.3, measuring East-West 48 feet, North-South 26 feet totally measuring 1071.6 feet and (v) immovable property being the House site bearing Site No.52/1A situated at Ramadas Road, Yeshwanthpura, Ward No.3, measuring East-West 20 feet, North-South 12 feet, totally measuring 240 square feet which are morefully described as Schedule Property. 11 O.S.No.26279/2007 Sri.Gorreddi had owned and possessed certain immovable properties including the Schedule Properties. The Schedule Properties are the joint family properties acquired out of the joint family funds by selling some of the joint family properties belonging to Sri. Gurreddi the great grand father of the Plaintiff in the name of Sri.Krishnappa and Sri. Nagaraj, the brother of the Plaintiff herein. The Defendant No.1(a)'s husband Sri. K. Nagaraj died in the year 2003. It is stated that Item No.1 of the property was standing in the name of her husband Sri.K.Nagaraj and after the death of her husband, the revenue records have been changed in favour of the Defendant No.1(a) to 1(e). The Item No.2 of the Schedule Property was also in possession and enjoyment of the 1 st Defendant Sri. K. Nagaraj. The Item No.3 to 5 of the Schedule Property are also ancestral properties belonged to the joint family. The husband of the Defendant No.1(a) was the kartha of the joint family and was looking after the affairs of the joint family. It is stated that, all the Suit 12 O.S.No.26279/2007 Schedule Properties are the ancestral properties and are in join possession and enjoyment of the Plaintiff and the Defendant No.1(a) to 1(e). The Plaintiff being the daughter of Late Krishnappa and grand daughter of original propositor Sri. Gurreddi and thus, being the co- parcener is entitled to equal share in all the Schedule Properties. The Schedule Properties are the joint family properties of the Plaintiff and the Defendants 1(a) to 1(e) thereby together constituted joint family and joint possession and therefore the Plaintiff and the Defendants 1(a) to (e) are absolute owners and have absolute right, title and interest over the Schedule Properties. The Plaintiff being the co-owner continued to be in possession even after marriage as the Suit Schedule Properties are the ancestral properties and the possession in respect of the Schedule Properties are in joint. The Plaintiff requested the husband of the Defendant 1(a) to partition the Schedule Properties during his lifetime and the husband of the Defendant No.1(a) has postponed the 13 O.S.No.26279/2007 partition and has sold Item No.2 to 5 of the Schedule Properties to the Defendant No.2 to herein which fact was not disclosed to the Plaintiff, when she demanded for partition and subsequent to the death of husband of Defendant No.1(a), the Plaintiff requested to allot the share of the Plaintiff in all the Schedule Properties in the month of March 2007. The Defendant No.1(a) to (e) instead of allotting the share of the Plaintiff have postponed the fact of partition for one or the other pretext and for obvious reasons. The relationship between the Plaintiff and the Defendant No.1(a) to (e) were not in good terms and there were differences between them. They have refused to partition the Schedule Properties. The Defendants have sold the Item No.2 to 5 through the registers Sale Deeds including the Plaintiff's share in favour of the Defendant No.2 to 7 herein. The Defendant No.1 has no legal right to execute Sale Deeds in respect of the Item No.2 to 5 of the schedule properties in favour of the Defendant No.2 to 7 and by virtue of such illegal 14 O.S.No.26279/2007 Sale Deeds the Defendant No.2 to 7 will not derive any right, title or interest in respect of the Item No.2 to 5 of the Schedule Properties. The Plaintiff came to know that the Item No.2 of the Schedule Property has been sold in favour of the Defendant No.2 and 3, Item No.3 of Schedule Property was sold in favour of Defendant No.4 and 5, Item No.4 in favour of 12 th Defendant on 18.7.1987 and 12th Defendant in turn sold the Item No.4 property through the registered Sale Deed dtd: 23.2.1994 in favour of Defendant No.6 and Item No.5 property sold in favour of Defendant No.7. The husband of the Defendant No.1(a) and the Defendant No.1(a) to (e) are the co-owners along with the Plaintiff and the Defendant No.2 to 7 are the purchasers who purchased Item No.2 to 5 of the Schedule Properties through the alleged Sale Deeds and the alleged Sale Deeds will not bind the Plaintiff's share and the same are null and void. Hence, this suit. Even after filing of the present suit and also ex-parte interim order dtd:
25.7.2007 passed this Court, the Defendant No.1(a) to (e) 15 O.S.No.26279/2007 without having any right, title and interest over the property have executed Sale Deed dtd: 24.9.2007 in respect of Item No.1 of the property in favour of 8 th Defendant. The Defendant No.8 has also not verified about the legal heirs of deceased Krishnappa. On the basis of the alleged Sale Deed dtd: 24.9.2007, the 8 th Defendant got khatha transferred in his name. The Plaintiff after coming to know about the alleged Sale Deed dtd: 24.9.2007 has filed an appeal in R.A.No.200/2009-10 before the Assistant Commissioner, Bangalore North Sub-
Division, Bangalore, challenging the order dtd:27.11.2007 passed by the Tahsildar, Bangalore East Taluk in M.R.No.116/2007-08 effecting change of khatha in respect of Item No.1 of the Schedule Property in favour of the 8 th Defendant. The said appeal is pending consideration by the Assistant Commissioner, Bangalore North Sub- Division, Bangalore. Plaintiff, her younger sister Komala and Defendant No.1(a) to (e) together entitled for equal share in Item No.1 of the Schedule Property. The Partition 16 O.S.No.26279/2007 Deeds and Panchayath Partition said to have been taken place in 1985 are all false and are not within the knowledge of the Plaintiff as she is not a party to the said documents. The entires made in favour of 8 th Defendant are not binding on the Plaintiff's exclusive right and share. The Defendant No.8 has not disclosed the execution of Sale Deed dtd: 30.6.2010 in respect of Item No.1 of the Schedule Property in favour of 13th Defendant. The Sale Deed executed by the 8th Defendant in favour of 13th Defendant is hit by Section 52 of the Transfer of Property Act. In view of the Sale Deed dtd: 30.6.2010, the 13 th Defendant claiming title and also sought for change of revenue records. The 13th Defendant is not entitled to change of revenue records as he does not derive any title from the 8th Defendant and therefore, the Sale Deed executed by the 8th Defendant in favour of the 13th Defendant in respect of Item No.1 of the Schedule Property is liable to be set aside and also to be declared as null and void and not binding on the Plaintiff's share. In 17 O.S.No.26279/2007 fact the Plaintiff had absolute right over the property and exercising her legitimate right and has sought for partition in respect of her share. Hence prayed to decree the suit.
3. In response to the summons, the Defendants have appeared before the Court through their Counsels and have filed their separate written statements.
4. The Defendant No.1(e) filed his written statement admitted the relationship between the parties and the existence of the schedule properties and has denied that the Plaintiff being the daughter of Late Krishnappa and grand daughter of original Propositor Sri. Gurreddi being the co-parcener is entitled to equal share in all the Schedule Properties. This Defendant has contended that he has not sold any of the properties nor he was the party to any of the alleged Deeds and if the same has been sold is without his knowledge in order to deprive his legitimate share in the Suit Schedule Properties. It is contended that Sri. Gurreddi - the original Propositor has owned and 18 O.S.No.26279/2007 possessed immovable properties including the properties shown in the Suit Schedule and further the Suit Schedule Properties are also the properties belonging to the joint family acquired out of the joint family nucleus. On the death of the father of this Defendant who died in the year 2003 the entries which stood in his name were transferred in the name of Defendant No.1(a) to (e) including this Defendant and as such the schedule properties are the ancestral and joint family properties in joint possession and enjoyment of the same. It is further stated that the father of this Defendant was looking after the affairs of the joint family as Kartha and on his death the Defendant No.1(c) is looking after the affairs of the joint Kartha. The Defendant being the son of Late Nagaraj and grand son of Late Krishnappa is entitled for a share in the Suit Schedule Property. This Defendant is the class-I heir legal heir entitled for equal share that of the other Defendants as the properties acquired by his father through inheritance. The father of this Defendant has 19 O.S.No.26279/2007 absolutely no right to deny the legitimate share entitled under law. This Defendant was a minor and had absolutely no knowledge of the father alienating the properties on various dates to Defendants. Though the present suit was filed in the year 2007, the suit summons was not served on this Defendant and he was placed ex- parte. On verification he came to know that his father has sold the schedule properties excluding his share without allotting legitimate share, though he is entitled in law under Mithakshara School of law. After obtaining relevant document, this Defendant has challenged the Sale Deeds and also sought for partition through counter claim. This Defendant has valued the suit and has paid requisite court fee. Hence, prayed to decree the suit.
5. The Defendant No.3 filed his written statement contending that the suit filed by the Plaintiff for partition and separate possession of the Plaintiff's 1/3rd share in the Suit Schedule Properties and declaration of the Sale Deeds executed in respect of the Suit Schedule Properties 20 O.S.No.26279/2007 as null and void and other reliefs. The suit is not maintainable in law and on facts and is liable to be dismissed. The suit is barred by limitation. The averments made in the plaint are false, frivolous and vexatious. The Defendant has contended that all the joint family properties are not the subject matter of the suit and as such the suit is for partial partition and is not maintainable. It is stated that the nature of Item No.2 of the Suit Schedule Property has been changed from the agricultural to non-agricultural purpose vide order dtd:20.1.2003 passed in BDS:AALN:(E) AB:ANR:36:2002- 03 by the Deputy Commissioner, Bangalore District. Therefore, the court fee paid by the Plaintiff is insufficient. It is contended that the Plaintiff is neither the co-owner nor the properties in question are the joint family properties. The Plaintiff has no right whatsoever over Item No.2 property. The suit Item No.2 Property was sold on 1.6.2000 i.e., prior to the amendment of the Hindu Succession Act. The Sale Deed in question was executed 21 O.S.No.26279/2007 prior to 20.12.2004 and as such is saved by Proviso to Section 6 of the Hindu Succession Act. Hence, on the said ground alone the suit is liable to be dismissed. The Sale Deed dtd: 1.6.2000 shows that there was a partition on 13.10.1985 and that the Sale Deed was executed by Late Sri. K. Nagaraj and Defendant No.1(a) to (e) in favour of Defendant No.2 & 3 for the purpose of family commitments, legal necessities and for the benefit of their family members. Therefore, there is no illegality whatsoever and the Plaintiff has no right whatsoever in respect of Item No.2 property. Pursuant to the Sale Deed the Khatha in respect of Item No.2 of the Suit Schedule Property was mutated in the name of the Defendant No.2 & 3 as per M.R.No.9/2000-01 dtd: 1.6.2000. The Defendant No.3 has produced MR order, RTC for the period 2000-2001, Encumbrance Certificate in the present suit. The Defendant No.2 & 3 have filed an application before the Deputy Commissioner, Bangalore District for conversion of the suite Item No.2 of the Plaint Schedule 22 O.S.No.26279/2007 Property from agricultural to non-agricultural purposes. The Defendant No.2 & 3 paid a sum of Rs.4,42,407/- on 9.1.203 towards conversion charges. A copy of the Challan for having paid the conversion charge is produced in the present suit. The Deputy Commissioner, Bangalore District vide order dtd: 20.1.2003 passed in BDS.AALN:(E) AB:ANR:36:2002-03 permitted the Defendant No.2 & 3 to use the suit Item No.2 of the Plaint Schedule Property for non-agricultural purpose. The Defendant No.2 & 3 have also executed a General Power of Attorney dtd: 18.2.2003 in favour of Sri. K. Satish Kumar in respect of Item No.2 of the Plaint Schedule Property. It is contended that the was born prior to the commencement of Hindu Succession Act and has no right whatsoever in respect of the Suit Schedule Properties. As such the Plaintiff is not entitled for any share in the suit properties. The Plaintiff is nor a co-parcener in respect of the property and on the said ground alone the suit is liable to be dismissed. The suit is also bad for non-joinder of necessary parties. In respect of 23 O.S.No.26279/2007 Item No.2 sites have been formed and sold to third parties but the Plaintiff has suppressed this material fact and has not made the site owners as party to the instant suit. The Defendant No.3 has specifically denied all other plaint averments made in the Plaint by the Plaintiff. This Defendant has contended that the suit filed by the Plaintiff is false, frivolous and is liable to be dismissed in the interest of justice and equity. Hence, prayed to dismiss the suit.
6. The Defendant No.4 and 5 have filed their written statement contending that the suit is not maintainable as the same is bad for non-joinder of parties, hence the suit is liable to be dismissed in toto. The Defendant No.4 and 5 have specifically denied the contents of Para No.3.1 to 3.5 of the plaint. But, the contention in Para No.3.6 of the plaint that these Defendants will not derive any right, title or interest in respect of Item No.3 of the Schedule Properties is incorrect and highly misconceived. These Defendants are the bonafide purchasers of the schedule 24 O.S.No.26279/2007 item property by paying hard earned money for their vendors. The absolute Sale Deed was executed by those vendors on 21.4.2003 vide Document No.434/03-04, recorded in C.D.No.17 on 22.4.2003 before the Sub- Registrar, Rajajinagar, Bangalore. Since from that date these Defendants are in possession of the schedule property by paying tax, as and when accrued due, to the BBMP. These Defendants have purchased the Item No.3 of the schedule property, much earlier to the Central enactment i.e., Hindu Women's Right to Property Act. Earlier to that one of the Vendor of these Defendants Sri.K. Nagaraj has got partitioned through Panchayath Parikath in respect of the ancestral properties with his cousin brother Sr. N. Munireddy S/o Sri. Nanjundappa dtd:17.11.1985. At that time, they were in joint family. After that Sr. K. Nagaraj acquired the Item No.3 of the Schedule Property and was in possession till sale of the same to these Defendants. From the date of purchase these two Defendants are in possession. The Plaintiff 25 O.S.No.26279/2007 approached this Hon'ble Court with ulterior motive of gaining something by filing the suit against the bonafide purchasers who are not at all concerned with the imaginary claims of the Plaintiff. The Plaintiff could have claimed her share as soon as her brother K. Nagaraj and cousin Munireddy got partitioned all the ancestral properties during 1985 itself. The Plaintiff kept quite all these 22 years and claimed share in the properties which were sold by her brother long back. It is contended that the Plaintiff instead of making the wife and children of Late K. Nagaraj only, made these Defendants also as parties who are bonafide purchasers having in possession of their respective property by investing huge amounts and constructed building in Item No.3 of the schedule property. These Defendants after thorough enquiry purchased the schedule item property by putting their hard earned money. Moreover the Plaintiff cannot say that the purchase made by the Defendants in null and void. As the Plaintiff approached this Court at belated stage and 26 O.S.No.26279/2007 the same is barred by limitation. It is contended that the Plaintiff was not at all co-parcener of Late Krishnappa's family at the time of sale of the schedule property to these Defendants during 2003 and schedule properties were not the joint family properties as contended by the Plaintiff and question of joint possession by the Plaintiff and Defendant No.1(a) to (e) does not arise. At the time of executing Sale Deed in favour of these Defendants Late K. Nagaraj and his family members were the absolute owners. Accordingly, these Defendants after confirming the title and interest of those parties Sale Deed was got executed in their favour from the then absolute owners. The Plaint are all imaginary and concocted for the purpose of making false claims without having an iota of right or title over the sold properties much earlier to the enactment passed by the parliament. The Defendants have specifically denied all other plaint averments made in the plaint. Hence, prayed to dismiss the suit. 27 O.S.No.26279/2007
7. The Defendant No.6 filed his written statement specifically denying all the plaint averments made in the plaint and has contended that Smt. Parveen has sold Item No.4 of the schedule property to 6th Defendant under a registered Sale Deed dtd: 23.2.1994. The said Sale Deed has been registered in the office of the Sub-Registrar, Rajajinagar, Bangalore, in Book-I, Volume 1576, Pages 120 to 124 as Document No.4380/1993-94 on 18.4.1994. Thereafter the khatha of the Item No.4 of the schedule property has been changed to the name of 6 th Defendant. Thus 6th Defendant has acquired absolute title to Item No.4 of schedule property, said property when purchased by the 6th Defendant was a vacant site. In the year 1995- 96, 6th Defendant has constructed a residential house comprising main house and out house in the ground floor. Since the date of purchase the 6 th Defendant is paying the property tax in respect of the 4 th Item of the schedule property. The Defendant has produced tax paid receipts issued by the Bangalore City Corporation for the year 28 O.S.No.26279/2007 1995-96, 2004-2006, 2006-2007 and 2007-2008. This Defendant has also got water supply provided by the BWSSB to Item No.4 of the schedule property. The initial deposit receipt and the sanction for sanity connection are produced in the present suit. Since from the date of purchase, this Defendant is in possession and enjoyment of the Item No.4 of the schedule property. The Sale Deed dtd: 18.7.1987 executed by K. Nagaraj in favour of Smt. Parveen and the Sale Deed dtd: 23.2.1994 in favour of the 6th Defendant in respect of the Item No.4 of the schedule property are legal and valid. The 6th Defendant has derived absolute title over Item No.4 of the schedule property. The Plaintiff has no manner of right over the Item No.4 of the schedule property. Hence, prayed to dismiss the suit.
8. The Defendant No.8 filed his written statement contending that the suit of the Plaintiff is false, frivolous and vexatious and is not maintainable either in law or on facts. The above suit has been filed with the sole 29 O.S.No.26279/2007 intention of harassing the Defendants and coercing the Defendant No.8 to terms and to make unlawful gains. The above suit lacks bonafide and hence the same is liable to be dismissed in limine. The Plaintiff has approached this Court with unclean hands by suppressing several material facts and hence she is not entitled to any reliefs, much less the relief prayed for in the plaint. The Plaintiff has filed this suit for partition and separate possession and also for declaration with an intention to harass the Defendants. The Plaintiff has paid the court fee only for partition of the properties and not for declaration of the Sale Deeds as null and void prayed by the Plaintiff. On this ground alone the suit is liable to be dismissed. The property mentioned in the suit does not belong to the Plaintiff. Therefore, the suit filed by the Plaintiff is far beyond the scope of subject matter of jurisdiction and this suit is not a fit one to be entertained by this Court as the Plaintiff has paid the court fee only for partition and separate possession. The above suit is not properly 30 O.S.No.26279/2007 valued and proper court fee has not been paid by the Plaintiff. It is stated that the Defendant No.1 represented that she had good and marketable title over the Item No.1 of the Suit Schedule Property and further represented that, Defendant No.1(a) to (e) had acquired the said property after the death of her husband Sri. Nagaraj. Late Nagaraj acquired the property under the Partition Deed dtd: 13.10.1985 entered into between Late Munireddy and Late K. Nagaraj. The Defendant No.1 further represented that the said property has always been in the absolute ownership and possession of Defendant No.1 and her deceased husband, ever since the same fell into his share under the said partition. The Defendant No.1 furnished a copy of the said Partition Deed, RTCs, Tax Paid Receipts and Encumbrance Certificates for perusal of the Defendant No.8 herein. The Defendant No.8 is the bonafide purchaser of the Item No.1 of the schedule property purchased from his vendors under a registered Sale Deed dtd: 24.9.2007 registered as 31 O.S.No.26279/2007 Document No.BNG(U)-VRT/3399/2007-08. This Defendant has purchased the same in good faith, for a valuable consideration, from its rightful owners i.e., Smt. Yashodhamma, Sri. M. Surya Prakash, Sri. Narendra Babu, Sri. Nanjunda Reddy, Smt. M. Kusuma, Smt. Devi, Smt. Lekha, Sri. N. Krishan, Sri. N. Kiran and Sri. N. Kishore. It is stated that Late Thimmarayappa was the absolute owner of the said property. Subsequently, the said property was sold by Late Thimmarayappa to one Late Munishamappa S/o Nanjundappa. Pursuant to the said purchase, the Late Munishamappa got his name mutated into the revenue records and his name stands reflected in the extract of the mutation register entry MR No.30/1986-87. At this juncture, it is pertinent to note that the said property was purchased by Late Munishamappa for and on behalf of the joint family consisting of himself and his brother Guredappa. It is stated that Late Nanjundappa had two sons being Sri. Munishamappa and Sri. Guredappa. Late Munishamappa was married to one Smt. Obamma and 32 O.S.No.26279/2007 from the said wedlock he had two sons being Sri. Nanjundappa and Sri. Krishnappa. The second of the aforesaid two sons of Late Munishappa i.e., Late Krishnappa was adopted by the Late Guredeppa who is the brother of Late Munishamappa. The said Late Guredeppa was issueless and therefore adopted Late Krishnappa. Late Munishamappa died intestate on 10.3.1968 leaving behind his wife Smt. Obamma and his son Sri. Nanjundappa. Therefore, on adoption of Late Krishnappa by Late Guredeppa, Late Obamma and Sri. Nanjundappa became the sole legal heirs to the estate of Late Munishamappa. Late Nanjundappa died intestate, leaving behind his wife Smt. Dodda Lakshmamma and son Sri. M. Muni Reddy, who succeeded to the estate of the Late Nanjundappa. Sri. M. Muni Reddy was married to Smt. Yashodamma, the 1st Vendor of this Defendant and out of the said wedlock they had four children, being Sri. M. Surya Prakash, Sri. Narendra Babu, Sri. Nanjunda Reddy, Smt. M. Kusuma, the second, third, fourth and fifth 33 O.S.No.26279/2007 vendors of this Defendant. Sri. Guredeppa died intestate leaving behind him his wife Smt. Sakamma and adopted son Sri. Krishnappa as his sole surviving heirs to his estate. Sri. Krishanppa was married to one Smt. Chikka Lakshmamma and out of the said wedlock had a son by name Sri. K. Nagaraj, who succeeded to the estate of Late Sri. Krishnappa. Late K. Nagaraj was married to C. Devi, the 6th Vendor of this Defendant No.8 and out of the said wedlock they had four children being Smt. Lekha, Sri. N. Krishan, Sri. N. Kiran and Sri. N. Kishore, the seventh, eight, ninth and tenth vendors. In the year 1985, a panchayath partition came to be entered into between the families of Late Muni Reddy and Late K. Nagaraj. The Panchayath Deed of Partition dtd: 13.10.1985 is produced in the present suit. In the said partition, several other properties, including the land in Sy.No.24/2B i.e., the said property was partitioned. Though the said partition was not registered, the same was acted upon and the respective families have taken their shares and are in 34 O.S.No.26279/2007 separate possession of their respective shares. It is further stated that, a registered Deed of Partition dtd:
27.12.2002 was entered into between the family members of Late Muni Reddy, whereby they were allocated their respective shares in the properties which had fallen to the share of the said family by virtue of the Panchayath Deed of Partition of 1985. Similarly, a registered Deed of Partition dtd: 29.9.2004 was entered into between the family members of Late K. Nagaraj with respect to properties fallen to their share by virtue of the Panchayath Partition of 1985. However, in the respective Partition Deeds both the families i.e., the families of Muni Reddy a K. Nagaraj have agreed to jointly hold 21 guntas in 24/2B i.e., Item No.1 of the schedule property herein.
Further this Defendant contended that his vendors have affirmed that the aforesaid facts are true and correct by way of a signed declaration, wherein the same have ratified the said representations. The vendors of this Defendant have got the khatha of the said property jointly 35 O.S.No.26279/2007 entered into their names as joint owners. This Defendant further stated that the names of his vendors who are the Defendant No.1(a) to (e) duly reflected in the Extract of Mutation Register MR No.91/2006-2007 issued by the Village Accountant. In the said mutation extract and in the tax paid receipts, the name of the sons of Late Munishamappa i.e., Late Nanjundappa and Late Krishnappa is recited, as also the names of Defendants Vendors. The Plaintiff is no way related to the vendors of this Defendant and she cannot claim any sort of right, title or interest in the said property. The Plaintiff is attempting to grab the property legitimately purchased by this Defendant No.8. This Defendant is a bonafide purchaser of the said property, having purchased the said property on the representation made by this Defendant's vendors of being the absolute owners of the said property and further after scrutinizing the necessary documents and being satisfied as to the title of his vendors and paying valuable consideration of Rs.84,00,000/-. This 36 O.S.No.26279/2007 Defendant has purchased the property through a registered Sale Deed and nowhere in the said document or any other documents the name of the Plaintiff reflect as to being a member of the family this Defendant's vendors. The Plaintiff herein has no locus-standi and has no ground on law or on facts to prefer this suit. The Defendant No.8 has specifically denied all other plaint averments made in the plaint. Hence, prayed to dismiss the suit.
9. The Defendant No.8 has also filed additional written statement denied the contents of para No.3.9(a) of the plaint and has contended the Defendant No.8 has sold Item No.1 of the Suit Schedule Property along with other properties which were converted lands in favour of M/s Sterling Urban Infra Projects Limited under a Sale Deed dtd: 30.6.2010 registered as Document No.618/2010-2011. The Defendant No.8 has contended that the Plaintiff has not sought for cancellation of the Sale Deeds by paying appropriate court fee. The above 37 O.S.No.26279/2007 suit is totally barred by law of limitation. The above suit is liable to be dismissed on this ground alone. The Plaintiff is not entitled for any relief sought in the above suit and also against Defendant No.8. Hence, prayed to dismiss the suit with exemplary costs.
10. The Defendant No.13 filed his written statement contending that the suit of the Plaintiff is wholly false, frivolous and vexatious and is not maintainable either in law or on facts. The above suit has been filed with the sole intention of harassing the Defendants and coercing them to her illegal terms and to make lawful gains and to cause unlawful loss to the Defendants. The above suit lacks bonafide and hence the same is liable to be dismissed forthwith. The Plaintiff has not valued the suit properly and proper court fee has not been paid. On this ground also the suit is liable to be dismissed. The above suit is hopelessly barred by law of limitation and hence the above suit is liable to be dismissed as barred by time. The Defendant No.13 adopts the written statement filed 38 O.S.No.26279/2007 by Defendant No.8 from whom the Defendant No.13 purchased Item No.1 of the Suit Schedule Property in this case. The Defendant No.13 contended that he is the bonafide purchaser of Item No.1 of the Suit Schedule Property having purchased the same for a valuable consideration from its vendor i.e., the Defendant No.8 herein, who was the absolute owner of the said property. This Defendant purchased the said property after verification of the necessary documents and having been satisfied to the title of its vendors i.e., Defendant No.8. The Defendant No.13 along with the Item No.1 of the Suit Schedule Property has also purchased other properties belonging to Defendant No.8 for a total sale consideration of Rs.6,67,64,905/- under a registered Sale Deed dtd:
30.6.2010 which is registered as Document No.BNG(U)-
VRT/6181/2010-11 before the Sub-Registrar, Varthur, Bangalore District. This Defendant was put in possession of the Item No.1 of the schedule property along with other properties by Defendant No.8 on the date of said Sale 39 O.S.No.26279/2007 Deed and this Defendant has been in physical possession and enjoyment of the Item No.1 of the Suit Schedule Property as the absolute owner. The Property stands in the name of Defendant No.13 in the revenue records. The Defendant No.13 has contended that the Plaintiff has approached this Court with unclean hands by suppressing several material facts. The Plaintiff is not entitled to any reliefs and she is totally stranger to the Item No.1 of the Suit Schedule Property and is trying to illegally enrich herself by making false allegations by filing this false suit. This Defendant has specifically denied all other plaints averments made in the plaint. Hence, prayed to dismiss the suit.
11. The Defendant No.9 and Defendant 14 filed their separate written statement similarly contending that the suit filed by the Plaintiff for partition and separate possession in respect of the Suit Schedule Properties and the same is absolute perfect and justified and this Defendant is entitled for legitimate share in the Suit 40 O.S.No.26279/2007 Schedule Properties. The genealogy furnished by the Plaintiff in the plaint is correct and this Defendant has no reason to object the same and this Defendant has no reason to dispute the said facts and accept the same as true and correct. It is stated that the alleged execution of the Sale Deeds in favour of Defendant No.2 to 8, 12 and 13 is not binding in respect of legitimate share of this Defendant. The immovable properties are the agricultural commercial as well as residential properties owned and possessed jointly by the Plaintiff, Defendant No.1(a) to
(e), 9 to 11 and 14 together and all are together entitled share in the schedule properties as there was absolutely no partition at no point of time and at present. It is stated that the son of Defendant No.14 namely K. Nagaraj without division of the properties by metes and bounds had sold the schedule properties created third parties interest in favour of the Defendant No.2 to 8, 12 and 13 and the said alleged Sale Deeds are not binding on the share of 14th Defendant as she is entitled for a legitimate 41 O.S.No.26279/2007 share which she is entitled on the date of her husband Krishnappa. The Defendant has admitted the relationship between the parties, acquisition, inheritance and enjoyment of the schedule properties. Hence, prayed to decree the suit filed by the Plaintiff and for allot 1/4th share amongst all.
12. The Defendant No.10 and Defendant No.11 have adopted the written statement of Defendant No.9 hence prayed to decree the suit.
13. Based on the aforesaid pleadings this Court has framed the following issues:-
1) Whether the Plaintiff proves that the Suit Schedule Properties are the joint family properties of Plaintiff and Defendants liable for partition?
2) Whether the Plaintiff is entitled for 1/3rd share in the Suit Schedule Properties?
3) Whether the Plaintiff proves that 42 O.S.No.26279/2007 Sale Deed dtd:1.6.2000 and other Sale Deeds executed by Defendant No.1(a) to (e) in favour of the Defendant No.2 to 8 are null & void not binding on the Plaintiff?
4) Whether the Plaintiff is entitled for mesne profits?
5) Whether the suit is valued properly and court fee paid is sufficient?
6) What order or decree?
ADDITIONAL ISSUES
1) Whether the Defendant No.13 proves that he is bonafide purchaser of Suit Schedule Item No.1 Property for valuable consideration without notice of rights of the Plaintiff?
2) Whether the Defendant No.8 proves that he is a bonafide purchaser of Item No.1 of the Suit Schedule Property?
43 O.S.No.26279/2007
14. To prove the case of the Plaintiff, the Plaintiff got herself examined as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.38. The Defendant No.1(e) got examined himself as DW.1, Defendant No.13 as DW.2, Defendant No.2 as DW.3 and Defendant No.6 as DW.4, Defendant No.5 as DW.5 and got marked Ex.D.1 to Ex.D.46 and closed their side.
15. Heard both the sides.
16. My answers to the above issues are as follows:-
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Affirmative.
Addl.Issue No.1 : In the Affirmative.
Addl.Issue No.2 : In the Affirmative.
Issue No.6 : As per the final order
for the following:
44 O.S.No.26279/2007
REASONS
17. Issues No.1:- All these issues are inter-related, hence, answered in common, in order to avoid repetition of facts.
18. The nutshell of the plaintiffs case is that originally Sri. Gurreddi is the prepositus. He died leaving behind Krishnappa and Papamma as his LRs. The son Krishnappa died leaving behind his wife Smt.Chikkalakshmamma and three children namely K. Nagaraj, Parvathamma i.e. Plaintiff herein and Smt.Komala. K. Nagaraj died in the year 2003 leaving behind his wife Smt. C. Devi and childern Defendant No.1(a) to (e) herein. Smt. Komala died leaving behind Defendant No.9 to 11 as her LRs said Gorreddi had owned and possessed the Schedule Properties acquired out of the joint family funds by selling some of the joint family properties. The Item No.1 and 2 of the Suit Property was standing in the name of K. Nagaraj and after him the 45 O.S.No.26279/2007 revenue records changed in favour of the Defendant No.1(a) to 1(e). The Item No.3 to 5 of the Schedule Property are also ancestral properties belonged to the joint family. The Plaintiff being the daughter of Late Krishnappa and grand daughter of Gurreddi is entitled to share in all the Schedule Properties. The Plaintiff alleges that the Defendant No.1 has illegally sold Item No.2 to 5 of the Schedule Properties to the Defendant No.2 to 7. Hence it does not bind the Plaintiff's share as the same are null and void. Even after filing of the present suit the Defendant No.1(a) to (e) have executed Sale Deed dtd:24.9.2007 in respect of Item No.1 of the property in favour of 8th Defendant. The Plaintiff claims that her younger sister Komala and Defendant No.1(a) to (e) together entitled for equal share in Item No.1 of the Schedule Property. The Sale Deed executed by the 8 th Defendant in favour of 13th Defendant is hit by Section 52 of the Transfer of Property Act, therefore, the same is null and void and not binding on the Plaintiff's share etc. To 46 O.S.No.26279/2007 prove the case of the Plaintiff, the Plaintiff got herself examined as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.38.
19. On the other hand, the Defendant No.1(e) admitted the relationship between the parties and the existence of the schedule properties. According to him, Sri. Gurreddi - the original Propositor, the father of this Defendant was looking after the affairs of the joint family as Kartha and on his death the Defendant No.1(c) is looking after the affairs of the joint Kartha. The Defendant being the son of Late Nagaraj and grand son of Late Krishnappa is entitled for a share in the Suit Schedule Property. This Defendant was a minor and had absolutely no knowledge of his father alienating the properties on various dates to Defendants. The Defendant No.9 to 14 sailing with the plaintiff hence prayed to decree the suit
20. The Defendant No.3 to 5 claims that, the suit is barred by limitation. All the joint family properties are not the subject matter of the suit and as such the suit is for 47 O.S.No.26279/2007 partial partition and is not maintainable. The Item No.2 and 3 of the Suit Schedule Property has been changed to non-agricultural purpose vide order dtd: 20.1.2003. Therefore, the court fee paid by the Plaintiff is insufficient. The suit Item No.2 Property was sold on 1.6.2000 i.e., prior to the amendment of the Hindu Succession Act. The Sale Deed in question was executed prior to 20.12.2004 and as such is saved by Proviso to Section 6 of the Hindu Succession Act. The Sale Deed dtd: 1.6.2000 shows that there was a partition on 13.10.1985 and that the Sale Deed was executed by Late Sri. K. Nagaraj and Defendant No.1(a) to (e) in favour of Defendant No.2 & 3 for the purpose of family commitments, legal necessities and for the benefit of their family members. Therefore, there is no illegality whatsoever. The suit is also bad for non-joinder of necessary parties. The Plaintiff has not made the site owners as party to the instant suit etc.
21. The Defendant No.6 the purchaser of Item No.4 of the Schedule Property under a registered Sale Deed 48 O.S.No.26279/2007 dtd: 23.2.1994, claims that he acquired absolute title in the year 1995-96 and constructed a residential house comprising main house and out house in the ground floor and he is in possession and enjoyment of the Item No.4 of the Schedule Property.
22. The Defendant No.8 contended that the above suit has been filed with the sole intention of harassing the Defendants and coercing the Defendant No.8 to terms and to make unlawful gains. The Plaintiff has paid the court fee only for partition of the properties and not for declaration of the Sale Deeds as null and void prayed by the Plaintiff. The suit is not properly valued and proper court fee has not been paid by the Plaintiff. The Defendant No.8 is the bonafide purchaser of the Item No.1 of the Schedule Property purchased from his vendors under a registered Sale Deed dtd: 24.9.2007. The Defendant No.8 has sold Item No.1 of the Suit Schedule Property along with other properties which were converted lands in favour of M/s Sterling Urban Infra 49 O.S.No.26279/2007 Projects Limited under a Sale Deed dtd: 30.6.2010. The Defendant No.8 has contended that the Plaintiff has not sought for cancellation of the Sale Deeds by paying appropriate court fee. The above suit is totally barred by law of limitation.
23. The Defendant No.13 contended that he is the bonafide purchaser of Item No.1 of the Suit Schedule Property having purchased the same for a valuable consideration from its vendor i.e., the Defendant No.8 herein, who was the absolute owner of the said property. They are in physical possession and enjoyment of the Item No.1 of the Suit Schedule Property as the absolute owner.
24. Upon careful going through the materials available on record, it indicates that as per the genealogical tree produced by the Plaintiff at Ex.P.38, it indicates that Nanjundappa is the Propositor who had Muniswamappa and Gurreddappa as his children. Muniswamappa left behind Nanjundappa who had three 50 O.S.No.26279/2007 children Munireddy, Venkatalaxmamma and Pramilamma. Gurreddappa had two children Krishnappa and Papamma. Krishnappa had three children K. Nagaraj, K.Parvathamma i.e., the Plaintiff and K. Komala. The Defendant No.1(a) to
(e) are the LRs of Nagaraj and Defendant No.9 to 11 are the LRs of Komala. However, upon perusal of case papers, it indicates that the relationship of Plaintiff as daughter of Krishnappa is not in dispute. It is significant here to note that Plaintiff neither arrayed the legal representatives of Papamma nor descendants of Muniswamappa muchless Lrs of Nanjundappa. It is useful to note here that Plaintiff's case is backed by Defendant No.1(a) to (e) and Defendant No.9 to 11 and 14. That means to say, Plaintiff, Defendant No.1(a) to (e) and Defendant No.9 to 11 and 14 are seeking decree for partition and allotment of their respective shares. The present suit is contested by Defendant No.2 to 8 and 13 who were all purchasers of the Suit Property under various documents. Upon careful perusal of the case of the Plaintiff, it indicates that 51 O.S.No.26279/2007 according to her, Suit Properties are joint family properties and she is entitled for 1/3rd share. She also makes allegations that Defendant No.1(a) to (e) have sold Item No.1 of the Suit Property to Defendant No.8 during the pendency of this suit. Interestingly, the Defendant No.1(e) is also one of the participant of sale made in favour of Defendant No.8 denies the execution of sale. However, in his cross-examination he admits it and claimed ignorance. It is useful to note here that even though Plaintiff has cited total five properties in the Suit Schedule, admittedly none of the properties were available with the family of either Plaintiff or Defendant No.1(a) to (e). Rather, admittedly, all these properties were sold in favour of Defendant No.2 to 8 and 13. Most importantly, except Item No.1, all other properties were sold out prior to 2004. In support of her claim Plaintiff has relied upon Ex.P.1 to Ex.P.38 i.e., Certified copy of Sale Deed dtd: 1.6.2000, RTCs, Certified copy of the Mutation Register Extract, Three Khatha Extracts, Tax Paid receipt, 52 O.S.No.26279/2007 Certified copy of the Sale Deed dtd: 1.6.2000, Office copy of letter dtd: 23.11.2007 addressed to the Tahsildar, RTCs, Certified copies of Sale Deeds, Encumbrance Certificate, Postal Acknowledgements and Genealogical Tree.
25. The documents produced by the Plaintiff indicates that Ex.P.1 Certified copy of the Sale Deed dtd:1.6.2000 which is executed by Defendant No.1(a) to 1(e) in respect of Item No.2 of the Suit Schedule Property. It is important to note here that at Page No.2 of the Sale Deed it is clearly mentioned that:
"The said land has been purchased by the grand father of the Vendor No.1 under the Sale Deed dtd: 18.5.1961 ............... in an informal partition made on 13.10.1985 between the Vendor No.1 and surviving co-parcener Muni Reddy (since deceased) the said land came to the share of Vendor No.1 herein, holding as Kartha of the Hindu Undivided Family.53 O.S.No.26279/2007
26. That means to say, Nagaraj who is the brother of Plaintiff herein himself sold the Suit Schedule Property as the Kartha of the Joint Family, much prior to 2004. Ex.P.2 to Ex.P.6 are the RTCs which indicates that till 2004-2005 Item No.1 stood in the name of Munishamappa and from 2006 onwards it changes in favour of Defendant No.1(a) to (e). So also RTC of Item No.2 indicates that the Suit Property was converted for non-agricultural purpose on 31.7.2004 itself. This fact is not revealed by the Plaintiff in the pleading. However, the Plaintiff herself produced the Mutation, which indicates conversion of land vide Order dtd: 20.1.2003. The Plaintiff got placed Khatha Extract in respect of Item No.1, which stands in the name of Defendant No.13. The Item No.4 stands in the name of one Chandrashekharaiah who is Defendant No.6 herein. The Item No.5 stands in the name of Damodara who is Defendant No.7 herein. The Plaintiff also got placed Ex.P.24 another Sale Deed dtd: 21.4.2003 wherein Defendant No.1(a) to 1(e) have sold Item No.3 of the Suit 54 O.S.No.26279/2007 Schedule Property in favour of Lakshmipathi wherein at Page No.2 it is categorically mentioned by the Vendor that:
ಆದದಗ ಬಬಬಗಳಳರರ ಸಟ ಕದಪರಬರರಷನನ 1 ನಬರ ಡವಷನಬನ ಸಬರರರರವ ಯಶವಬತಪಪರ ಸವಬರನ ಕದಪರಬರರಷನನ 36 ನಬರ ನಬಬರನ ಸಸತರತ ನಮಮಗಳ ಒಟರಟ ಕರಟರಬಬಕಬಕ ಸಬರರದ ಪತದತರರತವದಗ ಬಬದ ಸಸತದತಗದರದ ಸದರ ಸಸತತನರನ ದವಬಗತತ ನಬಜರಬಡಪಪ ರವರ ಮಗ ಶತರ ಎನನಮರನರಬಡಡ ಹದಗರ ಶತರ ಕಬ.
ನದಗರದಜರ ಆದ ನದವಪಗಳಬಬರಳ ಸಬರರ ದನದಬಕತ 17-11- 1985 ರಬದರ ಬಬಬಗಳಳರರ ಸಟ ನಬಳರಟರ ರವರ ಸಮಕಕಮ ದದಢರಕರಸರರವ ಪಬಚದಯತ ಪದರರಖತನ ಯದ ವಭದಗ ಪತತದ ಬ-ಷಬಡಳಡಲನ ಮಳಲಕ ಶತರ ಕಬ.ನದಗರದಜರ ಆದ ನನನ ಹಸಬಸಗಬ ಬಬದರರವ ಪಬಕಡಳಡಲನ ಸಸತತಗಬ ನದವಪಗಳಬರ ಸಬಪಪರರ ಹಕರಕದದರರಳ, ಸದಸಧರನಗದರರಳ, ಮದಲರಕರದಗ ನದವಪಗಳಬರ ನಮಮಗಳ ಸಬಪಪರರ ಹಕಕನಬಳಡನಬ ಅನರಭವಸಕಬಳಬಡರ ಬರರತತರರವಪದರ ಸರಯಷಬಷ.
27. Apart from that at Page No.3, it is specifically mentioned that:55 O.S.No.26279/2007
36 ನಬರ ನಬಬರನ ಖದಲ ನವಬರಶನವನರನ ನಮಮ ಗಳ ದರದರ ನಮತಡವದಗ ಅಬದರಬ ನದವಪಗಳರ ಇತರಬ ಗದಹಕದತಡದ ಖಚನರ ಕದರರಗಳಗದಗ ನನಗಬ ಜರಳರರ ಮಬಲಗರ ಬಬರಕದಗರರವಪದರಬದ .....................
28. The Plaintiff got placed Ex.P.5 which is the Sale Deed pertaining to Item No.1 of the Suit Property. Ex.P.24 is the Sale Deed dtd: 28.2.2000 wherein Defendant No.1 sold Item No.5 in favour of Damodaran. The Plaintiff also got placed Ex.P.28 which is the Sale Deed of the year 1987 executed by Defendant No.1 in favour of Parveen, in the said Sale Deed also there is a mention about previous partition. However, said Parveen in turn sold the said property in favour of Chandrashekharaiah. Upon careful perusal of documentary evidence produced by the Plaintiff admittedly none of the Suit Properties were available in the joint family as of now. All the Suit Properties were already parted with and except Item No.1 of the Suit Schedule Property all other properties were alienated prior to 2004.56 O.S.No.26279/2007
29. On the other hand the defendants are relying upon Ex.D.1 to Ex.D.46 i.e., SSLC Marks Card of DW.1, Birth Certificate of DW.1, Sale Deed dtd: 24.9.2007, RTCs, Certified copy of Partition Deed, Declaration made by Yashodamma and Others, Mutation Register Extract, Tax paid receipt, Certified copy of the Sale Deed dtd:30.6.2010, Original GPA dtd: 18.2.2003 executed by Defendant No.2 and 3 in favour of Sri. K. Sathish Kumar, RTC for the year 2000-01 in respect of Item No.2 of the Suit Schedule Property, Certified copy of the Sale Deed dtd: 1.6.2000 executed by Mr. K. Nagaraj & Others in favour of Defendant No.2 and3 in respect of Item No.2, Certified copy of the Mutation Register No.9/2000-01, Certified copy of Encumbrance Certificate, Certified copy of the order dtd: 20.1.2003 passed in BDS:ALN(E) VB:SR/36-2002-03 passed by the Deputy Commissioner, Sale Deed dtd: 21.4.2003, Khtha Certificate dtd: 5.7.2019, Khatha Extract dtd: 5.7.2019, Tax paid receipts, Letter dtd: 27.10.2018 issued by Soundarya Souharda Credit Co- 57 O.S.No.26279/2007
Operative Society Ltd, Encumbrance Certificates, Sanction Plan dtd: 24.11.2003. On perusal of documentary evidence relied by the Defendant, it indicates that Defendant also got placed very same Sale Deeds which is placed by the Plaintiff and subsequent RTCs and Tax Paid Receipts etc.
30. At this stage, it is important to have a look at the judgment of Honorable supreme court in Vinetha Sharma's case which is relied by both parties.
31. In the landmark Judgment Hon'ble Supreme Court of India settled the proposition of law regarding Section 6 of the Hindu Succession Act, wherein it is mandated by the constitution bench that:
Hindu Succession Act, 1956 (in short, 'the Act of 1956') as amended by Hindu Succession (Amendment) Act, 2005 (in short, 'the Act of2 2005') has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in 58 O.S.No.26279/2007 Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC
343. In other connected matters, the question involved is similar; as such, they have also been referred for hearing along. In Ref. Section 6(5) . The Explanation to Section 6(5) provides that for the purposes of Section 6, 'partition' means effected by any registered partition deed or effected by a decree of a court. It is pertinent to mention that Explanation did not find place in the original Amendment Bill moved before the Rajya Sabha on 20.12.2004. The same was added subsequently. In the initial Note, it was mentioned that partition should be properly defined, leaving any arbitrary interpretation, and for all practical purposes, the partition should be evinced by a registered public document or have been affected by a decree of a court. In a case partition is oral, it should be supported by documentary evidence. Initially, it was proposed to recognize the oral partition also, in case the same is supported by contemporaneous documentary evidence.
The intention was to avoid any sham or bogus 59 O.S.No.26279/2007 transactions in order to defeat the rights of coparcener conferred upon daughters by the Amendment Act, 2005. In this regard, Note for Cabinet issued by the Legislative Department, Ministry of Law & Justice, Government of India, suggested as under:
"As regards sub section 5 of the proposed new section 6, the committee vide paragraph has recommended that the term "partition"
should be properly defined, leaving any arbitrary interpretation. Partition for all practical purposes should be registered have been effected by a decree of the Court. In case where oral partition is recognized, be backed by proper documentary evidence. It is proposed to accept this recommendation and make suitable changes in the Bill."
.............................. However, any coparcener relying upon any such family arrangements or oral partition so arrived must prove the same by leading proper documentary evidence.
Section 6(5) as proposed in the original Bill of 2004 read thus: "(5) Nothing contained in this section shall apply to a partition, which has been effected before the commencement of 60 O.S.No.26279/2007 the Hindu Succession (Amendment) Act, 2004."
Shri R. Venkataramani, Amicus Curiae, argued that proviso to Section 6 is plain and clear. All dispositions, alienations, testamentary depositions, including partition effected prior to 20.12.2004, shall not be reopened.
There may be a partition of coparcenary property, and they would have also acted in pursuance of such partition. There could be any number of instances where parties would have entered into family settlements or division of properties on the basis of respective shares or entitlement to succeed on a partition. In many of those cases, a simple mutation in revenue entries would have been considered as sufficient for severance of status. The Parliament did not intend to upset all such cases, complete transactions, and open them for a new order of succession. The partition effected merely to avoid any obligation under any law, for example, the law relating to taxation or land ceiling legislation, are not examples relevant for understanding the 61 O.S.No.26279/2007 objects and scheme of Section 6.
Therefore, the proviso to subSection (1) of Section 6 and subSection 5 of Section 6 is required to be given such meaning and extent to not dilute the relevance in the forward and future looking scheme of Section 6.
.............. The intendment of amended
Section 6 is to ensure that daughters
are not deprived of their rights of
obtaining share on becoming coparcener
and claiming a partition of the
coparcenary property by setting up the
frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5).
......................... In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
62 O.S.No.26279/2007
"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum 63 O.S.No.26279/2007 itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to
the family arrangement must have some
antecedent title, claim or interest even a
possible claim in the property which is
acknowledged by the parties to the
settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
64 O.S.No.26279/2007In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292, 295, it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus: "Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess."" (emphasis supplied) 65 O.S.No.26279/2007 It is settled law that family arrangements can be entered into to keep harmony in the family. ........................... In Kalwa Devdattam v. Union of India, AIR 1964 SC 880, it was laid down that when a purported petition is proved to be a sham, the effect would be that the family is considered joint. Earlier, an oral partition was permissible, and at the same time, the burden of proof remained on the person who asserted that there was a partition. It is also settled law that Cesser of Commonality is not conclusive proof of partition, merely by the reason that the members are separated in food and residence for the convenience, and separate residence at different places due to service or otherwise does not show separation.
Several acts, though not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint
property, definement of shares in the joint property in the revenue of land registration records, mutual transactions, as observed in Bhagwani v. Mohan Singh, AIR 1925 PC 132, and Digambar Patil v.
66 O.S.No.26279/2007Devram, AIR 1995 SC 1728. 123. There is a general presumption that every Hindu family is presumed to be joint unless the contrary is proved. It is open even if one coparcener has separated, to the non-
separating members to remain joint and to enjoy as members of a joint family. No express agreement is required to remain joint. It may be inferred from how their family business was carried on after one coparcener w s separated from them. Whether there was a separation of one coparcener from all other members of a joint family by a decree of partition, the decree alone should be looked at to determine the question was laid down in Palani Ammal (supra) and Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124. In Palani Ammal (supra),
it was held: "...... It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, 67 O.S.No.26279/2007 may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved...."
In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid down that in case there are two coparcener brothers, it is not necessary that there would be a separation interse family of the two brothers. The family of both the brothers may continue to be joint. The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting 68 O.S.No.26279/2007 definite shares till final decree is passed. There are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also.
The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved. A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition.
However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the 69 O.S.No.26279/2007 intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener.
When such a defence is taken, the Court has to be veryemely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous 70 O.S.No.26279/2007 documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs.
We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact 71 O.S.No.26279/2007 that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place. The expression use Explanation to Section 6(5) 'partition effected by a decree of a court' would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, hat is effected y passing of a final decree; thus, statutory provisions are to e given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely 72 O.S.No.26279/2007 intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.
129. Resultantly, we answer the reference as under:
(I) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from
9.9.2005 with savings as provided in Section 73 O.S.No.26279/2007 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20 th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 74 O.S.No.26279/2007 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
32. In this background, if we analyze the evidence of the Plaintiff who made categorical admission in her cross examination as under:
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82 O.S.No.26279/2007
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UÉÆwÛ®è. zÁªÁ D¹ÛAiÀÄÄ £À£Àß ªÀÄÄvÁÛvÀ¤AzÀ 83 O.S.No.26279/2007 §AzÀ D¹ÛAiÀiÁVzÀÄÝ, £À£Àß ªÀÄÄvÁÛvÀ¤AzÀ ºÉÃUÉ §AvÀÄ £À£ÀUÉ w½¢®è. D §UÉÎ AiÀiÁªÀÅzÉà zÁR¯Áw £À£Àß°è E®è. zÁªÉ zÁR°¸ÀĪÁUÀ £ÁUÀgÁeï EªÀgÀÄ fêÀAvÀ EgÀ°®è CAzÀgÉ ¸Àj. zÁªÁ D¹Û £ÁUÀgÁeï EªÀjUÉ ¸ÉÃjzÀ D¹ÛAiÀÆVzÀÄÝ CªÀgÀÄ CzÀ£ÀÄß ªÀiÁgÁl ªÀiÁqÀĪÁUÀ £À£ÀUÉ CzÀgÀ°è AiÀiÁªÀÅzÉà ºÀPÀÄÌ EgÀ°®è CAzÀgÉ ¸ÀjAiÀÄ®è. £À£Àß ªÀÄvÀÄÛ £ÁUÀgÁeï ¸ÀA§AzÀ ZÉ£ÁßVvÀÄÛ. £Á£ÀÄ £ÁUÀgÁeï EªÀgÀ ªÀÄ£ÉUÉ 2018 r¸ÉA§gï ªÀgÉUÉ £À£Àß vÁ¬ÄAiÀÄ£ÀÄß £ÉÆÃqÀ®Ä ºÉÆÃV §gÀÄwÛzÉÝ. £ÁUÀgÁeï EªÀgÀÄ D¹ÛAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁrgÀĪÀ «µÀAiÀÄ £À£ÀUÉ w½¢zÀÝgÀÆ ¸ÀºÀ £Á£ÀÄ vÀPÀët zÁªÉ zÁR°¹®è JAzÀgÉ ¸ÀjAiÀÄ®è. F zÁªÉAiÀÄ£ÀÄß £ÁUÀgÁeï EªÀgÀ ªÁgÀ¸ÀÄzÁgÀgÀÄ ªÀÄvÀÄÛ £À£Àß ªÀÄÈvÀ vÀAVAiÀÄ ªÀÄPÀ̼ÀÄ ¸ÉÃjPÉÆAqÀÄ zÀįÁð¨Às ¥ÀqÉAiÀÄĪÀ GzÉÝñÀ¢AzÀ zÁR°¹zÉÝÃªÉ CAzÀgÉ ¸ÀjAiÀÄ®è. 84 O.S.No.26279/2007
33. In the background of the mandates laid down by the Hon'ble Supreme Court in the Vinitha Sharma case, coupled with the admission of Plaintiff and documentary evidence relied by the Plaintiff, it indicates that it is undisputed that none of the Suit Properties were available to the Joint Family as on the date of suit much less before December 2004 except Item No.1. The Item No.2 to 5 of the Suit Properties were already been alienated by the Defendant No.1(a) to 1(e) much prior to 20.12.2004. The Hon'ble Supreme Court in their Judgment clearly mandated that, the rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20 th day of December 2004. Apart from that the oral partition is also permissible.
34. For the sake of convenience provision of section 6 reproduced, herewith as under 85 O.S.No.26279/2007
6. Devolution of interest in coparcenary property. --
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a co-parcener shall,--
(a) by birth become a co-parcener in her own right in the same manner as the son;
(b) have the same rights in the co-parcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara co-parcener shall be deemed to include a reference to a daughter of a co-
parcener: Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
35. As mentioned above, here in the case, the documents relied by the Plaintiff itself clearly indicates that there is a partition in their family much prior to 2004. Apart from that the RTCs produced by the Plaintiff itself clearly indicates that said partition is acted upon. Even though Plaintiff herein is not a party to the said Partition 86 O.S.No.26279/2007 Deed, but till this day, she has not questioned the said partition. Apart from that the Sale Deeds indicates that the alienation made by K. Nagaraj as the Kartha of the family for family benefits and family necessities. Hence, this also comes to the aid of the Defendant in protecting their rights as bonafide purchasers. Apart from that Plaintiff who was having every knowledge about the previous partition and alienation, kept silent all these years and all of a sudden come up with this suit for partition without seeking the relief for cancellation of Sale Deed and for possession of Suit Property, hence as rightly contended by learned counsel for Defendant No.2 to 8 and 13, it clearly pulls down the case of the plaintiff dramatically. Unless and until, Plaintiff seeks cancellation of Sale Deeds and possession of her share in the Suit Property her claim for partition cannot be entertained at all. Apart from that, Defendant No.1(a) to 1(e), D.9 to 11 and 14 who were backing the case of the Plaintiff by claiming counterclaim, but ironically they themselves 87 O.S.No.26279/2007 whole heartedly sold all the Suit Schedule Property along with Nagaraj who is the Kartha of the family. Hence, Defendant No.1(a) to (e) have no right or authority to dispute the alienation in favour of Defendant No.2 to 7 much less to Defendant No.8 or Defendant No.13. However, even though Plaintiff has got right to seek cancellation of Sale Deed in respect of her share in Item No.1 of the Suit Property, but unless and until she comes up with a case for cancellation of Sale Deed and possession by paying requisite court fee, she is not entitled to maintain the suit for partition as for as Item No.1 is concern. Apart from that, the documents on record clearly indicates that Item No.1 of the Suit Schedule Property is the converted land and sites were formed in the Suit Property, which has already been sold in favor of different persons, admittedly the purchasers are in physical possession of their respective property. Hence, unless and until Plaintiff array them as parties in the suit and seek for cancellation of Sale Deed by paying court fee 88 O.S.No.26279/2007 on the market value, her suit for partition is not maintainable. However as for as Item No.2 to 5 are concerned, as discussed above the mandate of Hon'ble Supreme Court in Veneetha Sharma's case, come to the aid of purchasers for the simple reason that, all the said alienations were made before December 2004 that too by the Kartha of the family for the family necessity much less the said alienation is supported by Defendant No.1(a) to
(e). Apart from that there is clear evidence of partition effected in the family prior to 2004.
36. As rightly argued by the Learned Counsel for the Defendant No.13 neither the descendent's of Munishamappa or Nanjundappa were made as party here. Hence, suit also hit by non-joinder of necessary parties. Under these circumstances, I hold that Plaintiff utterly failed in proving that Suit Properties are available for partition and there exists joint family consisting of Plaintiff, Defendant No.1(a) to (e) and Defendant No.9 to
11. 89 O.S.No.26279/2007
37. Even though, Plaintiff has sought for cancellation of Sale Deed executed by Defendant No.1(a) to (e) in favour of Defendant No.2 to 8 are null and void and not binding etc. But in view of the discussion made above, Sale Deeds in favour of Defendant No.2 to 7 were much prior to 2004. Apart from that, admittedly, neither Plaintiff nor any of the members of the joint family were holding possession or title of the Suit Property as on the date of the suit. Hence, as rightly argued by the Learned Counsel for Defendant No.2 to 8 and 13, unless and until Plaintiff seeks for cancellation of Sale Deeds and possession the suit Property by paying proper court fee, a simple suit for partition is not maintainable.
38. As rightly argued by Learned Counsel for the Defendant No.2 to 8 and 13 that Defendant No.1 9 to 11 and 14 colluding with the Plaintiffs have filed this suit to make unlawful gain. The Plaintiffs herein have every knowledge about formation of sites and alienating it to the purchasers. Inspite of that she deliberately avoided 90 O.S.No.26279/2007 them to array as parties. It is significant to note here that the The counsel for Defendant No.8 contention that the above suit has been filed with the sole intention of harassing the Defendants and coercing the Defendant No.8 to terms and to make unlawful gains cannot be ruled out blindly. Hence as rightly contended by learned counsel for Defendant No.2 to 8, the Plaintiff has paid the court fee only for partition of the properties and not for declaration of the Sale Deeds as null and void, the suit is not properly valued and proper court fee has not been paid by the Plaintiff. The Defendant No.8 is the bonafide purchaser of the Item No.1 of the Schedule Property purchased from his vendors under a registered Sale Deed dtd: 24.9.2007. The Defendant No.8 has sold Item No.1 of the Suit Schedule Property along with other properties which were converted lands in favour of M/s Sterling Urban Infra Projects Limited under a Sale Deed dtd:30.6.2010. The Defendant No.8 has specifically contended that the Plaintiff has not sought for 91 O.S.No.26279/2007 cancellation of the Sale Deeds by paying appropriate court fee. The above suit is totally barred by law of limitation. It is the specific claim of the contesting Defendants that the Plaintiffs having every knowledge and information about all the alienations made in favour of the present Defendants, in spite of that without seeking the relief of cancellation of Sale Deed, they have approached the Court with unclean hand by suppressing true and material facts. The Plaintiffs ought to have file the suit for possession and declaration to declare the Sale Deeds in favour of Defendants as null and void. The Plaintiffs ought to have paid the necessary court fee. Instead, the Plaintiffs have approached the Court suppressing true and material facts without paying any court fee. Hence, the present suit is not maintainable.
39. The Judgment of Hon'ble High Court of Karnataka between Aralappa and etc. V/s Jagannath and Ors. In F.A.Nos.40 and 118 of 1989 dtd: 24.8.2006 wherein it is observed that:
92 O.S.No.26279/2007
'- Held when the Plaintiff is not in possession of the property as on the date of the suit and does not seek relief of possession in a mere suit for declaration is not maintainable.'
40. In another Judgment of our Hon'ble High Court between Chikkathamaiah and others V/s Chikkahutchiah and others in Civil Revn.Petn.No.2682 of 1975, out Lordship held that:
Civil Procedure Code, 1908, Order 7, Rule 7 - Specific Relief Act, 1963, Section 34 - Plaint Declaration of Title -
Injunction - Sale - A joint Hindu family consisting of father and sons executed sale deed of ancestral property in favour of 'X' - After the death of father sons claiming title from their father brought a suit against 'X' for declaration of title and permanent tretating to property on the shown that the sale was obtained by 'X' by undue influence and 93 O.S.No.26279/2007 fraud and was not binding on them it was held that the suit was not maintainable unless the Plaintiffs sought for cancellation of the sale deed even though they were not parties to it.
41. The ratios laid down by their lordships in the above referred judgment squarely applicable to the case on hand. Hence as rightly contended by the The Defendant No.8. The Plaintiff has paid the court fee only for partition of the properties and not for declaration of the Sale Deeds as null and void. The suit is not properly valued and proper court fee has not been paid by the Plaintiff for cancellation of sale deeds. The Plaintiff has not sought for cancellation of the Sale Deeds by paying appropriate court fee hence suit is not maintainable. Added to that, the suit Item No.2 Property was sold on 1.6.2000 i.e., prior to the amendment of the Hindu Succession Act. The Sale Deed in question was executed prior to 20.12.2004 and as such is saved by Proviso to 94 O.S.No.26279/2007 Section 6 of the Hindu Succession Act. The Defendant No.8 purchased the Item No.1 of the Schedule Property purchased from his vendors under a registered Sale Deed dtd: 24.9.2007. The Defendant No.8 has sold Item No.1 of the Suit Schedule Property along with other properties which were converted lands in favour of M/s Sterling Urban Infra Projects Limited under a Sale Deed dtd:
30.6.2010, hence the above suit is hopelessly barred by law of limitation also. Hence I answer Issue No.1 to 4 in the Negative and Issue No.5 in the Affirmative.
42. Additional Issue No.1 and 2:- The Defendant No.8 claims that he is the bona fide purchaser of the Item No.1 of the schedule property purchased from his vendors under a registered Sale Deed dtd: 24.9.2007 . Defendant No.8 has sold Item No.1 of the Suit Schedule Property along with other properties which were converted lands in favour of M/s Sterling Urban Infra Projects Limited under a Sale Deed dtd: 30.6.2010. The Defendant No.3 to 5 claims that Item No.2 and 3 of the Suit Schedule Property has 95 O.S.No.26279/2007 been changed to non-agricultural purpose vide order dtd:20.1.2003. Therefore, the court fee paid by the Plaintiff is insufficient. The suit Item No.2 Property was sold on 1.6.2000 i.e., prior to the amendment of the Hindu Succession Act. The Sale Deed in question was executed prior to 20.12.2004 and as such is saved by Proviso to Section 6 of the Hindu Succession Act. The Sale Deed dtd:1.6.2000 shows that there was a partition on 13.10.1985 and that the Sale Deed was executed by Late Sri. K. Nagaraj and Defendant No.1(a) to (e) in favour of Defendant No.2 & 3 for the purpose of family commitments, legal necessities and for the benefit of their family members. Therefore, there is no illegality whatsoever they are the bonafide purchasers of the suit property for value etc.
43. As mentioned above, the Sale Deeds clearly indicates that the Suit Schedule Properties were sold by Kartha of the Joint Family for the benefit of family and to meet the family expenses. Apart from that Defendant also 96 O.S.No.26279/2007 got placed registered Partition Deed entered into between the Defendant No.1(a) to (e) and others. It is claimed by the Defendant No.2 to 8 that Defendant No.1(a) to (e) have placed all relevant materials to establish their right, title and interest over the Suit Schedule Property. The Defendants after verifying all those documents in consultation with legal experts have moved forward to purchase those properties. Here in the case, admittedly, Plaintiff in no way attempted to bring to the notice of the purchasers about her right of share in the Suit Schedule Property. Rather, inspite of the alienations were of the year 2000 and 2003, till 2007 Plaintiff did not choose to question those alienations. Hence, viewed at any angle, Plaintiff utterly failed in establishing the fact that Defendant No.2 to 8 knowing fully well about her right over the Suit Schedule Property have purchased the Suit Property. On the other hand, the materials on record clearly indicates that the Defendant No.2 to 8 have taken all possible steps to ensure that the vendors have 97 O.S.No.26279/2007 marketable and alienable title to sell it in their favour.
Hence, I am of the opinion that Defendant No.2 to 8 established that they are the bonafide purchasers. Hence Additional Issue No.1 and 2 are answered in the Affirmative.
44. Issue No.6:- In view of the above discussion, I proceed to pass the following:-
ORDER The suit of the Plaintiff is hereby dismissed with costs.
Draw decree accordingly.
[Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 3rd day of January 2022].
[K.M. Rajashekar], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.98 O.S.No.26279/2007
SCHEDULE PROPERTIES ITEM NO.1 All that piece and parcel of immovable property being the agricultural land bearing Sy.No.24/2B measuring 10.5 guntas situated at Amani Bellandur Kane Village, Varthur Hobli, Bangalore East Taluk (formerly Bangalore South Taluk) and bounded on the:
East : Private Property.
West : Private Property.
North : Private Property.
South : Private Property.
ITEM NO.2
All that piece and parcel of immovable property being the agricultural land bearing Sy.No.5 measuring 3 Acres 29 guntas situated at Haralur Village, Varthur Hobli, Bangalore East Taluk (formerly Bangalore South Taluk) and bounded on the:99 O.S.No.26279/2007
East : Private Property.
West : Private Property.
North : Private Property.
South : Private Property.
ITEM NO.3
All that piece and parcel of immovable property being the house site bearing No.36, presently PID No.3-72-36 situated at 1st Main Road, Gokul 1st Stage, 4th Phase, Yeshwanthpur, Ward No.3, measuring East West : 105 Feet, North South : 46 feet, totally measuring 4400 sq.ft., and bounded on the:
East : 1st Main Road. West : Private Property. North : Private Property.
South : Patel Nanjappa Reddy's Property.100 O.S.No.26279/2007
ITEM NO.4 All that piece and parcel of immovable property being house site bearing No.20, presently PID No.3-62-20 situated at Old Panchayath Road, Yeshwanthpur, Ward No.3, measuring East West : 48 Feet, North South : 26 Feet, totally measuring 1071.6 sq.ft., and bounded on the:
East : House belonging to Vallabharaya.
West : Road.
North : Yellappa Reddy's Property.
South : Lingamma's Property.
ITEM NO.5
All that piece and parcel of immovable property being the house site bearing No.52/1A, situated at Ramadas Road, Yeshwanthpur, Ward No.3, measuring East West : 20 Feet, North South : 12 Feet, totally measruing 240 sq.ft., and bounded on the:
East : Late Patel Yellappa Reddy's Property. 101 O.S.No.26279/2007
West : Private Property.
North : Road.
South : Pipeline Road.
ANNEXURE
1. List of witnesses examined for the plaintiff:-
P.W.1 : K. Parvathamma.
2. List of documents marked:-
Ex.P 1 : Certified copy of Sale Deed dtd:
1.6.2000.
Ex.P 2 : RTCs.
to
6
Ex.P 7 : Certified copy of the Mutation Register
Extract.
Ex.P 8 : Three Khatha Extracts.
to
10
Ex.P 11 : Tax paid receipt.
Ex.P 12 : Certified copy of the Sale Deed dtd:
1.6.2000.
102 O.S.No.26279/2007
Ex.P 13 : Office copy of letter dtd: 23.11.2007
addressed to the Tahsildar.
Ex.P 14 : RTCs.
to
23
Ex.P 24 : Certified copies of Sale Deeds.
to
29
Ex.P. 30 : Encumbrance Certificate.
Ex.P 31 : Postal Acknowledgements.
to
37
Ex.P 38 : Genealogical Tree.
3. List of witnesses examined for the defendants:-
DW.1 : N. Kishore.
DW.2 : S.V. Ramani Sastri.
DW.3 : K. Satish Kumar.
DW.4 : P. Chandra Shekaraiah.
DW.5 : K. Venkatesh Murthy.
4. List of documents marked:-
Ex.D 1 : SSLC Marks Card of DW.1.
103 O.S.No.26279/2007
Ex.D 2 : Birth Certificate of DW.1.
Ex.D 3 : Sale Deed dtd: 24.9.2007.
Ex.D 4 : RTCs.
to
7
Ex.D 8 & : Certified copy of Partition Deed.
9 Ex.D 10 : Declaration made by Yashodamma and Others.
Ex.D 11 : Mutation Register Extract.
&
12
Ex.D 13 : Tax paid receipt.
Ex.D 14 : Certified copy of the Sale Deed
dtd:30.6.2010.
Ex.D 15 : Original GPA dtd: 18.2.2003 executed by
Defendant no.2 and 3 in favour of Sri. K. Sathish Kumar.
Ex.D 16 : RTC for the year 2000-01 in respect of Item No.2 of the Suit Schedule Property. Ex.D 17 : Certified copy of the Sale Deed dtd:
1.6.2000 executed by Mr. K. Nagaraj & Others in favour of Defendant No.2 and 3 in respect of Item No.2.
Ex.D 18 : Certified copy of the Mutation Register No.9/2000-01.
104 O.S.No.26279/2007Ex.D 19 : Certified copy of Encumbrance Certificate.
Ex.D 20 : Certified copy of the order dtd:
20.1.2003 passed in BDS:ALN(E) VB:SR/36-2002-03 passed by the Deputy Commissioner.
Ex.D 21 : Sale Deed dtd: 21.4.2003.
Ex.D 22 : Khatha Certificate dtd: 5.7.2019.
Ex.D 23 : Khatha Extract dtd: 5.7.2019.
Ex.D 24 : Tax paid receipts.
to
42
Ex.D 43 : Letter dtd: 27.10.2018 issued by
Soundarya Souharda Credit Co-
Operative Society Ltd.
Ex.D 44 : Encumbrance Certificates.
&
45
Ex.D 46 : Sanction Plan dtd: 24.11.2003.
[K.M. Rajashekar],
XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.105 O.S.No.26279/2007
Judgment pronounced in open court vide separate judgment :-
ORDER The suit of the Plaintiff is hereby dismissed with costs.
Draw decree accordingly.
[K.M. Rajashekar], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.106 O.S.No.26279/2007