Bangalore District Court
Sri A.C. Rajashekhar vs Smt. A.C. Devakishekhar on 13 December, 2017
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in
Suits (R.P.91)
IN THE COURT OF THE XLIII ADDL. CITY CIVIL
& SESSIONS JUDGE, BENGALURU. (CCH 44)
Dated: This the 13th day of December, 2017
PRESENT
Sri. V.H. WADAR, B.A., LL.B.(Spl.),
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
O.S. No.5324/2009
PLAINTIFF : Sri A.C. Rajashekhar,
S/o Late Sri A.S. Chandrashekhar
Aged about 45 years,
R/at Door No.3464, 1st Cross
8th Main, Vijayanagara,
R.P.C. Layout,
(Near Bunts Kalyana Mantapa)
Bengaluru-560 040.
(By Sri KMR, Advocate)
VS.
DEFENDANTS : 1. Smt. A.C. Devakishekhar,
W/o. Late Sri A.S. Chandrashekhar
Aged about 65 years,
R/at Door No.8, 3rd Main
1st Cross, III Phase, J.P. Nagar
Bengaluru-560 076.
2 O.S.No.5324/2009
2. Sri A.C. Jayashekhar
Aged about 40 years,
S/o Late A.S. Chandrashekjar,
R/at Door No.8, 3rd Main
1st Cross, III Phase, J.P. Nagar
Bengaluru-560 076.
(D1 by Sri MSN,
D2 by Sri SDM, Advocates)
Date of Institution of the suit: 13/08/2009
Nature of the Suit (Suit for
pronote, suit for declaration and Suit for Partition
possession, Suit for injunction,
etc,) :
Date of the commencement of 16/09/2011
recording of the Evidence:
Date on which the Judgment was 13/12/2017
pronounced:
Total Duration : Year/s Month/s Day/s
08 04 00
(V.H. WADAR)
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGMENT
Plaintiff has filed suit for partition and separate possession of his ½ share in the suit schedule property and for mesne profits.
3 O.S.No.5324/2009
2. The brief facts of the plaintiff's case are as under:-
Plaintiff contends that he is the son of A.S. Chandrashekar and Smt. Shantha. The defendant No.1 is the second wife of Sri A.S. Chandrashekhar. Deceased A.S. Chandrashekhar had purchased a residential site bearing No.8, present BBMP No.8, PID No.57-140-8, 3rd Main Road, BBMP Ward No.56, Uttarahalli, Bangalore South Taluk morefully described in the schedule. Plaintiff further contends that plaint 'A' schedule property is the self acquired property of his father deceased A.S. Chandrashekhar. A.S. Chandrashekhar died on 20/10/2008. After the completion of the customary rites and rituals, the plaintiff has approached the defendant and requested to divide the said property and hand over ½ share by metes and bounds to him, as he is lawfully entitled to the same. But unfortunately the defendant did not oblige to comply with the demand of the plaintiff. Deceased A.S. Chandrashekhar has also two cars in his name and the plaintiff also requested and demanded to transfer one 4 O.S.No.5324/2009 of the cars into his name as his share. But the defendant has not acceded to the said request. On 04/02/2009 again the plaintiff contacted the defendant along with the well wishers of both the parties to settle the matter amicably, but the defendant has completely neglected and threatened the plaintiff. Hence the plaintiff got issued legal notice to the defendant on 11/02/2009 and the legal notice has been duly served on the defendant. Instead of complying with the terms of the legal notice, the defendant has got issued a reply on 17/02/2009 with false, untenable and frivolous allegations. The plaintiff has got issued the rejoinder to the defendant on 06/03/2009 requesting her to send the xerox copy of the gift deed and rectification deed. The defendant has send a reply to the rejoinder on 24/03/2009 by stating that question of furnishing the xerox copy of the gift deed or rectification deed does not arise.
The plaintiff contends that till toady the suit schedule property is under the joint possession and enjoyment of the plaintiff and the defendant and under law he is entitled for ½ 5 O.S.No.5324/2009 share in the suit schedule property. The plaintiff further contends that he has one sister by name Savitha. She got married to Muslim and has converted to Muslim religion therefore she has no share in the schedule property. Except the plaintiff and the defendant there are no other legal heirs. The natural mother of the plaintiff is also dead. Hence the plaintiff is entitled to ½ share in the suit property. Hence this suit.
3. The defendant appeared through Advocate and filed her written statement contending that the suit is not maintainable and the same is liable to be dismissed. The schedule 'A' property is absolute property of the defendant who having acquired the same pursuant to the gift deed executed by A.S. Chandrashekhar during his lifetime and followed by an execution of rectification deed in the year 1999. Since then the defendant is in possession of the plaint schedule property and the khatha has been transferred to her name and she is paying taxes. The defendant contends that there is no joint family or the plaint schedule property to be in 6 O.S.No.5324/2009 joint possession as claimed by the plaintiff in as much as the suit schedule property is exclusively possessed by the defendant as absolute owner.
The defendant further contends that father of the plaintiff A.S. Chandrashekhar married Smt. Shantha. Out of the said marriage they had two children Rajashekhar the plaintiff and a daughter by name Savitha. By agreement dated 26/03/1973 between the father and mother of the plaintiff, they agreed to live separately with effect from 28/06/1972. At that time the plaintiff was minor and continued to stay with his father and the minor daughter Savitha was residing with her mother, later on Savitha also joined her father.
The defendant further contends that consequent to the agreement dated 26/03/1973 A.S. Chandrashekhar was residing separately and thereafter he married defendant during June 1973 and out of the said marriage they had one male issue who was born on 13/04/1975 and was named as 7 O.S.No.5324/2009 A.C. Jaishekhar. A.S. Chandrashekhar was employed as a Sales Supervisor in M/s. Golden Tobacco Company Limited (Bombay). The husband of the defendant out of his earnings and savings had acquired the immovable property bearing site No.8, Sarakki III Phase, presently bearing BBMP khatha No.8 measuring 60 x 40 feet pursuant to the allotment made by BDA in the year 1977. The defendant's husband thereafter out of his earnings and savings had put up construction of ground floor in the year 1977 and subsequent to his retirement he had constructed first floor in the year 1983-84 and thereafter had constructed second floor.
The defendant further contends that the plaintiff left Bengaluru and secured employment in Mysore, in the year 1992 got married and has been living separately and never used to visit his father or defendant except visiting them whenever plaintiff needed finance. The plaintiff without any regard to held and assistance rendered by his father and the defendant, as a step mother, started to trouble mentally and started interfering with the business of the defendant who 8 O.S.No.5324/2009 infact has been running ladies hostel in the premises where the defendant and her deceased husband were residing along with defendant's married son and daughter-in-law. The defendant has been running ladies hostel in the said premises since 1986.
The defendant further contends that her husband A.S. Chandrashekhar during September 1999 had executed a registered gift deed gifting the immovable property described thereto in favour of defendant followed by a registered rectification deed to rectify the schedule. Since then the defendant has been enjoying the said immovable property as an absolute owner without any interference from anybody.
The defendant contends that her husband suffered from 3 heart attacks prior to 1982 and as a result he had taken voluntary retirement from the services. During 2005 defendant's husband A.S. Chandrashekhar diagnosed with kidney failure and was advised to undergo dialysis thrice a week. The defendant has spent approximately a sum of Rs.20 9 O.S.No.5324/2009 lakhs for treatment of her husband. The husband of the defendant died on 20/10/2008 and the plaintiff only attended the cremation at Wilson garden and thereafter his last rites were performed involving the plaintiff as well as defendant's son. The defendant is in peaceful possession and enjoyment of the suit schedule property and the plaintiff is making hectic efforts to interfere with the peaceful possession and enjoyment of the written statement schedule property. The defendant has denied all other averments made in the plaint. The by way of counter claim the defendant prays to dismiss the suit and prays for an order of permanent injunction restraining the plaintiff, his men and any person claiming under him from disturbing/interfering with the defendant's peaceful possession and enjoyment of the written statement schedule property.
4. Based upon these rival pleadings of the parties, following issues have been framed:-
1. Whether defendant proves that her husband A.S. Chandrashekar has given the suit property 10 O.S.No.5324/2009 to her by executing gift deed and rectification deed in the year 1999?
2. Whether plaintiff is entitled for partition and separate possession of his share in suit property? If yes, at what share?
3. Whether plaintiff is entitled for mesne profits?
4. Whether defendant proves that she is in peaceful possession and enjoyment of counter claim property?
5. Whether defendant proves that the plaintiff is interfering illegally, in her peaceful possession and enjoyment of suit property?
6. Whether the suit is bad for non-joinder of necessary parties?
7. Whether plaintiff is entitled for the reliefs sought for?
8. Whether defendant is entitled for the reliefs claimed in counter claim?
9. What order or decree?
5. Plaintiff himself examined as P.W.1, Ex.P.1 to P.4 got marked and closed plaintiff's side. Defendant No.1 is examined as D.W.1, Ex.D.1 to D.15 got marked and closed defendants' side.
6. Heard the arguments on both sides.
11 O.S.No.5324/2009
7. My findings on the above Issues are:-
Issue No.1: In the affirmative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: In the affirmative Issue No.7: In the negative Issue No.8: In the affirmative Issue No.9: As per final order for the following :-
REASONS
8. Issue Nos.1 to 5, 7 and 8 discussed jointly:-
These issues are interconnected with each other. To avoid repetition of the facts and evidence, I have discussed the above issues jointly.
9. Plaintiff contends that defendant No.1 is second wife of father of plaintiff and defendant No.2 deceased A.S. Chandrashekhar. Though this fact is not in pleadings, 12 O.S.No.5324/2009 but during the course of cross-examination plaintiff/P.W.1 admits that father of the plaintiff deceased A.S. Chandrashekhar married defendant No.1 A.C. Devakishekhar and also he admits that name of defendant No.1 was only Devaki and after the marriage with deceased A.S. Chandrashekhar, her name was known as Devakishekhar. Hence defendant No.1 is second wife of deceased A.S. Chandrashekhar.
10. The plaintiff has taken contention that deceased A.S. Chandrashekhar had acquired suit schedule property measuring 60 x 40 feet. The said property is self acquired property of A.S. Chandrashekhar and A.S. Chandrashekhar died intestate on 20/10/2008. This fact is not in dispute. The plaintiff/P.W.1 has categorically admitted during the course of cross-examination that the suit property is self acquired property of the father of the plaintiff deceased A.S. Chandrashekhar and also admitted in his pleadings. 13 O.S.No.5324/2009
11. The plaintiff contends that he is having ½ share in the suit schedule property and he has requested the defendant to effect partition. But defendant No.1 did not yield to the request of the plaintiff. Hence he got issued legal notice on 11/02/2009. But the defendant had issued reply notice which is false, untenable and frivolous. Hence plaintiff had issued rejoinder of the notice to the defendant on 06/03/2009 calling upon the defendant to produce the xerox copy of the gift deed. But the defendant has denied to produce the said document. Hence he filed the suit for partition and separate possession as the suit schedule property is self acquired property of his father deceased A.S. Chandrashekhar. Further he contends that he has a sister by name Savitha, who had married to Muslim community person and she has been converted to Muslim religion. Hence she is not entitled to share.
12. The defendants have denied the said allegations and have taken specific contention that the suit schedule property is self acquired property of deceased A.S. 14 O.S.No.5324/2009 Chandrashekhar. He had executed gift deed Ex.D.7 in favour of defendant No.1 and rectification deed Ex.D.8 and she is in possession of the suit schedule property and she became absolute owner of the suit schedule property on the basis of the gift deed-Ex.D.7 and rectification deed-Ex.D.8.
13. The plaintiff during his course of cross- examination he identified the signature of the father of the plaintiff on sale deed Ex.D.1 dated 02/01/1990 and he also identified the signature of his father on possession certificate Ex.D.2 which is marked at Ex.D.2(a). The plaintiff has produced Ex.P.4 the death extract of his father deceased A.S. Chandrashekhar who died on 20/10/2008, which is not in dispute. Plaintiff has admitted the signature of his father deceased A.S. Chandrashekhar on gift deed Ex.D.7. Hence defendant No.1 has proved and established that gift deed executed by the father of the plaintiff deceased A.S. Chandrashekhar in favour of defendant No.1 and she is in possession of the suit schedule property. 15 O.S.No.5324/2009
14. The learned Advocate for defendant No.1 has placed reliance on the ruling reported in AIR 1996 Allahabad 57 (Shrimati Shayama Devi vs. Smt. Premvati, wife of Lala and others), in Head Note (B) it has been held as:
"(B) Transfer of Property Act (4 of 1882), Ss.122, 123 - Registered gift deed - Execution of, not denied by executor - Proviso to S.68, evidence Act, attracted - Formal proof not necessary - Further non-acceptance of document is not proved, was not proper since it was proved by attesting witness."
The execution of gift deed is proved by defendant No.1. The principle laid down by Their Lordship in the above case is amply applicable to the present case in hand. Formal proof of Ex.D.7 and D.8 is not necessary as per Section 68 of Evidence Act.
The learned counsel also placed reliance on the ruling reported in AIR 2006 Punjab and Haryana 160 (Smt. 16 O.S.No.5324/2009 Giano vs. Puran and others) in Head Note (B) it has been held:
"(B) Transfer of Property Act (4 of 1882) S.123 - Gift deed - Donor not denying execution of gift deed - No attesting witness is required to be produced in such case for proof of execution -
Finding by lower appellate Court that gift deed was not admitted by defendant, therefore, attesting witness was required to be examined - Erroneous - Denial of gift deed should be by donor only and no one else as provided by proviso to S. 68 of Evidence Act."
The learned counsel also placed reliance on the ruling reported in ILR 2015 KAR 3841 (Smt. Pilla Akkayyamma and others vs. Channappa, since dead by L.Rs. and another) in Head Note A it has been held as under:
"A) TRANSFER OF PROPERTY ACT,1882 -
SECTION 123 - Gift of immovable property -
Registered document - Necessity of examination of the attestors - HELD, Section 123 of TP Act states that for making a gift of immovable property, the transfer must be effected by a 17 O.S.No.5324/2009 registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. The proviso to Section 68 of the Indian Evidence Act, 1872 dispenses with the necessity of calling an attesting witness in proof of any document except a Will, which has been registered in accordance with the provisions of the Registration Act, 1908 when there is no specific denial by the party against whom the document is relied upon. Therefore, a registered deed of gift can be received in evidence without examination of the attestors, if the person, who has executed the deed of gift has not specifically denied its execution."
15. The principles laid down by Their Lordships in the above citations are amply applicable to the present case in hand. The gift deed is not required to prove by examining the attesting witness and plaintiff/P.W.1 himself identified the signature of A.S. Chandrashekhar found on Ex.P.7. Hence defendant No.1 has proved and established that she is owner in possession of the suit schedule property. 18 O.S.No.5324/2009
16. Plaintiff has failed to prove that he is entitled to partition and separate possession of his ½ share in the suit schedule property and he is not entitled to mesne profits, as he failed to prove that he is entitled to partition and also failed to prove that he is entitled to the relief as prayed for.
17. The defendant No.1 has successfully proved and established that plaintiff is interfering in the enjoyment of suit schedule property. Hence defendant No.1 has proved the interference by the plaintiff.
18. The defendant No.1 has taken contention that defendant No.1 is entitled to counter claim as prayed for, as the plaintiff has not filed rejoinder to the counter claim claimed by the defendant No.1 and also defendant No.1 has proved and established that she is owner of the suit schedule property on the basis of the gift deed. Hence the defendant No.1 is entitled to counter claim and for issue of permanent injunction against the plaintiff. Hence I answer issue Nos.1, 19 O.S.No.5324/2009 4, 5 and 8 in the 'affirmative' and issue Nos.2, 3 and 7 in the 'negative'.
19. Issue No.6:- The defendant No.1 contends that suit of the plaintiff is bad for non-joinder of necessary parties. Plaintiff himself pleaded in his plaint that he is having sister by name Savitha and she is married a Mohammedan community person and she has converted to Mohammedan religion. Hence she is not entitled for share. For that the plaintiff has not produced materials on record. Mere converting into Islamic religion is not a ground to reject the legitimate share of the sister of the plaintiff. Hence plaintiff's sister Savitha is proper and necessary party in this suit. Hence the suit of the plaintiff is bad for non-joinder of necessary party and I answer issue No.6 in the 'affirmative'.
20. Issue No. 9:- For the reasons discussed above and in view of findings given on the above issues, I proceed to pass the following:-
20 O.S.No.5324/2009
ORDER The suit of the plaintiff is hereby dismissed. The defendant No.1 is entitled to the counter claim.
Plaintiff, his men, agents, legal heirs and any persons claiming under him are restrained from interfering in peaceful possession and enjoyment of written statement schedule property by the defendant No.1.
No order as to costs.
(Dictated to the Stenographer, computerized by her, corrected and then pronounced by me in Open Court on this the 13th day of December, 2017.) (V.H. WADAR) XLIII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
SCHEDULE -A All that part and parcel of the house property constructed on the site bearing No.8, present BBMP No.8 PID No.57-140-8, 3rd Main Road, BBMP ward No.57, Uttarahalli Hobli, Sarakki, Bangalore South Taluk, Bangalore, measuring east to west 60 feet and north to south 40 feet bounded on: 21 O.S.No.5324/2009
East by : BDA Property West by : Road North by : Site No.7 South by : Site No.9 WRITTEN STATEMENT SCHEDULE PROPERTY All that part and parcel of the house property constructed on the site bearing No.8, present BBMP No.8 PID No.57-150-8, 3rd Main Road, BBMP ward No.57, Uttarahalli Hobli, Sarakki, Bangalore South Taluk, Bangalore, measuring east to west 60 feet and north to south 40 feet bounded on: East by : Site No.4 West by : Road North by : Site No.7 South by : Site No.9 ANNEXURE List of witness examined for the plaintiff/s:-
P.W.1 : A.C. Rajashekhar List of witness examined for the defendant/s:-
D.W.1 : A.C. Devakishekhar List of documents marked for the plaintiff/s:-
Ex.P.1 : Copy of legal notice
Ex.P.1(a) : Postal acknowledgement
Ex.P.1(b) : UCP receipt
22 O.S.No.5324/2009
Ex.P.2 : Reply notice
Ex.P.3 : Copy of reply notice
Ex.P.4 : Reply notice
Ex.P.4(a) : Envelope
List of documents marked for the defendant/s:-
Ex.D.1 : Sale deed Ex.D.1(a) : Signature of Chandrashekhar Ex.D.2 : Possession Certificate Ex.D.2(a) : Signature of Chandrashekhar Ex.D.3 : Plan Ex.D.4 : Death certificate Ex.D.5 : Agreement Ex.D.6 : Copy of complaint Ex.D.6(a) : Acknowledgement given by police Ex.D.7 : Gift deed Ex.D.7(a) : Signatures of Chandrashekhar to D.7(f) Ex.D.8 : Rectification deed Ex.D.8(a) : Signatures of Chandrashekhar to D.8(e) Ex.D.9 : Khatha Ex.D.10 : Tax paid receipt Ex.D.11 : Khatha certificate Ex.D.12 : Khatha extract Ex.D.13 : Discharge summary Ex.D.14 : Medical expenses file Ex.D.15 : Medical bills file (V.H. WADAR) XLIII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.