Bangalore District Court
Nagendra Kumar S vs Ramachandra on 18 March, 2024
KABC010098872021
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 18th day of March, 2024
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.N o.2776/2021
Plaintiff : Sri.S.Nagendra Kumar,
S/o Late. Subbashetty,
Aged about 53 years,
R/at: No.23(Old No.88),
22nd Main Road,
Nagendra Block,
BSK 1st Stage,
Bengaluru - 560050.
(By Sri.M.S.Manjanna - Advocate)
- V/s -
Defendants 1. Sri.Ramachandra,
S/o Late Subbashetty,
Aged about 62 years,
R/at:No.912, 2nd Cross, 4th Main,
M.C.Layout near Telephone Exchange,
Vijayanagar - 560040.
2 O.S.No.2776/2021
2. Smt.Rukmini,
W/o Sri.Ramachandra,
R/at:No.912, 2nd Cross, 4th Main,
M.C.Layout near Telephone Exchange,
Vijayanagar - 560040.
3. Smt.Padmavathi,
W/o Late Jagadeesh,
Aged about 50 years,
R/at:214, 2nd 'B' Main, 2nd 'E' Cross,
Muneshwara Temple Road,
Girinagar 1st Phase,
Bengaluru - 560085.
4. Smt.Vijayalakshmi,
W/o Puttaswamy A.T.,
R/at:No.181, 8th Main Road,
Anjaneya Temple Road,
Promodh Layout, Naayandahalli,
Bengaluru - 560039.
5. Sri.Ramesh,
S/o Late Subbashetty,
Aged about 51 years,
R/at:M/s R.R.Regency, 3rd Cross,
Javaregowda Nagar,
R.R.Nagar, Bengaluru - 560098.
6. Sri.Sathish,
S/o Late Subbashetty,
R/at:No.1301, 10th Cross, 4th Main,
4th Block, 1st Stage, HBR Layout,
Bengaluru - 560043.
7. Sri.Harish @ Krishna,
S/o Late Subbashetty,
Aged about 46 years,
3 O.S.No.2776/2021
M/s H.S.Dental Clinic,
R/at:No.139, 13th Main Road,
Kalappa Block, Srinagar,
Bengaluru - 560050.
(D.1 to 3, 5, 6 by Sri.B.V.S. - Advocate)
(D.4 by Sri.S.D.N.P. - Advocate)
(D.7 by Sri.H.C.B. - Advocates)
Date of institution of the suit: 20.04.2021
Nature of the suit: Partition
Date of commencement of
recording of evidence: 16.02.2023
Date on which Judgment was 18.03.2024
pronounced:
Duration: Yea Years Months Day
02 07 27
JUDGMENT
The plaintiffs have filed the present suit under Order VII Rule 1 read with Sec.26 of CPC, praying for the relief of partition and separate possession of his 1/ 7 th share in the suit schedule properties along with other reliefs.
2. The brief facts of the case of the plaintiff as averred in the suit plaint are as follows:-
The defendants No.1 and 4 to 7 are the brothers and sisters of plaintiff. The defendant No.2 is the wife of the 4 O.S.No.2776/2021 defendant No.1. The defendant No.4 is the sister-in-law of the plaintiff. The plaintiff and defendants are constituted under the Hindu undivided joint family. The suit schedule item No.1 property was originally belongs to one K.Bhagyamma. On 13.04.1994, the parents of the plaintiff and defendants No.1 and 4 to 7 namely Smt.Manchamma and Subbashetty were jointly purchased the said property from K.Bhagyamma through registered sale deed. The father and mother of the Plaintiff and Defendant No.1 and 4 to 7 had constructed a residential house consisting of ground and first floor in the suit schedule Item No.1 property. Subbashetty was working in revenue department as surveyor. Subbashetty had provided good education to the Plaintiff and Defendant No. 1 and 4 to 7. Subbashetty was performed the marriage of plaintiff and Defendant 1 and 4 to 7. Subbashetty had receiving a handsome Salary, so he had a good savings. Subbashetty was died intestate on 17.06.2003 leaving behind Manchamma, Plaintiff and Defendant No.1 and 4 to 7 as his legal heirs. After death of Subbashetty, Defendant No.1 was looking after the day to day affairs of the family being Kartha. The Defendant No.1 has used to collecting monthly rents from respective tenants of the suit schedule Item No.1 property. Smt.Manchamma was died intestate on 17.12.2018. After death of the Subbashetty and Smt.Manchamma, the 5 O.S.No.2776/2021 Defendant No.1 and 2 being the Manager of the family by misleading and misusing the joint family funds I.e., the monthly rents accrued from plaint Schedule property of Item No.1, have jointly purchased a residential property bearing No.912, present corporation No.912/7, measuring East to West 60 Feet, North tob South 40 Feet, situated at Magadi Road, Chord Road Extension, 2nd Cross, 5th Main, Bengaluru. The Defendant 3 to 7 have also purchased the residential houses in the Bangalore out of the joint family funds. There was no partition between the plaintiff and defendants neither in during life time of Subbashetty and Manchamma nor after their death. The plaintiff and defendants are still living in undivided joint family. During 1st week of October, the plaintiff has requested the defendants to effect the partition in the suit properties, the defendants went on postponing the effect of partition by one or other reasons. The defendant No.1 recently made a representation before local revenue officials to get transfer of the Khatha of suit schedule Item No.1 property in his name by suppressing true fact and without effecting the partition. The defendants No.1 to 7 have no independent rights and title over the schedule property Item No.1 and 2 properties, as said schedule properties are belong to the joint Hindu undivided family and said Item No.1 to 2 were purchased out of the joint nuclease funds. The plaintiff and 6 O.S.No.2776/2021 the defendants No.1 to 7 have been in joint possession and enjoyment of the suit schedule properties. The plaintiff is having 1/ 7th share in the suit schedule properties. The defendants are trying to create third party interest over the suit schedule properties to deprive the legitimate share of the plaintiff. Hence, the plaintiff has stated that the cause of action arose for him to file the suit and prayed to decree the suit.
3. After service of suit summons, the defendants No.1 to 3, 5 and 6 have appeared through one counsel. The defendants No.4 and 7 have appeared through separate counsels. The defendants No.1 to 3, 5 and 6 have filed their common written statement. The defendants No.4 and 7 have filed their independent written statements. The defendants No.1 to 3, 5 and 6 in their written statement have contended that the plaintiff had been given in adoption to Smt.Madamma W/o Gunda Setty by performing rituals and followed by execution of registered Adoption Deed dated 08.07.1985. Hence, the plaintiff has no right and title over the suit schedule Item No.1 property. Suit schedule Item No.2 property was purchased by defendants No.1 and 2 out of their own funds through registered sale deed on 07.05.2014. The plaintiff has no right to seek partition in the suit schedule Item No.1 and 2 7 O.S.No.2776/2021 properties. The plaintiff had been residing along with his adoptive mother from the date of his adoption and subsequently after his marriage in the house of his father- in-law at Ittamadu and he has never been in joint possession of the suit schedule properties at any point of time. The defendant No.7 had been given in adoption to one Smt.Madamma W/o Late Gunda Setty. The contention of the plaintiff that the defendants No.1 and 2 have purchased the suit schedule Item No.2 properties out of joint family is false. The defendant No.1 was Orthopedic Surgeon and working as Asst. Professor at Bengaluru Medical College and Research Center. The defendant No.2 the wife of defendant No.1 is also a doctor by profession. It is further stated in the written statement that out of their hard earned money and by obtaining loan from State Bank of Mysore, Lady Curzon Road Branch, Bengaluru D.1 and D.2 have purchased the Item No.2 of the plaint schedule property. Hence, Item No.2 of plaint schedule property being the self acquired property of the defendants No.1 and 2 does not constitute to be a joint family property as contended by the plaintiff. The plaintiff and defendants are not the members of Hindu undivided joint family. The family tree produced by the plaintiff is created by the plaintiff for his convenience and it is false. It is true that the suit schedule Item No.1 property property was purchased by 8 O.S.No.2776/2021 Subbashetty and Manchamma from K.Bhagyamma through the registered sale deed dated 13.04.1994. The plaintiff has lost the status of son of said Manchamma and Subbashetty from the date of execution of the adoption deed. It is further stated in the written statement that late Subbashetty by investing all his life time savings and also with the help of financial contribution of defendant No.1 and his son late Jagadish could able to purchase and construct the Item No.1 of the suit schedule property. The said Subbashetty used to utilize his pension and the rents received from the Item No.1 property towards his family maintenance. It is further stated in the written statement that the said Subbashetty and Manchamma were died intestate leaving behind the defendants No.1, 3, 5 and 6 and their children only as their legal heirs to succeed to their property. Subbashetty and Manchamma with the financial contributions of their sons i.e., defendant No.1 and Jagadish have constructed a residential house consisting of ground floor, first floor and 2 nd floor along with two commercial shops in the suit schedule Item No.1 property. In the residential house constructed in suit schedule Item No.1 property, Subbashetty and Manchamma along with defendant No.1, 5, 6 and their son Jagadish were residing. After having been adopted by Madhamma w/o Gunda Setty the plaintiff and defendant 9 O.S.No.2776/2021 were under the care and custody of their adoptive mother at Kalkere Doddi, Nidgal village, Kanakpura Taluk. The defendant No.7 was also under the care and custody of his adoptive parents Joga Setty and Gowramma @ Thayakka. Subbashetty and Manchamma were receiving the rent of commercial shops situated in suit schedule Item No.1 property during their life time. The plaintiff after demise of his adoptive mother Madamma W/o Late Gunda Setty started to residing at No.25, Sri Lakshmi Nilaya, T.G.Layout, Opp. Muneshwara Temple, Ittamadu, BSK III Stage, along with his wife and children. On 08.10.2020, the wife of plaintiff came to Item No.1 of the suit schedule property along with her henchmen and tried to claim right to Item No.1 of the suit schedule property. The defendant No.1, 2, 3, 5 and 6 have been paying the tax in respect of Item No.1 of suit schedule property since many years and Khatha of the said property is in the name of their father and mother. In view of adoption of the plaintiff by Smt.Madamma W/o Gunda Setty in the year 1985, the plaintiff has no right, title or interest interest in respect of Item No.1 and Item No.2 of the suit schedule property. There is no joint family status amongst the plaintiff and defendants. On these among other grounds, the defendants No.1 to 3, 5 and 6 have prayed to dismiss the suit filed by the plaintiff.
10 O.S.No.2776/20214. The defendant No.4 in the written statement has admitted that the plaintiff and defendants No.1, 5 to 7 and deceased Jagadeesh, the husband of the defendant No.3 and defendant No.4 are the children of Subbashetty and Manchamma. The defendant No.4 in his written statement has further contended that the plaintiff at the age of 16 years and defendant No.4 at the age of 17 years had given in adoption to Madamma w/o Late Gunda Shetty by following necessary rituals and also by executing a registered adoption deed on 08.07.1985. Ever since then the plaintiff and the defendant No.4 have lost of their rights, title and interest in respect of the properties of their natural parents and had acquired the right over the properties left behind by their adoptive parents. Since the date of adoption, the plaintiff and defendant No.4 were grown and brought up in care and custody of their adoptive parents. Adoptive mother of defendant No.4 had performed her marriage and also marriage of plaintiff. Thereafter, the defendant No.4 started living at her matrimonial home. The plaintiff continue to live with his adoptive mother. The plaintiff has acquired immovable properties belonging to Madamma w/o late Gunda Shetty and used silver and golden ornaments belonging to the plaintiff. The defendant No.4 had requested the plaintiff to give her share in the properties left behind by Smt.Madamma and Gunda 11 O.S.No.2776/2021 Sheety. Though the plaintiff has promised to give the share, he did not do so. After lapse of nine years from the date of adoption, Subbashetty had purchased Item No.1 of suit schedule property by virtue of registered sale deed. The plaintiff and defendant No.4 have no right, title interest in the suit schedule property. There is no joint family status amongst the plaintiff, the defendants No.1 to 3, 5 to 7 and defendant No.4. The defendant No.7 was also given in adoption to Joga Shetty. The defendant No.7 was also not having any right in the suit schedule properties. Item No.2 of the suit schedule property is absolute property of defendants No.1 and 2. The plaintiff and defendant No.4 have lost their right, title and interest in view of their valid adoption. The defendant No.4 has specifically denied all other averments and allegations made in the suit plaint. On these among other grounds, the defendant No.4 has prayed to dismiss the suit filed by the plaintiff.
5. The defendant No.7 in the written statement has contended that the plaintiff and defendant No.4 were given in adoption to Madamma wife of late Gunda Shetty by following necessary rituals and also by executing a registered adoption deed on 08.07.1985. Likewise, the defendant No.7 was also in adoption to Joga Shetty and Smt.Gowramma @ Thayakka when he was aged about 10 12 O.S.No.2776/2021 years. Since the date of adoption, the plaintiff, defendant No.4 and 7 have grown and brought up in care and custody of their adoptive parents. They have no right, title and interest in respect of the properties of their natural parents and had acquired the right over the properties left behind by their adoptive parents. After lapse of nine years from the date of adoption, Subbashetty had purchased Item No.1 of suit schedule property by virtue of registered sale deed. Item No.1 of suit schedule property is the absolute property of defendants No.1 and 2. The plaintiff and defendant No.4 and 7 have not right, title interest in the suit schedule properties. On these among other grounds, the defendant No.7 has prayed to dismiss the suit filed by the plaintiff.
6. Based upon the pleadings of both the parties, following 4 issues and one additional issue were came to be framed and the matter was posted for evidence:
ISSUES
1. Whether the plaintiff proves that the Suit Schedule properties are the joint family properties of themselves and defendants and no partition has been effected in the Suit Schedule property between them and the defendants?13 O.S.No.2776/2021
2. Whether the plaintiff proves that they are having 1/ 7th share each in the Suit Schedule properties?
3. Whether the plaintiffs are entitled for the reliefs as prayed for?
4. What order or decree?
Additional Issue
1. Whether the defendants prove that the plaintiff was adopted by the registered adoption deed dated 08.07.1985?
7. The plaintiffs in order to prove his case has adduced the oral evidence of general power of attorney holder of plaintiff as P.W.1. P.W.1 has produced 44 documents and got them marked as Ex.P.1 to P.44. The defendants in order to prove their case have adduced the oral evidence of defendant No.1 as D.W.1. D.W.1 has produced Ex.D.1 to D.22. The defendant No.7 has adduced his oral evidence as D.W.2 and he has produced Ex.D.23 to D.25 documents. The defendant No.4 has adduced her oral evidence as D.W.3. D.W.3 has not produced any documents. Then, the matter was posted for arguments.
8. Heard the arguments of Learned counsel for the plaintiff and Learned counsel for the defendants. The 14 O.S.No.2776/2021 Learned counsel for the plaintiff has filed his written arguments with citations. Perused the pleadings, oral and documentary evidence adduced on behalf of both the parties, written arguments and citations and other materials on record.
9. Having done so, my answer to the aforesaid issues are as follows:
Issue No.1 : In Partly Affirmative
Issue No.2 : In Partly Affirmative
Issue No.3 : In Partly Affirmative
Addl. Issue No.1 : In Negative
Issue No.5 : As per final order,
for the following :
REASONS
10. Issues No.1 and Additional Issue: These issues are inter related to each other and as such they are taken up together for discussion to avoid repetition of facts.
According to the plaintiff, the suit schedule properties are joint family properties of herself and defendants and no partition has been effected in the suit schedule properties. Further according to the plaintiff, he has demanded the defendants to effect partition and defendants have refused to give his share in the suit schedule properties. As such, 15 O.S.No.2776/2021 the burden is upon the plaintiff to prove that the suit schedule properties are the joint family properties of himself and defendants and no partition is effected in the suit schedule property and he is having share in the suit schedule properties. The suit schedule Item No.1 property as described in the schedule of the plaint, is new Municipal No.23 (Old No.88), situated at 22nd Main Road, Nagendra Block, PES College Road, Hanumanthanagar, Bengaluru. Suit schedule Item No.2 property is the residential property bearing No.912, present corporation No.912/7, situated at Magadi Road, Chord Road Extension, 2nd Cross, 5th Main, Bengaluru.
11. The plaintiff in order to discharge burden of proving his case, has adduced the oral evidence of his GPA holder i.e., his wife as P.W.1. P.W.1 in her examination-in- chief has deposed that late Subbashetty and Manchamma had 6 sons and one daughter. Out of 6 sons, one son Jagadeesh passed away on 01.12.2014. The defendant No.3 is the wife of Jagadeesh. P.W.1 in her examination-in- chief has further deposed that suit schedule Item No.1 property was jointly purchased by plaintiff's parents namely Late Subbashetty and Late Manchamma from K.Bhagyamma through a registered sale deed dated 30.03.1994. P.W.1 in her examination-in-chief has further 16 O.S.No.2776/2021 deposed that Late Subbashetty had developed a suit schedule Item No.1 property and constructed building of two floors. In ground floor, one residential house and two commercial shops was constructed. On the first floor, there are two residential houses and in second floor, there is one residential house consisting of double bedrooms. P.W.1 in her examination-in-chief has further deposed that the plaintiff and his children were taking care of Subbashetty and Manchamma while they were alive and have been staying in the ground floor of suit schedule Item No.1 property. The houses situated in the first floor and second floor along with two commercial shops were used by some of the defendants for some time and later the same were rented out. P.W.1 in her examination-in-chief has further deposed that some portion of rental income that accrued was utilized by Late Subbashetty towards his and his wife's welfare and the remaining monies were given to defendant No.1 to take care of the needs of other family members. P.W.1 in her examination-in-chief has further deposed that Subbashetty was died intestate on 17.06.2003 leaving behind his wife Manchamma, defendant No.1, 4 to 7 and plaintiff as his legal heirs. After death of Subbashetty, defendant No.1 was looking after day today affairs of the family being Kartha. The defendant No.1 was collecting monthly rents from respective tenants to whom commercial 17 O.S.No.2776/2021 shops on ground floor and residential houses on first floor and second floor of Item No.1 property were rented out. On 17.12.2018 Manchamma was died. P.W.1 in her examination-in-chief has further deposed that the defendant No.1 and his wife being Managers of the family by misusing the joint family funds i.e. monthly rents accrued from Item No.1 of the schedule property, jointly purchased suit schedule Item No.2 property through registered sale deed dated 07.05.2014 from joint family funds. The defendants no independent right, title and interest over the Items No.1 and 2 of suit schedule properties as the same belongs to Hindu undivided family of Late Subbashetty and Manchamma. P.W.1 in her examination-in-chief has further deposed that plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties and plaintiff has requested the defendants to effect partition in the suit schedule properties and the defendants have refused to effect partition in the suit schedule properties and they have refused to give plaintiff's share in the suit schedule properties and they are attempting to alienate suit schedule properties by depriving plaintiff's share. Hence, P.W.1 has prayed to decree the suit and allot his 1/7th share in the suit schedule properties to the plaintiff.
18 O.S.No.2776/202112. P.W.1 apart from adducing his oral evidence has produced certain documents. Ex.P.1 is the GPA executed by the plaintiff to her to depose on behalf of the plaintiff in the present suit. Ex.P.2 is the genealogy tree of late Subbashetty. Ex.P.3 is the certified copy of Sale Deed dated 30.03.1994 obtained under RTI Act with respect to the suit schedule Item No.1 property. Ex.P.4 and 5 are the certified Copy of Khatha Extract and Khatha certificate dated 17.02.2000 obtained under RTI Act. Ex.P.6 is the certified copy of Death Certificate of Subbashetty obtained under RTI Act. Ex.P.7 is the certified copy of sale deed dated 07.05.2014 with respect to suit schedule Item No.2 property in the name of defendants No.1 and 2. Ex.P.8 is the certified copy of EC of suit schedule Item No.2 property from 01.08.2004 to 11.02.2021. Ex.P.9 is the certified copy of Tippani Sheet issued under RTI Act with respect to suit schedule Item No.1 property. Ex.P.10 is the certificate copy of Khatha transfer application form. Ex.P.11 is the certified copy of the affidavit. Ex.P.12 is the attestation of family tree of late Subbashetty. Ex.P.13 is the endorsement dated 09.04.2021 issued by BBMP. Ex.P.14 is the certified copy of death certificate of Manchamma. Ex.P.15 is the notary true copy of Aadhar Card of plaintiff. Ex.P.16 is the original SSLC marks card of plaintiff. Ex.P.17 is the marriage invitation card of plaintiff. Ex.P.18 is the notary attested true 19 O.S.No.2776/2021 copy of Voter ID card of the plaintiff. Ex.P.19 is the notary attested true copy of Voter ID card of wife of plaintiff. Ex.P.20 is the notary true attested copy of Bank Pass Book of the plaintiff of Canara Bank. Ex.P.21 is the certified copy of Medical acceptance card of plaintiff. Ex.P.22 is the notary true attested copy of Gas Pass Book standing in the name of wife of the plaintiff. Ex.P.23 is the certified copy of order sheet in O.S.No.114/2022. Ex.P.24 is the certified copy of plaint in O.S.No.114/2022. Ex.P.25 is the original Study Certificate of the plaintiff. Ex.P.26 is the original Rural Candidate certificate of the plaintiff. Ex.P.27 is the certificate dated 13.06.1991 issued by Head Master of Dayananda Vasati Vidyalaya pertaining to the plaintiff. Ex.P.28 is the Study Certificate dated 13.06.1991 issued by Rural Multipurpose High School. Ex.P.29 is the complaint dated 01.07.2021 given by plaintiff to A.R.O. Ex.P.30 is the office copy of legal notice dated 11.01.2022. Ex.P.31 is the certified copy of FIR in Crime No.174/2020. Ex.P.32 is the FIR in Cr.No.174/2020. Ex.P.33 is the certified copy of complaint in Crime No.174/2020. Ex.P.34 is the certified copy of FIR in Crime No.175/2020 of Girinagar police station. Ex.P.35 is the certified copy of complaint in Crime No.175/2020 of Girinagar police station. Ex.P.36 is the letter dated 15.05.2000 issued by Indian Telephone Industries Ltd. Ex.P.37 is the character certificate issued by Javaraiah.
20 O.S.No.2776/2021Ex.P.38 to 42 are the photographs. Ex.P.43 is the Agreement of sale dated 11.10.2021. Ex.P.44 is the ration card of Subbashetty.
13. The defendants on the other hand have admitted the fact that one Subbashetty and Manchamma are the parents of plaintiff and the defendants No.1 to 7. But they have contended that the plaintiff was given in adoption to one Madamma when he was aged about 16 years by performing necessary rituals followed by execution of registered adoption deed dated 08.07.1985. They have further contended that the defendant No.4 was given in adoption to Madamma W/o Gunda Shetty when she was aged about 17 years. Hence, the defendants have denied the contention of the plaintiff that he is the son of Subbashetty and Manchamma. The defendants have contended that after the plaintiff was given in adoption to Madamma W/o Gunda Shetty, the plaintiff has lost his right in the properties of his biological parents and the plaintiff has no right, title or interest over the suit schedule properties.
14. D.W.1 in his examination-in-chief has stated that the plaintiff and defendant No.4 were given in adoption to Madamma W/o Gunda Shetty by performing all the rituals and by execution of registered adoption deed and as 21 O.S.No.2776/2021 such, the plaintiff has no right or share in the suit schedule properties. D.W.2 in his examination-in-chief has also stated that the plaintiff and the defendant No.4 have given in adoption to Madamma. As such, the plaintiff has no right over the suit schedule Item No.1 property. Further D.W.3 who is the defendant No.4 has also stated in her examination-in-chief that she and plaintiff were given in adoption to Madamma W/o Gunda Shetty by performing necessary rituals and by execution of registered adoption deed dated 08.07.1985. D.W.3 in her examination-in-chief has further stated that since the date of their adoption, they have lost all their right, title and interest in respect of properties of their natural parents and had acquired right over the properties of their adoptive parents. D.W.3 in her examination-in-chief has further stated that since the date of adoption, she and plaintiff were grown and brought up at the house of their adoptive mother and their adoptive mother has performed her marriage and marriage of plaintiff.
15. Since the plaintiff is claiming his right and share over the suit schedule property on the basis of the fact that he is the son of late Subbashetty and Manchamma and since the defendants have specifically denied the status of the plaintiff as the son of the Subbashetty and 22 O.S.No.2776/2021 Manchamma and since they have contended that the plaintiff was given in adoption to Madamma W/o Gunda Shetty, I am of the opinion that before discussing the issue regarding whether the plaintiff is entitled to get partition and separate possession of his share in the suit schedule properties or not, the issue regarding whether the plaintiff was given in adoption to Madamma W/o Gunda Shetty or not has to be adjudicated first. It is to be noted here that the plaintiff has filed O.S.No.114/22 on the file of 1 St Addl. Civil Judge and JMFC, Kanakapura against the defendants and Madamma seeking the relief of declaration to declare the adoption deed dated 08.07.1985 as null and void and seeking cancellation of other instruments. The issue whether the adoption deed dated 08.07.1985 is null and void has to be adjudicated in the suit for declaration pending before 1St Addl. Civil Judge and JMFC, Kanakapura. The said question is not directly in issue in the present suit. But as it is stated earlier, the plaintiff is claiming his share over the suit schedule property on the basis of fact that he is the son of Subbashetty and Manchamma and on the basis of the fact that the suit schedule property is joint family property of himself and defendants, the question of consideration of the dispute regarding whether the plaintiff has been adopted by Madamma W/o Gunda Shetty or not through adoption deed 23 O.S.No.2776/2021 dated 08.07.1985 is required to be adjudicated in the present suit before considering the issue whether the plaintiff is entitled for the share in the suit schedule property or not. Further it is to be noted here that during the pendency of the suit, the plaintiff has filed I.A.No.1/23 before this court praying for recasting of issue. The said application was came to be dismissed. Thereafter, the plaintiff has preferred W.P.No.7464/2023 before Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka vide order dated 11.07.2023 has directed to frame additional issue regarding adoption deed dated 08.07.1985. In view of direction of the Hon'ble High Court of Karnataka, the additional issue "Whether the defendants prove that the petitioner was adopted by registered adoption deed dated 08.07.1985?" was came to be framed. As such, the said issue has to be answered first before answering Issue N.1 to 3.
16. The burden of proving the additional issue is on the defendants since it is the defendants who have specifically contended that the plaintiff has given in adoption to Madamma W/o Gunda Shetty through registered adoption deed dated 08.07.1985. The defendants No.1 to 3, 5 and 6 in order to discharge the burden of proving additional issue have adduced the oral 24 O.S.No.2776/2021 evidence of defendant No.1 as D.W.1. Further defendant No.7 has adduced his oral evidence as D.W.2. Further defendant No.4 has adduced her oral evidence as D.W.3. D.W.1 to 3 in their examination-in-chief filed by way of affidavit have also deposed that when the plaintiff was aged about 16 years and when defendant No.4 was aged about 17 years, they were given in adoption to Smt.Madamma W/o Gunda Shetty by performing necessary rituals and followed by execution of registered adoption deed dated 08.07.1985. Hence, they have deposed in their examination-in-chief that the plaintiff and defendants No.1 to 4 by virtue of said adoption deed will became the adopted children of Madamma W/o Gunda Shetty and they cannot be considered as children of Subbashetty and Manchamma. The defendants in support of their oral evidence have also produced the copy of Pan Card of plaintiff No.1 at Ex.D.1. The defendants have produced certified copy of adoption deed dated 08.07.1985 at Ex.D.10. The defendants have produced the certificate issued by Karnataka State Pharmacy Council pertaining to the plaintiff at Ex.D.9 in order to prove their contention that the name of father of the plaintiff is shown as Gunda Shetty and not Subbashetty.
25 O.S.No.2776/202117. The Learned counsel for the plaintiff has argued that the plaintiff has to knowledge about the adoption deed only after the defendants have filed their written statement and the said adoption deed was forged and fabricated one. The Learned counsel for the plaintiff has further argued that the adoption deed is null and void as per Sec.5, 6 and 10 of Hindu Adoption Maintenance Act. There is no custom in their community that permits persons who have completed the age of fifteen years to be taken in adoption. The plaintiff was aged about 17 years as on the date of execution of adoption deed. The Learned counsel for the plaintiff has further argued that when the adoption deed is in violation of Hindu Maintenance and Adoption Act, the presumption u/Sec.16 of the Act is not applicable. The Learned counsel for the plaintiff has further argued that Madamma neither had any capacity nor had any means to take plaintiff in adoption. Hence, it is argued that the adoption is not valid and legal.
18. The Learned counsel for the defendants on the other hand, has argued that the adoption of plaintiff to Madamma was done in accordance with law and customs by following all rituals. The Learned counsel for the defendants has further argued that registered adoption deed was also executed on 08.07.1985 and the adoption is 26 O.S.No.2776/2021 evidenced by registered deed of adoption. Hence, u/Sec.16 of Hindu Adoption and Maintenance Act, presumption has to be raised that adoption has been made in compliance with provision of the act. The Learned counsel for the defendants has further argued that presumption of performance of adoption ceremonies mentioned in the adoption deed has to be drawn u/Sec.16 of Hindu Adoption and Maintenance Act. The Learned counsel for the defendants has further argued that it is for the plaintiff to prove that the adoption is not in accordance with law and the plaintiff has failed to adduce any sufficient evidence to disbelieve the adoption deed. In support of his argument, the learned counsel for the defendants has relied upon following decisions:
1. ILR 1988 KAR - Ramanna Gowda V/s Shankarappa
2. AIR 1992 BOMBAY 189 - Devgonda Raygonda Patil V/s Shamgonda Raygonda Patil and another
3. AIR 1998 ALLAHABAD 230 - Baru (since deceased) and another V/s. Tej Pal and other
4. (2005) 12 SCC 290 - Basavarajappa V/s.
Gurubasamma and others
5. ILR 2006 KAR 1740 - Veerabhadrayya R. Hiremath and others V/s. Irayya A.F. Basayya Hiremath
6. AIR 2007 PATNA 78 - Gauri Shankar Prasad Singh and others V/s Baid nath Prasad Sing 27 O.S.No.2776/2021
7. ILR 2007 KAR 4381 - Channabasappa A/F Muppayya V/s Veerayya Ulavayya Hiremath and others
8. AIR 2011 JHARKAND 60 - Pritam Singh V/s Arjun Sing and another.
19. It is not in dispute that the biological parents of the plaintiff are Subbashetty and Manchamma. The defendants are contending that the plaintiff when he was aged about 16 years and defendant No.4 when she was aged about 17 years were given in adoption to Madamma W/o Late Gunda Shetty of Kallukere Doddi, Nidagal Village, Kasaba Hobli, Kanakpura Taluk, by performing necessary rituals and executing a registered adoption deed dated 08.07.1985. The learned counsel for the plaintiff in the written arguments has contended that the said adoption deed is created for the purpose of enabling some of the children of Subbashetty and Manchamma to get the benefit of reservation even though they were not entitled for the same as the income of late Subbashetty exceeded the cap set by the government to avail the benefits and the pay was not having knowledge about the said adoption deed and plaintiff has came to know about the said adoption deed only when the defendants have filed their written statement. The defendants have produced the certified copy of adoption deed of plaintiff and defendant No.4 at Ex.D.10.
28 O.S.No.2776/2021Before discussing whether the adoption deed dated 08.07.1985 is valid or not and whether the plaintiff was given in adoption to Madamma in accordance with law or not, I am of the opinion that the relevant provision of law regarding the adoption as provided under Hindu Adoption and Maintenance Act are required to be mentioned herein. Sec.5 of the Hindu Adoption and Maintenance Act provides as follows:
(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
20. Sec.6 of the Hindu Adoption and Maintenance Act, 1956, provides for requisites that are necessary for a valid adoption. Sec.6 of the Act provides as follows:
No adoption shall be valid unless -
(i) the person adopting has the capacity, and also the right, to take in adoption;29 O.S.No.2776/2021
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
21. Since in the present case, the defendants are alleging that the plaintiff was given in adoption to Madamma i.e. a female Hindu, it is relevant to mentioned the provision Sec.8 of the Hindu Adoption and Maintenance Act which provides for capacity of female Hindu to take in adoption. Sec.8 of the Act provides as follows:
Capacity of a female Hindu to take in adoption.―Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption:
Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.]
22. Sec.10 of the Hindu Adoption and Maintenance Act provides for persons who may to adopted 30 O.S.No.2776/2021 No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:―
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
23. Sec.16 of the Hindu Adoption and Maintenance Act provides as follows:
Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
24. Thus from the aforesaid relevant provisions of the Hindu Adoption and Maintenance Act, it is clear that an adoption of a Hindu male or female can be given to any Hindu male or female subject to the condition prescribed under the said act. As per Sec.8, the persons adopting has a capacity and also a right to take any adoption. As per 31 O.S.No.2776/2021 Sec.8 of the Act, any female Hindu who is of sound mind has capacity to take a son or daughter in adoption. It is not the case of the plaintiff that Madamma is not in sound mind as on the date of alleged adoption. As such, Madamma has got capacity to take adoption. According to the provisons of Sec.8, a female Hindu having husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. The husband of Madamma was also died as on the date of alleged adoption.
25. On combined reading of Sec.5, 6 and 10, it would be clear that an adoption which is not in strict compliance with provision of law will be avoid. The Hon'ble Supreme Court of India in Zilla Singh and another V/s Gandgi and others (AIR 1991 SC 263) an Hon'ble High Court of Karnataka in Smt.Parvathamma W/o late Veerappa V/s Shivakumar and others (AIR 2014 Kar 104) and Hon'ble Bombay High Court in Balakrishna Raghunath Gharat V/s Sadashiv Hira Gharat (AIR 1977 Bombay 412), have laid down the principle that a adoption of a person over the age of 15 years and adoption in violation of provision of Sec.10(4) of Hindu Adoption and Maintenance 32 O.S.No.2776/2021 Act is invalid and null and void. In those cases, it is specifically held that the adoption of the person over the age of 15 years is in violation and is contrary to Sec.10(4) of Hindu Adoption and Maintenance Act and where no custom or usage has been established as required by law for adoption of a person above 15 years of age, the said adoption is invalid and it is null and void. Thus from the principle laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, in the decisions referred above, it is clear that violation of any provision of Sec.10 of Hindu Adoption and Maintenance Act would make the adoption invalid and null and void even though there is a presumption regarding Sec.16 of Hindu Adoption and Maintenance Act. As stated above, if it is proved that the adoption is in violation of Sec.10 of Hindu Adoption and Maintenance Act, then the adoption can be declared as null and void and invalid and presumption u/Sec.16 of the Act cannot be drawn in such cases.
26. Now let examine the oral and documentary evidence adduced in present case on behalf of the plaintiff and defendants in order to adjudicate whether there is any violation of conditions mentioned in Sec.10 of the Hindu Adoption and Maintenance Act or not. The plaintiff is mainly challenging the adoption on the ground that he was over 33 O.S.No.2776/2021 the age of 15 years as on the date of alleged adoption deed and there is no customs and usage prevailing in their caste which permit the adoption of a person over the age of 15 years. The plaintiff has challenged the adoption on the ground that Madamma had no capacity to adopt him and his sister.
27. The burden of proving that there was a valid adoption through registered Adoption deed on 08.07.1985 of the plaintiff is upon the defendants. As per order of Hon'ble High Court of Karnataka, burden of proving additional issue is upon the defendants. Ex.D.10 is the certified copy of registered adoption deed dated 08.07.1985. The original adoption deed is not produced by the defendants. As per the said adoption deed Madamma W/o Gunda Shetty adopted the plaintiff and defendant No.4. In adoption deed, it is mentioned that her husband was died and she owns movable and immovable properties and she has no issues and as such, she adopted the plaintiff and defendant No.4. Further in the adoption deed, there is mention that the plaintiff was aged about 16 years and defendant No.4 was aged about 17 years as on the date of the adoption deed. In the adoption deed, there is no mention about performance of any rituals at the time of giving the plaintiff and defendant No.4 in adoption to 34 O.S.No.2776/2021 Madamma. Further in the adoption deed, there is no mention about existence of any custom prevailing in their community which permits giving adoption of a person aged below 18 years. The details of movable and immovable properties standing in the name of Madamma is also not specifically mentioned in the adoption deed.
28. From Ex.D.10, it is clear that the plaintiff was aged about 16 years and defendant No.4 was aged about 17 years as on the date of adoption. Hence, it is clear that the adoption of the plaintiff and defendant No.4 is in violation of Sec.10(4) of the Hindu Adoption and Maintenance Act. The defendants in their written statement have not pleaded anything regarding the existence of any customs or usage in their community which permits the adoption of a person over the age of 15 years. D.W.1 in his chief-examination at para No.5 has stated that there is a specific custom in their Kumbar Caste to adopt the person below the age of 18 years. D.W.1 in his cross-examination has admitted that they belongs to Kumbarshetty caste and admitted that the said caste comes under 2(a) category. D.W.1 in his cross-examination has admitted that in Ex.D.10, the age of the defendant No.4 is shown as 17 years and age of the plaintiff is shown as 16 years. D.W.1 in his cross-examination has further admitted that he do not 35 O.S.No.2776/2021 know about the income of Madamma and he do not know about the properties standing in the name of Madamma. D.W.1 in his cross-examination has further admitted that in Ex.P.16, the date of birth is shown as 05.11.1967 and his father's name is shown as Subbashetty and admitted that from 05.11.1967 to 08.07.1985, the age of the plaintiff would be 17 years, 8 months and 3 days. It is clear from the admission of D.W.1 as well as from date of birth of plaintiff that the age of the plaintiff as on the date execution of alleged adoption deed is not 16 years and it was 17 years,8 months and 3 days. D.W.1 in his cross-examination has further admitted that in Ex.P.17, the marriage invitation card of the plaintiff, the plaintiff is shown as third son of the Subbashetty. D.W.1 in his cross-examination has further admitted that he has not produced any document to show that the plaintiff was lived with Madamma after the date of alleged adoption deed.
29. D.W.3 in her cross-examination has stated that her date of birth is 03.08.1985. She has further stated in her cross-examination that she has not produced her SSLC marks card as the same is not available with her. She has further stated in her cross-examination that in her SSLC marks card her parents name is shown as Madamma and Gunda Shetty, again she has stated that she do not know 36 O.S.No.2776/2021 whose name is mentioned as her parents in her SSLC marks card. D.W.3 in her cross-examination has further stated that she has not produced her PUC marks card and admitted that her educational expenses from first standard to 11th standard were borne by Subbashetty and Manchamma. D.W.3 in her cross-examination has further stated that she do not remember at what age she was given in adoption to Madamma. She was living with Madamma in Kanakapura village. She cannot remember the address of house of Madamma. D.W.3 in her cross- examination has further stated that Madamma was doing agricultural and pottery work and she do not know how much land Madamma was owning and how much income she had from agricultural. D.W.3 in her cross-examination has further stated that her marriage was took place on 01.07.1991 and in her marriage invitation card her father name is shown as Subbashetty and mother name is shown as Manchamma and her biological parents have conducted her "Dhare" ceremony in her marriage. D.W.3 in her cross- examination has further stated that she do not remember whether she has produced any document to show that she was lived with Madamma. She cannot produce the photo of Madamma and Gunda Shetty, as photos were not available at that time. Neither defendant No.4 nor other defendants have produce any document to show that the plaintiff and 37 O.S.No.2776/2021 defendant No.4 were lived along with Madamma as her adopted children.
30. Further they have not produced any document to show that the Madamma has got financial capacity and she has got immovable properties with sufficient source of income to adopt two children and to educate them and to look after them. Husband of Madamma was not alive at the time of alleged adoption deed. What was the necessity for Madamma to adopt the two children after the death of her husband is not properly explained. The vailid reasons for adoption of the plaintiff and defendant No.4 is not mentioned. No single document is produced to show that Madamma was having immovable properties in her name. The photos of the plaintiff and defendant No.4 with Madamma is not produced. D.W.3 in her cross-examination has stated that D.W.3 her marriage was not conducted by Madamma and it was conducted by Subbashetty and Manchamma i.e. her biological parents. D.W.3 in her cross- examination has further stated that her adopted mother name is mentioned in her college documents. No such documents are produced by the defendant No.4 to show that her parents name is shown as Madamma and Gunda Sheety in her school records or public documents. The plaintiff has produced Ex.P.15 his Adhaar Card. The plaintiff 38 O.S.No.2776/2021 has produced his SSLC marked card at Ex.P.16. The plaintiff has produced his marriage invitation card at Ex.P.17 and Adhaar card and SSLC marks card, the name of father of plaintiff is shown as Subbashetty. The marriage of plaintiff was took place on 19.06.1998. In the year 1998, in the marriage card of the plaintiff, name of his father is shown as Subbashetty. In the marriage invitation card, there is no reference about the name of Madamma and Gunda Shetty even though it is alleged that Madamma and Gunda Shetty are the adopted parents of plaintiff. In Ex.P.18, his father name is shown as Gunda Shetty. Further the plaintiff has also filed suit bearing O.S.No.114/2022 before the Prl. Civil Judge and JMFC Court, Kanakapura, praying to declare the adoption deed dated 08.07.1985 as null and void and to cancel the said document.
31. Ex.P.15 is the rural study certificate of the plaintiff. Ex.P.16 is the rural candidate certificate of the plaintiff. Ex.P.17 and 25 are the school certificates of the plaintiff. In all the documents, father name of the plaintiff is shown as Subbashetty. The defendants have much relied upon Ex.D.1 copy of Pan card and Ex.P.9 certificate issued by Karnataka State Pharmacy Counsel, in order to prove their contention that Gunda Shetty is the father of the plaintiff. Ex.D.1 and D.9 is not the original documents and 39 O.S.No.2776/2021 except the said documents, there are no substantial documents to show that after alleged adoption of the plaintiff on 08.07.1985, the name of Madamma and Gunda Shetty has mentioned as adopted parents of the plaintiff in all the documents pertaining to plaintiff. Under these facts and circumstances, the Ex.D.1 and D.9 cannot be considered as the substantive documentary evidence to hold that the plaintiff is the son of Gunda Shetty and the plaintiff was given in adoption to Madamma W/o Gunda Shetty on 08.07.1985.
32. From the aforesaid oral and documentary evidence adduced on behalf of the plaintiff and defendants, it is clear that when the alleged adoption of the plaintiff and defendant No.4 took place on 08.07.1985 as per Ex.D.10, the plaintiff was aged more than 15 years and defendant No.4 was aged about more than 17 years. Whereas as per Sec.10(4) of the Hindu Adoption and Maintenance Act, the person who has completed the age of 15 years cannot be given in adoption unless customs or usage applicable to the parties which permits the persons who have completed the age of 15 years being taken in adoption. As it is stated earlier, the defendants have not pleaded regarding the existence of custom and usage in their Kumbarshetty caste which permits giving adoption of a person aged more than 40 O.S.No.2776/2021 15 years of age. Further during the course of cross- examination of P.W.1 suggestion was put stating that according to their custom, a person aged below 18 years can be given in adoption and there is similar custom in the family of her husband also. But in order to substantiate the said suggestion, the defendants have not adduced any believable evidence. The defendants have not placed on record any instances of such adoption take place in their community. Except say of defendants No.1 and 4 in the chief-examination and suggestion put to D.W.1 in the cross- examination, no substantial materials are produced by the defendants to indicate the customs or usage in Kumbarshetty community permitting adoption a person aged about more than 15 years. The defendants have failed to plead and prove the existence of custom or usage which permits the person who have completed 15 years being taken in their adoption. Under these facts and circumstances, it is clear that there is no custom or usage prevailing in Kumbarshetty community which permits a person who has completed 15 years can be given in adoption. As such, the case of the defendants will not come within the exception provided u/Sec.10(4) of the Hindu Adoption and Maintenance Act. Hence, there is clear violation of Sec.10(4) of the Hindu Adoption and Maintenance Act in giving plaintiff in adoption to Madamma.
41 O.S.No.2776/2021Since there is a violation of provision of Sec.10(4) of the Hindu Adoption and Maintenance Act and since the alleged adoption of plaintiff and defendant No.4 is contrary to Sec.10(4) of the Hindu Adoption and Maintenance Act and since existence of custom and usage in the Kumbarshetty community permitting the adoption of person who is aged about more than 15 years is not been established as required by law, I am of the opinion that the alleged adoption of the plaintiff as per Ex.D.10 cannot be considered as valid adoption. Under these facts and circumstances, presumption u/Sec.16 of the Hindu Adoption and Maintenance Act also cannot be raised in favour of the adoption deed. Hence, I am of the opinion that it cannot be held that the defendants have proved adoption of the plaintiff and defendant No.4 to Madamma as per the registered adoption deed dated 08.07.1985 in accordance with the provision of the Hindu Adoption and Maintenance Act. In the present suit the plaintiff has not sought for the prayer of declaration to declare that the adoption deed dated 08.07.1985 is null and void. Hence, I am of the opinion that no specific finding can be given in the present suit that the adoption deed dated 08.07.1985 is null and void or illegal. The plaintiff has filed a separate suit before Kanakapura Court seeking the same relief. But for deciding the other issues and in view of additional issue, this court 42 O.S.No.2776/2021 has to decide on the basis of available materials on record that the adoption deed dated 08.07.1985 is not in accordance with the provisions of the Hindu Adoption and Maintenance Act and there is clear violation of Sec.10(4) of the Hindu Adoption and Maintenance Act. As such, I am of the opinion that the defendants have failed to prove that the plaintiff was given in adoption to Madamma through registered adoption deed dated 08.07.1985. Hence, I am of the opinion that the defendants have failed to prove additional issue. Accordingly, I answer Additional Issue No.1 in Negative.
33. The plaintiff has sought for partition and separate possession of his share in suit schedule Item No.1 and 2 properties. Suit schedule Item No.1 property as described in the schedule of the suit plaint is the residential property bearing Municipal No.23 (Old No.88), situated at 22nd Main Road, Nagendra Block, PES College Road, Hanumanthanagar, Bengaluru. According to the plaintiff, suit schedule Item No.1 property was originally belongs to one Bhagyamma. The said property was purchased by Subbashetty and Manchamma jointly on 13.04.1994 from said Bhagyamma. Further according to the plaintiff, Subbashetty has constructed residential house consisting of ground, first and second floor in the said property including two shops and houses. Further according tot he 43 O.S.No.2776/2021 plaintiff, Khatha extract and Khatha certificate of suit schedule Item No.1 property stands in the name of Subbashetty and Manchamma. Further according to the plaintiff, Subbashetty and Manchamma were died intestate and no partition was effected in the suit schedule property between him and defendants and he is having 1/ 7th share in the suit schedule Item No.1 property property. P.W.1 who is general power of attorney holder of the plaintiff has deposed in her examination-in-chief about all the aforesaid facts as pleaded in the suit plaint. Hence, the same are not reproduced herein to avoid repetition of facts.
34. P.W.1 apart from adducing her oral evidence has also produced certain documents. Ex.P.3 is the certified copy of sale deed dated 13.04.1994 with respect to Item No.1 property which is executed jointly in the name of Subbashetty and Manchamma. Ex.P.4 and 5 are the Khatha extract and Khatha certificate dated 17.02.2020 standing in the name of Subbashetty and Manchamma with respect to suit schedule Item No.1 property. Ex.P.6 is the certified copy of the death certificate of Subbashetty. The said document reveals the fact that Subbashetty was died on 17.06.2003. According to P.W.3, the defendant No.1 is trying to change the Khatha of Item No.1 property in his name and the plaintiff has filed objection to the same. P.W.1 44 O.S.No.2776/2021 has produced Tippani sheet of BBMP at Ex.P.7. In Ex.P.7, there is reference about filing of Ex.D.1 to change the Khatha of said property in his name and filing of objection for the same. Ex.P.10 is the application given by defendant No.1 to change the Khatha of suit schedule Item No.1 property property in his name. Ex.P.11 is the affidavit given b y other defendants stating no objection to change Khatha of suit schedule Item No.1 property in the name of defendant No.1. Ex.P.12 is the attestation of family tree of Subbashetty and Manchamma. Ex.P.13 endorsement issued by BBMP on 09.04.2021 reveals the facts that Khatha of suit schedule Item No.1 property is still standing in the name of Subbashetty and Manchamma. Ex.P.14 is the death certificate of Manchamma. The said document reveals the fact that Manchamma was died on 17.12.2018.
35. D.W.1 in the cross-examination has admitted that suit schedule Item No.1 property is the self acquired property of Subbashetty and further admitted that his father and mother were living in the said property along with some of their children. D.W.1 has further admitted in the cross- examination that he and other defendants have entered into agreement with one V.Shivkumar on 11.10.2021 as per Ex.P.43 in respect of suit schedule Item No.1 property. D.W.1 in the cross-examination has admitted that his father 45 O.S.No.2776/2021 and mother have not executed any Will deed with respect to suit schedule Item No.1 property during their life time and further admitted that his father has constructed two shops, one house in ground floor and two houses in first floor and one house in the 2nd floor of suit schedule Item No.1 property. D.W.1 in the cross-examination has further admitted that even after the death of Subbashetty and Manchamma, suit schedule Item No.1 property is still standing in their names.
36. From the aforesaid materials on record, it is clear that the suit schedule Item No.1 property was jointly purchased by Subbashetty and Manchamma during their life time and it is an admitted fact that the said property is their absolute property. Further it is an admitted fact that both Subbashetty and Manchamma have died intestate. Further it is an admitted fact that no partition has been effected in the suit schedule Item No.1 property and the said property is still standing in the name of deceased Subbashetty and Manchamma. It is further admitted fact that Subbashetty and Manchamma have seven children. It is already discussed and held above in Additional Issue No.1 that the defendants have failed to prove their contention that the plaintiff was validly given in adoption to Madamma and he has lost his relationship as son of 46 O.S.No.2776/2021 Subbashetty and Manchamma. Since it is held that alleged adoption of the plaintiff dated 08.07.1985 is not in accordance with provision of Hindu Adoption and Maintenance Act and since it is held that the said adoption deed cannot be considered as valid adoption deed of plaintiff to Madamma, I am of the opinion that the plaintiff continue to be natural son of Subbashetty and Manchamma. Since Subbashetty and Manchamma have died intestate and since no partition in the suit schedule Item No.1 property either during the life time of Manchamma and Subbashetty and or after their death is proved, I am of the opinion that suit schedule Item No.1 property belonging to Subbashetty and Manchamma has to be succeeded by their legal heirs in the manner as provided u/Sec.8 and 14 of Hindu Successions Act, 1956. The plaintiff being one of the children of Subbashetty and Manchamma is having share in the property of their parents. Since, adoption of plaintiff through adoption deed dated 08.07.1985 cannot be considered as valid adoption, similarly the adoption of defendant No.4 through the said adoption deed also cannot be considered as valid adoption as she was also aged more than 15 years as on the date of her adoption. Further adoption of defendant No.7 to Jogashetty and Gowramma is also not proved by defendant with substantial oral and documentary evidence. As such, I 47 O.S.No.2776/2021 am of the view that all the seven children of Subbashetty and Manchamma are entitle to get equal share in Item No.1 property. As it is contended by the Learned counsel for the plaintiff that the three children of Subbashetty and Manchamma might have been given in adoption only to get seats in higher education on category basis. As such, nominal adoption might have been taken place. Further mere say of defendant No.4 and 7 that they have been adopted by Madamma and Jogashetty without substantial documentary and sufficient oral evidence is not sufficient to presume that they were adopted and they have lost their right over property of deceased Subbashetty and Manchamma. As such, I am of the opinion that the plaintiff has proved that he is having 1/ 7th share in the suit schedule Item No.1 property. The plaintiff has proved that the suit schedule Item No.1 property is the joint family property of himself and defendants and proved that no partition has been effected in the suit schedule Item No.1 property and proved that he is having 1/ 7th share in the suit schedule Item No.1 property.
37. The plaintiff in the present suit has also sought for partition and separate possession of his 1/ 7 th share in the suit schedule Item No.2 property. Suit schedule Item No.2 property as described in the schedule of the suit plaint is residential property bearing No.912, present corporation 48 O.S.No.2776/2021 No.912/7, measuring East to West 60 Feet, North tob South 40 Feet, situated at Magadi Road, Chord Road Extension, 2nd Cross, 5th Main, Bengaluru. According to the plaintiff, after the death of Subbashetty and Manchamma, the defendants No.1 and 2 being the Manager of the family have misused joint family funds i.e. monthly rents accrued from plaint schedule Item No.1 property and they are jointly purchased the suit schedule Item No.2 property through registered sale deed dated 07.05.2014 out of joint family funds. The plaintiff has also pleaded that similarly the defendants No.3 to 7 have also purchased the residential houses in Bengaluru out of joint family funds by misguiding and misusing the joint family funds. But the plaintiff has not specifically pleaded about the property which were purchased by defendants No.3 to 7 out of joint family funds and he has not included those properties in the present suit for partition. No documents are produced by the plaintiff to show that the defendants No.3 to 7 have purchased residential house in their name out of joint family funds.
38. P.W.1 in her examination-in-chief has also deposed that the defendants No.1 and 2 have purchased the suit schedule Item No.2 property out of the rental income received by them from the suit schedule Item No.1 property and hence, stated that suit schedule Item No.2 49 O.S.No.2776/2021 property is the joint family property of plaintiff and defendants and the plaintiff is having share in the suit schedule Item No.2 property.
39. On the other hand, the defendants No.1 and 2have denied the contention of the plaintiff that the suit schedule Item No.2 property was purchased by them out of rental income received by them from the suit schedule Item No.1 property and suit schedule Item No.2 property is the joint family property of plaintiff and defendants and the plaintiff is having share in the said property. The defendants No.1 and 2 have contended that the suit schedule Item No.2 property was purchased by them out of their independent income derived from their medical profession. The defendants No.1 and 2 have also contended that they have obtained loan from the bank for purchase of suit schedule Item No.2 property by mortgaging the same and they have discharged their debt and hence, contended that the suit schedule Item No.2 property is their self acquired property. The defendant No.4 and 7 in their written statement have also specifically contended that the suit schedule Item No.2 property is the self acquired property of defendants No.1 and 2 and they have contended that it is not the joint family property. They have also not made any prayer in the written statement seeking partition of their 50 O.S.No.2776/2021 share in the suit schedule Item No.2 property by contending that it is not their joint family property. D.W.1 to 3 in their examination-in-chief filed by way of affidavit have stated that suit schedule Item No.2 property is the self acquired property of defendants No.1 and 2 and it is not joint family property of plaintiff and further stated that the plaintiff is not having any share in the suit schedule Item No.2 property.
40. D.W.1 apart from adducing his oral evidence has produced certified copy of Sale Deed dated 07.05.2014 at Ex.P.7. As per the said document, suit schedule Item No.2 property was purchased in the joint name of defendants No.1 and 2 for total consideration amount of Rs.1,70,00,000/-. Ex.D.4 is Khatha endorsement issued by the BBMP stating that defendants No.1 and 2 are the joint owners of suit schedule Item No.2 property. Ex.D.15 and 16 are the property tax receipts of suit schedule Item No.2 property for the year 2022-23 and 2023-24. Ex.D.17 is the encumbrance certificate of suit schedule Item No.2 property. In the said encumbrance certificate, there is reference about Sale Deed of Item No.2 property in the name of defendants No.1 and 2, there is reference about mortgage of suit schedule Item No.2 property by defendants No.1 and 2 in favour of the bank for obtaining loan and there is reference about discharge of the said loan 51 O.S.No.2776/2021 amount and re-conveyance deed executed by the bank Ex.D.18 is the mortgage deed executed by defendants No.1 and 2 in favour of SBI for having received loan of Rs.95,20,000/- for purchase of suit schedule Item No.2 property. Ex.D.19 is the loan sanction letter. Ex.D.20 is the letter obtained on SBI regarding closure of house loan of defendants No.1 and 2 on suit schedule Item No.2 property dated 13.12.2019. Ex.D.21 is the acknowledgment issued by the defendants No.1 and 2 having received the original document pertaining to suit schedule Item No.2 property from the bank after clearing the mortgage debt. Ex.D.22 is the re-conveyance deed executed by the bank on 01.08.2023 in favour of defendants No.1 and 2.
41. The aforesaid oral and documentary evidence adduced on behalf of the defendants No.1 and 2 are sufficient to prove the fact that suit schedule Item No.2 property was purchased by defendants No.1 and 2 on 07.05.2014 for sale consideration amount of Rs.1,70,00,000/- by obtaining loan of Rs.95,20,000/- from the bank by mortgaging the said property.
42. P.W.1 in his cross-examination has admitted that defendant No.1 had purchased the suit schedule Item No.1 property and there was a loan on it and further stated that defendant No.1 has repaid the said loan amount. P.W.1 52 O.S.No.2776/2021 in the cross-examination has further admitted the fact that the defendant No.1 and 2 are the doctors by profession and the defendant No.1 was doing profession as doctor prior to his marriage. P.W.1 in her cross-examination has stated that the defendant No.1 has taken money from her and they have cheated her by not repaying the said money and hence, she is seeking partition in suit schedule Item No.2 property and there is no other reasons for seeking partition in suit schedule Item No.2 property. From the said evidence of P.W.2 in the cross-examination, it is clear that only on the ground that the defendants have taken money from her and they have cheated her, plaintiff is seeking partition in the suit schedule Item No.2 property and not on any other ground. P.W.1 has admitted about filing of suit bearing O.S.No.4804/2020 against the defendants No.1 and 2. The said suit was filed by the plaintiff only with respect to suit schedule Item No.1 property, for the relief of permanent injunction. The said suit was filed on 03.10.2020. P.W.1 in the cross-examination has stated that during first week of October 2020, they have sought for partition in the said property from the defendants and the defendants have refused to effect partition and they have refused to give their share. Even then the plaintiffs filed the suit bearing O.S.No.4804/2020 only with respect to Item No.1 of schedule property. No partition is sought for in Item No.1 53 O.S.No.2776/2021 property or in Item No.2 property. P.W.1 has admitted the fact of filing of suit bearing O.S.No.6517/2020. The documents pertaining to the said suit are produced at Ex.D.6 to D.8. The said suit was filed by the plaintiff on 07.10.2020. The said suit was filed for the relief of permanent injunction order. In the said suit also no relief of partition is sought for by the plaintiff. P.W.1 in the cross- examination has stated that the suit bearing O.S.No.6517/20 was filed to get stay order and partition. But no partition is sought for in the said suit. When it was asked to P.W.1 in the cross-examination as to why partition is not sought for in the said suit, P.W.1 replied that they wanted first to vacate the stay. P.W.1 in the cross- examination has stated that after the death of Manchamma, the defendant No.1 was getting rents and misused the same and purchased suit item No.2 property. It is to be noted here that Manchamma was died during 2018, whereas suit schedule Item No.2 property was purchased in the year 2014. As on the date of purchase of suit schedule Item No.2 property, she was residing in suit schedule Item No.1 property. P.W.1 has denied the suggestion put to her that Subbashetty and Manchamma were getting rents from suit schedule Item No.1 property during their life time. When it was suggested to P.W.1 during the course of her cross-examination that she has not 54 O.S.No.2776/2021 produced any document to show that income from suit schedule Item No.1 property, P.W.1 has replied that there is no connection between the same and her.
43. The plaintiff has failed to adduce any sufficient evidence to prove that during the year 2014, the defendant No.1 was receiving the rents from suit schedule Item No.1 property. Further the plaintiff has not produced any sufficient evidence to prove what was the income the joint family was getting in the year 2014 from suit schedule Item No.1 property. Further the plaintiff has failed to adduce any sufficient documentary evidence to prove that the defendant No.1 had received rent from Item No.1 property upto 2014 which is sufficient to pay the consideration amount for purchase of suit schedule Item No.2 property excluding the loan taken by him from the bank. Further the plaintiff has not produced any rent agreement or lease agreement pertaining to suit schedule Item No.1 property to prove the amount of rent being received from the said property. The plaintiff has not examined any tenants of the suit schedule Item No.1 property to prove how much amount they have paid as rent to the defendant No.1. There are no sufficient believable evidence to prove that the defendants No.1 and 2 are receiving the rents from suit schedule Item No.2 property. The plaintiff has failed to prove that the entire 55 O.S.No.2776/2021 consideration amount for purchase of suit schedule Item No.1 property was paid by defendants No.1 and 2 out of joint family funds or joint family income derived from the suit schedule Item No.1 property.
44. On the other hand, the defendants No.1 and 2have proved that they are the doctors by profession and they are having sufficient independent income from their medical profession and they have purchase the suit schedule Item No.2 property out of the savings from their profession and by raising loan from the bank. The plaintiff has not disputed fact that the defendants No.1 and 2 were doctors by profession. D.W.1 in the cross-examination has stated that he has joined the service as doctor on 01.03.1985 and retired in the year 2019 as Assistant Professor Orthopedic in Victoria Hospital. When it was suggested to D.W.1 that after the death of his father he was looking after the family as the elder son, D.W.1 has stated that he was giving only financial support and his brothers were looking after the management of joint family. It was suggested to D.W.1 during the course of cross-examination that he by joining his hands with his father has made his brother and sister to reach good stage. It is also suggested to D.W.1 that he gave all help to his father to run the family. By putting the said suggestions, the plaintiff has admitted 56 O.S.No.2776/2021 that the defendant No.1 was having sufficient financial capacity and income and he has also given financial assistance to his father to maintain the family. It was also suggested to D.W.1 that he has helped his father to conduct marriage of his brothers and sister. Hence, it is clear that the defendants No.1 and 2 are having independent source of income from their profession. Even though they have not produced documentary evidence regarding their savings etc, only on the said ground, it cannot be held that they are having no independent source of income for purchase suit schedule Item No.2 property.
45. As it is stated earlier, the suit schedule Item No.2 property was purchased for sale consideration of Rs.1,70,000/-. The defendants No.1 and 2 have obtained loan of Rs.95,20,000/- by mortgaging the suit schedule Item No.2 property to SBI. Further they have also cleared the said loan to the bank. Further the remaining sale consideration amount was paid by defendants No.1 and 2. The plaintiff has failed to adduce any sufficient documentary evidence to prove his contention that the remaining sale consideration amount was paid by defendants No.1 and 2 out of joint family funds. Further he has failed to prove that remaining sale consideration amount in the hands of defendants No.1 and 2 for purchase 57 O.S.No.2776/2021 of suit schedule Item No.2 property is the rent received by defendant No.1 till 2014. Further the plaintiff has failed to prove any sufficient evidence to prove that the bank loan was repaid by the defendant No.1 out of the rent received by him from the suit schedule Item No.1 property. One of the joint owners of the suit schedule Item No.1 property i.e. Manchamma was alive till 2018. It is the contention of the defendant No.1 that Manchamma was receiving the rents till her life time from suit schedule Item No.1 property. The same was utilized by her for maintenance of family. Suit schedule Item No.1 property was purchased in the year 2014. In the Sale Deed, there is no recital regarding payment of the sale consideration amount from the joint family funds. Under these facts and circumstances, the contention of the plaintiff that the defendants No.1 and 2 have purchased the suit schedule Item No.2 property from the rents received by them from suit schedule Item No.1 property and hence, it is joint family property cannot be acceptable one. There are no sufficient materials on record to show that the defendants No.1 and 2 have utilized any joint family funds or rental income of suit schedule Item No.1 property for purchase of suit schedule Item No.2 property. On the other hand, there are sufficient material on record to prove that the defendants No.1 and 2 are doing independent profession as doctors and they are having 58 O.S.No.2776/2021 independent source of income and they have purchased the suit schedule Item No.2 property by obtaining loan from the bank and by paying remaining sale consideration amount from their own independent income. Under these facts and circumstances, I am of the opinion that the Item No.2 of the suit schedule property cannot be considered as joint family property of plaintiff and defendants. The plaintiff has failed to prove his contention that the suit schedule Item No.2 property is joint family property of himself and defendants and it was purchased by defendants No.1 and 2 out of rental income received from Item No.1 property. When the plaintiff has failed to prove that suit schedule Item No.2 property is joint family property, I am of the opinion that the plaintiff will not be entitled to get any share in the suit schedule Item No.2 property.
46. The plaintiff in the present suit has prayed for the relief of partition and separate possession of his 1/ 7th share each in the suit schedule Item No.1 and 2 properties. It is already discussed and held above that the plaintiff has proved that the suit schedule Item No.1 property is the joint family property of himself and defendants and the plaintiff has failed to prove that suit schedule Item No.2 property is the joint family property of himself and defendants. Further the defendants have failed to prove that the plaintiff has 59 O.S.No.2776/2021 gone in adoption to Madamma as per the adoption deed dated 08.07.1985. It is also discussed and held above that the plaintiff is entitled to get 1/ 7th share in the suit schedule Item No.1 property being the son of late Subbashetty and late Manchamma. As such, I am of the opinion that the plaintiff has partly proved Issues No.1 and 2. Accordingly, I answer Issues No.1 and 2 in Partly Affirmative. Since it is held that the plaintiff is entitled to get 1/ 7th share in suit schedule Item No.1 property only and since Issues No.1 and 2 are held in partly affirmative, I am of the opinion that the suit filed by the plaintiff is partly deserves to be decreed. Since the plaintiff is held entitled to get partition only with respect to suit schedule Item No.1 property, I answer Issue No.3 in Partly Affirmative.
47. Issue No.4:- For the discussions made above, I proceed to pass the following:
ORDER The suit filed by the plaintiff under Order VII Rule 1 read with Sec.26 of CPC, is hereby partly decreed.
It is held that the plaintiff is entitled to get 1/ 7th share in the suit schedule Item No.1 property. The claim of the plaintiff for partition with respect to suit schedule Item No.2 property is hereby rejected.60 O.S.No.2776/2021
Having regard to the nature of the suit and having regard to the relationship between the parties, both the parties to the suit are hereby directed to bear their own cost.
Draw preliminary decree accordingly. (Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court on this the 18th day of March, 2024).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 Manjula Devi List of the documents marked for the plaintiff :
Ex.P.1 Original GPA dated 16.02.2023.
Ex.P.2 Family tree affidavit of deceased Subbashetty.
Ex.P.3 Certified copy of sale deed dated 30.03.1994
obtained under RTI Act.
Ex.P.4 Certified Copy of Khatha Extract dated 17.02.2000
obtained under RTI Act.
Ex.P.5 Certified Copy of Khatha Certificate dated
17.02.2000 obtained under RTI Act.
Ex.P.6 Certified copy of Death Certificate of Subbashetty
obtained under RTI Act.
Ex.P.7 Certified copy of sale deed dated 07.05.2014.
Ex.P.8 Certified copy of EC of site No.912 from 01.08.2004
to 11.02.2021.
Ex.P.9 Certified copy of Tippani Sheet issued under RTI Act.
61 O.S.No.2776/2021
Ex.P.10 Certificate copy of Khatha transfer application form issued under RTI Act.
Ex.P.11 Certified copy of the affidavit issued under RTI ACT. Ex.P.12 Certified copy of family tree obtained under RTI Act. Ex.P.13 Endorsement dated 09.04.2021 issued by BBMP. Ex.P.14 Certified copy of death certificate of Manchamma. Ex.P.15 Notary true copy of Aadhar Card of S.Nagendra Kumar. (Original is produced for inspection and returned to party) Ex.P.16 Original SSLC marks card of S.Nagendra Kumar. Ex.P.17 Marriage invitation card of S.Nagendra Kumar. Ex.P.18 Notary true copy of Voter ID card of S.Nagendra Kumar. (Original is produced for inspection and returned to party) Ex.P.19 Notary true copy of Voter ID card of Manjula Devi.
(Original is produced for inspection and returned to party) Ex.P.20 Notary true copy of Bank Pass Book of S.Nagendra Kumar. (Original is produced for inspection and returned to party) Ex.P.21 Medical acceptance card of S.Nagendra Kumar.
Ex.P.22 Notary true copy of Gas Pass Book of Manjula Devi.
(Original is produced for inspection and returned to party) Ex.P.23 Certified copy of order sheet in O.S.No.114/2022. Ex.P.24 Certified copy of plaint in O.S.No.114/2022. Ex.P.25 Original Study Certificate of S.Nagendra Kumar. Ex.P.26 Rural Candidate certificate of S.Nagendra Kumar. Ex.P.27 Certificate dated 13.06.1991 issued by Dayananda Vasati Vidyalaya.
Ex.P.28 Study Certificate dated 13.06.1991 issued by Rural Multipurpose High School.
Ex.P.29 Annexure 'A' issued by Special Tahasildar, Bengaluru South Taluk.
Ex.P.30 Complaint dated 01.07.2021 given by S.Nagendra Kumar to A.R.O. 62 O.S.No.2776/2021 Ex.P.31 Office copy of legal notice dated 11.01.2022. Ex.P.32 Certified copy of FIR in Crime No.174/2020. Ex.P.33 Certified copy of complaint in Crime No.174/2020. Ex.P.34 Certified copy of FIR in Crime No.175/2020 of Girinagar PS. Ex.P.35 Certified copy of complaint in Crime No.175/2020 of Girinagar PS. Ex.P.36 Letter dated 15.05.2000 issued by Indian Telephone Industries Ltd.
Ex.P.37 Character Certificate issued by Javaraiah.s Ex.P.38 to 42 Photographs.
Ex.P.43 Agreement of sale dated 11.10.2021 Ex.P.44 Ration card of Subbashetty.
List of the witnesses examined for the defendants:
D.W.1 Dr.S.Ramachandra D.W.2 Harish D.W.3 Vijaya S.
List of the documents marked for the defendants:
Ex.D.1 Pan card Ex.D.2 Certified copy of plaint in O.S.No.4804/2020 Ex.D.3 Certified copy of order sheet in O.S.No.4804/2020 Ex.D.4 Certified copy of I.A. in O.S.No.4804/2020 Ex.D.5 Certified copy of order copy in O.S.No.4804/2020 Ex.D.6 Certified copy of plaint in O.S.No.6517/2020 Ex.D.7 Certified copy of I.A. in O.S.No.6517/2020 Ex.D.8 Certified copy of order sheet in O.S.No.6517/2020 Ex.D.9 Certificate of registered pharmacist 63 O.S.No.2776/2021 Ex.D.10 Deed of Adoption dated 08.07.1985 Ex.D.11 Fir in Cr.No.174/20 Ex.D.12 Complaint Ex.D.13 Online Certified copy of sale deed dated 07.05.2014.
Ex.D.14 Endorsement issued by BBMP dated 21.08.2023. Ex.D.15 Property tax receipt for the year 2022-23. Ex.D.16 Property tax receipt for the year 2023-24. Ex.D.17 encumbrance certificate of Site No.912. Ex.D.18 Memorandum relating to deposit of title deed. Ex.D.19 Certified copy of sanction communication letter dated 06.05.2014 Ex.D.20 Closure letter dated 13.12.2019.
Ex.D.21 Letter dated 24.12.2019.
Ex.D.22 Certified copy of Re-conveyance deed dated 05.08.2023 Ex.D.23 Notary true copy of my SSLC marks card. Ex.D.24 Notary true copy of my 2nd PUC marks card. Ex.D.25 Notary true copy of Certificate of registration.
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bengaluru.
64 O.S.No.2776/2021