Bangalore District Court
Sri.M.Raj Kumar @ G.Raja vs Smt.G.Saraswathamma on 19 September, 2016
THE COURT OF XXXIX ADDITIONAL CITY CIVIL
JUDGE BANGALORE CITY
Dated on this the 19th day of September 2016
-: Present :-
Smt. Hemavathi, BBM, LL.B,
XXXIX Additional City Civil & Judge,
Bangalore City.
ORIGINAL SUIT NO.4449/2013
Plaintiff/s : Sri.M.Raj Kumar @ G.Raja
S/o.Late M.Gopal
Aged about 39 years
R/a.No.48, 7th B Cross, 16th 'B'
Main, 4th 'B' Cross, Koramangala,
Bangalore-560 034.
(By Sri.K.Chandrashekar Achar,
Advocate)
V/s.
Defendant/s : 1. Smt.G.Saraswathamma
W/o.Late M.Gopal
Aged about 65 years
R/a.No.304, 7th 'B' Main,
4th Block, Koramangala, Bangalore-
560 034.
(Ex-parte)
2. Smt.G.Jagadamba
W/o.Sri.R.Dhanpal
Aged about 42 years
R/a.No.435, Next to Nirmala Girls
High School,
St.Michael Church Road,
Shanthinagar,
Bangalore-560 027.
(Ex-parte)
3. Sri.G.Vijaya
W/o.N.Sridhar
Aged about 35 years
R/a.No.52/4, 1st Cross, 20th Main,
Marenahalli Extension,
Vijayanagar, Bangalore-560 040.
(by Sri.G.V.V., Advocate)
4. Sri G.Suresh
S/o.Late M.Gopal,
Aged about 33 years
R/a.No.15, 9th Cross, Reliable
Residency, Haralur,
Bangalore-560 102.
(By Sri.L.K., Advocate)
5. Sri.G.Ramesh
S/o.Late M.Gopal
Aged about 31 years
R/a.No.304, 7th 'B' Main, 4th Block,
Koramangala, Bangalore-560 034.
(Ex-parte)
Date of Institution of the : 20.6.2013
suit
Nature of suit : Suit for partition
Date of commencement of : 21.08.2014
evidence
Date on which the : 19.09.2016
judgment is pronounced
Duration taken for Years Months Days
:
disposal 03 02 29
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JUDGMENT
This is a suit filed by the plaintiff against the defendant for the relief of partition of the suit schedule properties by metes and bounds and separate possession of 1/6th share in the suit schedule property and to declare that the alleged gift deed dated.17.6.2011 registered as document No.2249/2011-12 before the Sub-Registrar, Bommanahalli on 17.6.2011 executed by defendant No.1 infavour of defendant No.5 is not binding on the plaintiff and for the relief of permanent injunction to restrain the defendants or any other person, agent from alienating, transferring and creating charge over the suit schedule property and for such other reliefs with costs.
2. The brief facts of the plaintiff's case are that this plaintiff and defendant No.2 to 5 are the children of Late M.Gopal and defendant No.1 and their father died on 16.4.1997 intestate leaving behind this plaintiff and defendants as legal representatives and his father was a businessman and had started business under the name and style as "New Karnataka Rolling Shutters and Engineering Work" in the year 1969-70 by investing huge income and he gave education to all his children and performed marriage of 2nd defendant in the year 1995 and also performed marriage of 3rd defendant in the year 1998 with all gift and other customary benefits by way of gold, cash, household utensils and now she is residing with their family separately and this plaintiff after education started new business in the same rolling shutter in the name and style as 'Raja Rolling Shutter' in the premises No.15, Chikka Lakshmi Layout, D.R.C. Post, Hosur main road during the life time of his father. He assisted his father in the afore said New Karnataka Rolling Shutters business and managed the entire family affairs as the eldest male child and he himself organized and performed the marriage functions of his sisters by spending sale proceeds of the property sold by all the joint family members and thus plaintiff had taken responsibility to maintain the status and respect of the family after the death of his father and assisted the family to lead decent life and he had supported his brothers in education and other activities as his mother suffered leg fracture, he took care of his mother and his mother was never involved in any of the business activities of the family. But his father had used the name of defendant No.1 and 5 to purchase the properties to avoid tax and other incidental difficulties. His father purchased the suit schedule Item No.1 from Sri Narasappa for valuable consideration and constructed building consisting of ground, first floor and a portion of second floor and let out the same for maintenance of the family and the ground floor tenant had been paying rent to defendant No.1, 4 and 5 and they have been receiving rent of Rs.60,000/- and the tenant of the 1st floor and above portion was let out by defendant No.1 and 5 for Rs.80,000/-. After death of his father, khatha was changed in the name of the 1st defendant and in the year 1993 his father has executed the agreement on 5.3.1993 divided the same into three share and defendant No.1 entitled for 1/3rd share, his father retained 1/3rd share and remaining 1/3rd share was allotted to this plaintiff. This agreement was made with an understanding that whenever the joint family or property disposed off, this plaintiff is entitled for 1/3rd share exclusively. Inview of that agreement, the plaintiff had not misused the said agreement with bonafide faith. His father had purchased the suit schedule item No.2 from one Gopal Reddy on 4.6.1990 in the name of the 1st defendant by paying the valuable consideration as the 1st defendant has no independent income and she was house wife and got constructed residential building in the year 1992-93 with ground and first floor, and a room in second floor by investing family income accrued in the business and he died in the year 1997. Thereafter the defendant No.1 and this plaintiff have taken the responsibility of the business to clear the liability of the employees and settlement of the due and mother of the plaintiff sold certain properties and spent the same for marriage of defendant No.3 and up to 2005-06 the plaintiff and defendant No.1, 4 and 5 stayed together and after marriage she started to reside in a rented house but he provided all the required household articles to defendant No.1, 4 and 5, and he had purchased house hold articles for him and defendant No.1 had retained gold chain worth 119.150 grams belonging to his wife, ear rings of 350 grams, other silver articles and it is now with the custody of defendant No.1, 4 and 5 and it belongs to the joint family and after the death of his father he transferred the license of M/s.Karnataka Rolling Shutters and Engineering Works in the name of defendant No.4 as another factory was in his name and he had closed the said factory and brought all the machineries and equipments to the family business and his father was running the said factory in the rented premises after the said factory transferred to the name of the defendant No.4 rent was paid in the name of defendant No.4 and account of the factory and business was maintained by both the plaintiff and defendant No.4 jointly and I was noticed that his father had taken advances from several persons and borrowed hand loans for his bad evils and habits, and it was cleared by the plaintiff with the help of defendant No.4, and defendant No.11, and defendant No.4 had undertaken to pay 50% of the amount invested by the plaintiff, and has also agreed to share 50% of the pace whenever the factory requires to be divided. His father had also purchased Item No.3 in the name of defendant No.5 along with the another site No.15 which was purchased in the name of defendant No.1 and these two sites were purchased out of the personal savings and the income earned from the factory which is now in the name of the defendant No.4. The father of the plaintiff had executed General Power of Attorney infavour of one M.Nataraj with an intention to alienate the same and received sale consideration and after death of plaintiff father, General Power of Attorney holder repaid the advance amount. Defendant No.5 is the only name vendor and property belongs to joint family. In the month of March 2005 the plaintiff and other legal heirs arranged meeting for settlement of the family property and accordingly the defendant No.1 executed the will in respect of Item No.4 in the name of defendant No.4 and 5 and in respect of item No.1 in the name of this plaintiff. But on 19.11.2010 without his knowledge his mother revoked the will and on 17.6.2011 created the gift deed infavour of defendant No.5 in respect of item No.2. There is no property suit or partition within the family and 1st defendant No.1 had no absolute right, title or interest to execute the gift deed infavour of defendant No.5 as the building was constructed by his father by utilizing family business income jointly contributed by the plaintiff and other, so the aid gift deed is a sham document and created with an intention to deprive his right, title or interest over the said property and thus plaintiff is in possession of item No.2 and defendant No.1 is not residing there and on 21.12.2011 defendant No.1 also executed the will in respect of movable property including gold, silver ornaments and household utensils and valuable in the name of defendant No.2 and 3 and defendant No.4 and 5 misused the innocence and ignorance of defendant No.1 and created bogus document. The entire investment made in the factory and its customer and good will is the result of dedicated involvement of the plaintiff and it is liable to be partitioned. The plaintiff has requested the defendant for mutual settlement and amicable partition, but they did not agree. Hence, filed the suit.
3. The Defendant No.4 filed written statement contending that that the prayer of the plaintiff is valid, just and necessary in the present suit. He admitted the relationship of the parties and also the averments made in the plaint. He is supporting the case of the plaintiff and prayed to decree the suit of the plaintiff and also sought for counter claim for judgment and decree in his favour to partition the suit schedule property and allot his 1/6th share by metes and bounds and to put him in separate possession by holding gift deed dated.17.6.2011 executed by defendant No.1 infavour of defendant No.5 as not binding on his share and such other reliefs.
4. The defendant Nos.1, 2, and 5 did not appear before the Court inspite of service of summons, hence placed ex-parte.
5. Though Defendant No.3 appeared before the court through advocate but has not filed written statement.
6. On the basis of the pleadings of the parties, following issues are framed by the predecessor of this Court :
ISSUES (1) Whether the plaintiff proves that, the suit schedule property is the joint family property of plaintiff and defendants and they are in joint possession of it?
(2) Whether the plaintiff proves that, he has got 1/6th share in the suit schedule property?
(3) Whether the plaintiff is entitled for the relief of partition and separate possession in the suit schedule property as prayed in the plaint (4) Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?
(5) Whether the defendant No.4 is entitled for 1/6the share in the suit schedule property?
(6) What order or decree ?
7. Plaintiff examined him as P.W.1 and got marked 59 documents as per Exs.P.1 to P.59.
8. Heard advocate for plaintiff.
9. My findings on the above issues are as follows:
Issue No.1 to 5 : Partly in the affirmative Issue No.6 : As per final order, for the following:
REASONS
10. Issue No.1:- Herein the fact that one M.Gopal and defendant No.1 are the parents of plaintiff and defendant No.2 to 5 and deceased M.Gopal who is father of the plaintiff has purchased item No.1 under registered the sale deed in his name and father of the plaintiff also purchased item No.2 and 4 in the name of defendant No.1 and item No.3 in the name of defendant No.5 are admitted fact. The case of the plaintiff that 1st defendant had no income of her own and defendant No.5 was minor at the time of purchase of this property, hence his father paid the sale consideration amount out of his own income and he put up construction on the item No.2 and even during the life time M.Gopal had executed General Power of Attorney to sell item No.3 infavour of one M.Nataraj with an intention to alienate the same and received certain amount, after death of, his father the plaintiff repaid the amount to said Nataraj and took possession from said Nataraj.M. and defendant No.1 and 5 are only the name vendors, this property belongs to joint family and liable for partition and till marriage of the plaintiff in the year 2006 he was residing in item No.1 along with defendant No.1, 4 and 5 and after the marriage he started to reside in a rented house, but he has been providing all the amenities to these defendants and he spent money for the education of defendant No.4 and 5 and he also spent money for the marriage of defendant No.3 and the marriage of defendant No.2 was performed out of the sale consideration amount received from the sale of other family properties and during the life time in the year 1993 his father executed agreement dated 15.3.1993 dividing the item No.1 into three shares with an intention to lend one share to the defendant No.1, one share to the plaintiff and one share to the father of the plaintiff with an understanding that whenever the property was divided within the family, plaintiff is entitled for 1/3rd share and even his mother had executed a will in respect of item No.4 infavour of defendant No.4 and 5 and in respect of item No.1 infavour of this plaintiff and later without the knowledge of this plaintiff she revoked the will and executed gift deed dated.17.6.2011 infavour of defendant No.5 in respect of the respect of item No.2 and she also executed will dated.27.12.2011 infavour of her daughters in respect of movable properties including gold, silver ornaments, household utensils.
11. Ofcourse the defendant No.1, 2 and 5 have not appeared before the Court inspite of service of summons and defendant No.3 not filed written statement denying the case of the plaintiff and defendant No.4 filed written statement supporting the case of the plaintiff, but it is not a ground to accept the case of the plaintiff. It is the plaintiff who has to prove that this property are enjoyed as joint family properties and he is having share over the properties.
12. As admitted by him and as per Ex.P.1 the certified copy of the sale deed in respect of Item No.1 it is in the name of father of the plaintiff, Ex.P.2 which is the certified copy of the sale deed in respect of item No.2 it is in the name of 1st defendant, Ex.P.3 which is the certified copy of the sale deed in respect of item No.4 it is in the name of defendant No.2, Ex.P.4 which is the certified copy of the sale deed in respect of item no.3 which stands in the name of defendant No.5 who is a minor represented by his guardian father M.Gopal, In these documents no where it is recited that the sale consideration amount was paid by M.Gopala and it was purchased on behalf of the joint family.
13. The plaintiff also produced Ex.P.57 which is the certified copy of the GPA said to have been executed by M.Gopal infavour of Nataraj in respect of item No.5 there is recital at page No.1 that it is a self acquired property of defendant No.5 and khatha stands in his name and to look after the said property, the said Power of Attorney was given. This document does not reveal that under this document the father of the plaintiff had received amount from the holder of power of attorney.
14. The plaintiff also produced the Ex.P.5 which is related to the suit schedule item No.1 property and it is executed infavour of one Lakshmamma by Ganesh Pillai who is vendor of plaintiff's father. So, this document no way helpful to the plaintiff to prove his case.
15. Ex.P.7 to 14 are the Encumbrances, Ex.P.15 to Ex.P.17 are the Gas Bills, Ex.P.18 is the statement of loan account issued by ICICI Bank, Ex.P.19 is the rental agreement between one Jagadish and Raja. Ex.P.20 to Ex.P.37 are the photographs, Ex.P.39 are the registration certificates of establishment pertaining to 'New Karnataka Rolling Shutter', Ex.P.40 is the Show Cause Notice issued by Senior Labour Inspector, Ex.P.40 is the telephone bill, Ex.P.42 is the khatha in the name of defendant No.5, Ex.P.43 is the khatha in the name of defendant No.1, Ex.P.44 is the khatha in the name of defendant No.1, Ex.P.45 is the tax paid receipt, Ex.P.46 to Ex.P.48 are the complaints filed by the plaintiff, Ex.P.49to Ex.P.54 are the photographs. These documents are no way helpful to the plaintiff to show that item No.2 to 4 are the joint family properties and the sale deeds which are in the name of defendant No.1 and 4 respectively, they are the only name vendors and their father had purchased the property by investing his own funds on behalf of the joint family not for enjoyment of the respective defendant No.1 and 5 alone.
16. It is well settled that when any party to the suit claims the property which stands in the name of other party to the suit is the joint family property, it is to be proved that there is some other joint family properties and these individual properties were blended with those joint family property and enjoyed as joint family properties. But there is no material or evidence on the part of the plaintiff before the Court to show that there is other joint family properties. Item No.1 to 4 are all house sites. Merely because that plaintiff is residing with the defendants either during the life time of his father or after his death it cannot be treated as a property owned by the joint family. Even though he stated that his father was running business 'New Karnataka Rolling Shutters and Engineering Works' which according to him it was running in rented premises when such being the fact he cannot claim that item No.2 to 4 were treated as joint family property. Further, there is no proof on the part of the plaintiff to show that he had spent money after death of his father for the development of these properties. Therefore, I hold that the plaintiff has failed to prove that item No.2 to 4 are the joint family properties but when the item No.1 was purchased by is father, and he died intestate it devolves upon wife and children of deceased M.Gopal. Therefore, it becomes the joint family properties.
17. Plaintiff has shown item No.5 as part and parcel of rental premises No.55, K.S.Garden, 4th Cross, Lalbagh Road, Bangalore with all the fixtures and fitting, raw materials, and sought for its division, but there is no document to show that it is still running in the premises mentioned in item No.5. But according to him, he got changed the licence in the name of defendant No.4 and he merged the furniture's and machineries of his factory which was run by him in the name and style 'Raja Rolling Shutters'. There is no document before the Court except producing some photographs. Therefore, it cannot be consider that it is available for partition.
18. Therefore, with respect to item No.6 which are the movables, the plaintiff has not produced any documents. Even though he stated that his mother had retained gold chain weighing 119.150 gram belonged to his wife and other gold ornaments weighing 350 grams and other silver articles he has not produced any documents to show that these movable were available for partition. Further he has stated that his mother has executed will on 21.12.2011 bequeathing these movable properties, he has not produced the said will before the Court. Therefore, it is hard to believe that these movable properties are in existence and available for partition.
19. Ofcourse the plaintiff also produced Ex.P.6 which is the revocation of the will dated.23.3.2005 but this does not help the plaintiff to show that item No.2 to 5 are the joint family properties and available for partition. Inview of these discussions, I answer Point No.1 as partly in the affirmative.
20. ISSUE NO.2 and 3:- When the plaintiff has failed to prove that item No.2 to 6 are joint family properties and available for partition, the plaintiff is not entitled for share on these properties, but when he has proved that item No.1 purchased by his father after he died intestate, after death of his father it is to be divided into between the plaintiff and the defendants as the legal representatives of deceased M.Gopal hence, plaintiff is having 1/6th share in item No.1 and he is entitled for separate possession of the 1/6th share in item No.1.
21. The plaintiff has sought for declaration to declare gift deed 17.6.2011 executed by defendant No.1 in favour of defendant No.5 is sham and void document and not binding on him. Accordingly to the plaintiff this gift deed is in respect of item No.2 of the suit property which stands in the name of defendant No.1 when the plaintiff has failed to prove that he is having right over the said property is not entitled to claim such a relief.
22. Inview of these discussions, I answer issue No.2 and 3 as partly in the affirmative.
23. ISSUE NO.4:- Defendant No.4 has sought for partition of the suit schedule properties. Inview of my answer on issue No.1 to 3, I hold that defendant No.4 is entitled for 1/6th share out of item No.1. Hence, I answer issue No.4 as partly in the affirmative.
24. ISSUE NO.5:- The plaintiff has sought for relief of permanent injunction to restrain the defendants, or any other person, agent form alienating, transferring and creating charge or encumbrance over the suit schedule property. When the plaintiff has proved that he is having 1/6th share on item No.1, if before dividing the item No.1 the defendants have alienated the property, the plaintiff will be put to great hardship. Hence, he is entitled for the relief of permanent injunction. Accordingly, I answer this issue No.5 as partly in the affirmative.
25. ISSUE NO.6:- In view of the above discussions, I proceed to pass the following:
ORDER Suit filed by the plaintiff against the defendant and the counter claim of the defendant No.4 are hereby decreed in part.
Considering the relationship between the parties, there is no order as to costs.
It is hereby declared that the plaintiff is entitled for 1/6th share in item No.1 of the suit property by metes and bounds.
The defendants or any other person, agents are restrained from order of permanent injunction or alienating the 1st item of the suit schedule property till allotting 1/6th share of plaintiff.
The claim of the plaintiff for declaration to declare that the gift deed 17.6.2011 infavour of defendant No.4 by defendant No.1 is hereby rejected.
It is hereby declared that the defendant No.4 is entitled for 1/6th share in item No.1 of the suit property Draw decree accordingly. (Dictated to the Stenographer, transcript corrected, signed and then pronounced by me in the open court, this the 19th day of September, 2016.) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
ANNEXURE
1. List of witness examined for plaintiff:
P.W.1 : M.Raj Kumar @ G.Raja
2. List of documents exhibited for plaintiff:
Ex.P.1 : Certified copy of Sale Deed
Ex.P.2 : Certified copy of Sale deed dated.4.6.90
Ex.P.3 : Certified copy of sale deed dated.28.11.94
Ex.P.4 : Certified copy of sale deed dated.28.11.94
Ex.P.5 : Certified copy of sale deed dated.13.3.1980
Ex.P.6 : Certified copy of revocation of Will
dated.19.11.2010
Ex.P.7-14 : Encumbrance Certificates Ex.P.15-17: Gas purchase bills Ex.P.18 : Bank pass book Ex.P.19 : Rental Agreement Ex.P.20-37 : Photographs.
Ex.P.38 : CD Ex.P.39 : Registration Certificate Ex.P.40 : Show Cause Notice Ex.P.41 : Telephone bill Ex.P.42-44: Khatha Extract Ex.P.45 : Tax paid Receipt Ex.P.46-48: Copies of complaint Ex.P.49-54: Photographs Ex.P.55 : CD Ex.P.56 : Certified copy of the gift deed dated.17.6.11 Ex.P.57 : Certified copy of the General Power of Attorney dated.6.7.98 Ex.P.58-59: Certified copy of the encumbrance certificates
3. List of witness examined for defendant:
NIL
4. List of documents exhibited for defendants:
NIL (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
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