Bangalore District Court
Thayamma vs Akyamma @ Ambuja on 10 January, 2025
KABC0A0000672021
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL, BENGALURU.
(CCH-74)
P r e s e n t:
Smt. Anitha N.P., B.A.L., L.L.M.,
LXXIII Addl.City Civil & Sessions Judge, Bengaluru
Dated this the 10th day of January, 2025.
O.S. No.25035/2021
Plaintiffs:- 1. Smt. Thayamma,
W/o. Late. Nagaraj and
D/o: Late Biddaiah,
Aged about 61 years,
R/at: Maheshwari Nagar,
Eeranna Layout, Mahadevapura
Bengaluru-48.
1(a) Sri. Ramesh Babu,
Aged about 45 years,
S/o: Late Nagaraju and
Late Thayamma,
2
O.S. No.25035/2021
1(b) Smt. Roopa,
Aged about 38 years,
D/o:Late Nagaraj and Late Thayamma,
Both are residing at Maheshwari Nagar,
Eeranna Layout, Mahadevapura
Bengaluru-48.
2. Smt. Akkayyamma,
Aged about 58 years,
W/o: Sri. Nagaraj and
D/o: Late Biddaiah,
R/at: No.65, near Harish Provision Store,
Opposite to DSR Elite Village,
Mahadevapura, Bangalore-48.
(Rep by Sri. S.M.Raju - Advocate)
-Vs-
Defendants:- 1.Smt. Akyamma @ Ambuja,
W/o: Sri. Gopal Reddy and
D/o: Late Biddaiah,
Aged about 54 years.
R/at Maheshwari Nagar,
Eeranna Layout, Mahadevapura
Bengaluru-48.
2. Smt. Shakunthala,
W/o. Late B.Anandakumar,
Aged about 45 years,
3
O.S. No.25035/2021
3. Smt. Mamatha A.,
D/o. Late. B.Anandakumar and
W/o: Sri. Sunil Kumar
Aged about 24 years.
4. Sri. A.Yeshavanth,
S/o: Late B.Anandakumar,
Aged about 22 years.
Sl. Nos. 2 to 4 are
residing at Chikkanna Layout,
Maheshwari Nagar,
Mahadevapura post,
Bengaluru-48.
5. Smt. Shilpa,
Aged about 33 years,
W/o: late B.Narayanappa @ Narayana
Reddy,
6. Kumari Malvika,
Aged about 15 years,
D/o: late B.Narayanappa @ Narayana
Reddy,
Being minor by age and represented
her natural mother and guardian
Smt. Shilpa the defendant No.5
herein and Sl. Nos. 5 & 6 are
residing at Chikkanna Layout,
Maheshwari Nagar,
Mahadevapura post, Bengaluru-48.
4
O.S. No.25035/2021
7.Smt. Shakunthala R.,
Aged about 45 years,
W/o: Sri. M.R.Manjunath,
R/at: No.22, near Ganesha Temple,
Mahadevapura Village and post,
Bangalore-48.
(For D1 S.S.K., for D2 to 6 K.V.R.,
for D7 V.N.R.,- Adv.)
Date of institution of the suit : 04.01.2021
Nature of the suit (Suit for pro-
note,suit for declaration and : Declaration and Partition
injunction,suit for injunction,
etc)
Date of commencement of : 21.07.2023
recording of evidence
Date on which the Judgment : 10.01.2025
was pronounced
Total duration Year/s Month/s Days
04 00 06
Digitally signed by
ANITHA
ANITHA NANJANAGUDU
NANJANAGUDU PARASHIVAMURTHY
PARASHIVAMURTHY
Date: 2025.01.15
17:56:09 +0530
(Anitha N.P.)
LXXIII Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH-74)
5
O.S. No.25035/2021
J U D G M E N T
The plaintiffs have filed this suit as against defendants No.1 to 7 seeking the relief of partition, separate possession, for declaration that the sale deed dated 30.05.2018 executed by defendant No.2 to 6 in favour defendant No.7 is not binding on plaintiffs and for permanent injunction.
2. Brief facts of the plaint averments are as under:-
That one Biddaiah was having wife Krishnamma and the plaintiffs 1 & 2 and defendant No.1 are 3 daughters and husband of defendant No.2 and 5 by name Late Anandakumar & late B.Narayanappa @ Narayana Reddy are 2 sons of Biddaiah. The defendant No.2 and 5 are daughter-in-laws of Biddaiah, defendant No.3, 4, 6 are grand children of Biddaiah. The said Biddaiah had 2 younger brothers by name Papaiah and Ramaiah and there was oral partition between said Biddaiah and his 2 6 O.S. No.25035/2021 younger brothers and the same was reduced into writing on 6.05.1972. In the said partition Biddaiah was allotted with following properties.
a) Mangalore tiles roofed house measuring East to West 13 feet and North to South 40½ feet and situated in the Gramatana of Mahadevapura Village, K.R.Pura Hobli, Bangalore East Taluku, Bangalore.
b) House back yard area (Hithilu) measuring East to West 52½ feet and North to South 24 feet and situated in the Gramatana of Mahadevapura Village, K.R.Pura Hobli, Bangalore East Taluku, Bangalore.
c)Landed property measuring 1 acre 18 guntas and 20 guntas in 51/1 and 51/2 of Mahadevapura Village, K.R.Pura Hobli, Bangalore East Taluku, Bangalore. 7
O.S. No.25035/2021
d)Landed property measuring 02 guntas 197/3 of Mahadevapura Village, K.R.Pura Hobli, Bangalore East Taluku, Bangalore.
e) Landed property measuring 08 guntas in 125 of Mahadevapura Village, K.R.Pura Hobli, Bangalore East Taluku, Bangalore.
3. It is the further case of the plaintiffs that said Biddaiah died intestate in the year 1997. His son B.Anandkumar died on 02.07.2007 and B.Narayanappa @ Narayanareddy died on 27.05.2007. After the death of Biddaiah, the plaintiffs as well as husband of defendant No.2 & 5 have jointly sold land measuring 8 guntas in Sy.No.125 and major portion in Sy.No.51/1 and 51/2 and retained sites bearing No.19, 20, 1, 3, 4, 5 and land of 12 guntas.
4. It is the further case of the plaintiffs that after the selling of above properties there was registered partition amongst plaintiffs and their brothers, mother and defendant No.1 on 8 O.S. No.25035/2021 09.10.2006 excluding the 2 immovable properties described in the plaint schedule. There was understanding that the suit properties shall be partitioned equally amongst all the children of deceased Biddaiah only after the death of Biddaiah's wife Smt. Krishnamma.
5. It is the further case of the plaintiffs that after the above said partition the plaintiffs are in joint possession and enjoyment of the suit properties and they are having equal right. Now the brothers of the plaintiff as well as mother of the plaintiffs are no more and they died intestate. As the husband of defendant No.2 B.Anandkumar was elder member of the family he was managing the suit properties and after his death the defendant No.2 being his wife is managing the suit properties and the plaintiffs have also continued joint possession. The plaintiffs and defendant No.1 to 6 are members of Hindu Joint 9 O.S. No.25035/2021 Family and they are joint owners of suit property as the same is their joint family property. However, the defendant No.2 to 6 colluding with each other are trying to diminish the corpus of the joint estate. The plaintiffs have demanded for partition of their share with defendant No.2 and 5. However, they have not considered demand of plaintiffs and informed that they have already sold the suit schedule properties in favour of defendant No.7. Thereafter the plaintiff came to know about said sale deed. The defendant No.2 to 6 had no right over the suit properties to sell the same. The said sale deed is not binding on the share of plaintiffs. Accordingly, they have filed this suit and prays to decree the suit.
6. After receiving the suit summons the defendant No.1 to 7 appeared before the court through their respective counsels. The defendant No.1 not filed written statement. The defendant 10 O.S. No.25035/2021 No.2 to 6 have filed their written statement and defendant No.7 filed her separate written statement.
7. Brief facts of the written statement of defendant No.2 to 6 is as follows:
The defendant No. 2 to 6 in their written statement have admitted the relationship of themselves and plaintiffs and also the defendant No.1. They also admitted the partition between Biddaiah and his brothers on 16.05.1972 and also the allotment of properties in favour of Biddaiah. The defendants also admitted the registered partition between plaintiffs and defendant No.2 and 5 on 09.10.2006. However according to these defendants during the life time of Biddaiah himself he considering that the extent of property is very small and as the brother of Biddaiah by name Ramaiah was owning land adjacent to the suit schedule property and as said Ramaiah shown interest to purchase the 11 O.S. No.25035/2021 suit property, said Biddaiah and his sons have accepted consideration for giving up their right in favour of Ramaiah. The possession was also delivered in favour of said Ramaiah. Accordingly, the said properties were not included in the family partition held between the joint family members. Even during her life time the mother of plaintiff by name Smt. Krishnamma never possessed suit properties. It is the family members of defendant No.7 who are in possession of suit property. Under sale deed dated 30.05.2018 the defendant No.7 got the suit properties. The plaintiffs knows all these facts. During the life time of Biddaiah itself he lost title over the suit property. Accordingly the defendants have executed sale deed in the name of 7th defendant. The defendants have denied the entire other averments of plaint and contended that the defendant No.7 is in 12 O.S. No.25035/2021 possession of suit properties. Accordingly, they prays to dismiss the suit.
8. Brief facts of the written statement of defendant No.7.
The defendant No.7 in her written statement has not denied the relationship of plaintiffs and defendant No.1 to 6. However, she denied the other averments of the plaint and she has contended that during the life time of Biddaiah itself. Biddaiah and his sons by accepting the sale consideration have left the suit schedule properties in the name of husband of defendant No.7 and they delivered possession in favour of defendant No.7. Accordingly, the suit properties were not the subject matter of the family partition. The family members of the plaintiffs have accordingly sold the property possessed by 7 th defendant and her family vide registered sale deed dated 30.05.2018. The plaintiffs knows the said fact. The plaintiffs 13 O.S. No.25035/2021 colluding with defendant No.1 to 6 so as to harass the defendant No.7 have filed this suit. Accordingly, she prays to dismiss the suit with costs.
9. Based on the pleadings, my Predecessor-in-office has framed following issues.
I S S U E S
1) Whether plaintiffs prove their Joint Possession of the suit schedule property along with defendant No.1 to 6?
2) Whether defendant No.7 proves that she is bonafide purchaser for value of the suit schedule property?
3) Whether plaintiffs are proves that suit property is liable for partition?
4) Whether the plaintiff entitle for relief sought in the suit?
4) What order or decree?
14
O.S. No.25035/2021
10. That to prove the case of plaintiffs, plaintiff 1(b) by name Smt. Roopa herself got examined as P.W.1, got marked Ex.P.1 to P.4 documents. On the other hand, the Power of Attorney holder of defendant No.7 by name Manjunath got examined himself as DW.1 and got marked one document as per Ex.D1.
11. Heard arguments of both sides. Perused the pleadings, evidence, documents and available materials on record.
12. My answer to the above issues are as under:-
Issue No.1 :- In the affirmative Issue No.2 :- In the Negative Issue No.3 :- In the affirmative Issue No.4 :- As per final Order for the following R E A S O N S
13. ISSUE No.1 & 2:-: These issues are inter-linked with each other, I proceed to discuss together, in order to avoid repetition of facts and evidence.
15
O.S. No.25035/2021 The plaintiffs so as to establish their case have examined plaintiff 1(b) by name Smt. Roopa as PW.1, she filed her chief examination affidavit reiterating the plaint averments. She has produced 4 documents as per Ex.P1 to 4. Ex.P1 is the certified copy of partition deed dated 9.10.2006, Ex.P2 is the self declared genealogical tree, Ex.P3 is the certified copy of sale deed dated 30.05.2018 and Ex.P4 is the encumbrance certificate.
14. On the contrary the defendants No.2 to 6 have not lead evidence. The Power of Attorney holder of defendant No.7 by name Manjunath got examined himself as DW.1 and he filed his chief examination affidavit reiterating the contentions of the written statement. He has produced one document as per Ex.D1 i.e., the GPA executed by defendant No.7.
16
O.S. No.25035/2021
15. During the course of cross-examination PW.1 deposed that she knows Eranna and he was having 2 daughters and 3 sons by name Biddaiah, Ramaiah and Papaiah. On 16.05.1972 there was partition between the children of Eranna. She pleaded her ignorance in respect of purchase of property No.76 by Ramaiah from Biddaiah. She denied that the family of Ramaiah is now in possession of said property. She denied that as the said property was very small in extent considering that it cannot be partitioned and enjoy the said property was left to Ramaiah. She admitted that OS.No.8447/2013 is pending between children of Ramaiah and this Pw.1 for the relief of partition. She denied that in view of pendency of said suit they have filed this false suit against the defendant No.7. Ex.P3 is signed by Ramesh Babu and he is her brother. 17
O.S. No.25035/2021
16. On perusal of the cross-examination of DW.1 he deposed that his father as well as father of plaintiffs are brothers. In the year 1972 there was partition between Biddaiah, Ramaiah and his brothers. Excluding the suit property in respect of other properties the khatha were also transferred. According to this DW.1 in the year 1972 his father and mother have give amount to the suit property to Biddaiah and since then his father was in possession. However, there is no document to show that it was sold to his father in the year 1972. He knows the recitals of Ex.P3. He admits recitals of Ex.P3(a). He admits that Biddiah was having 3 daughters. In the Ex.P3 there is no recitals in respect of partition held in the year 2006. He denied that plaintiffs are having legitimate share in the suit property.
18
O.S. No.25035/2021
17. In the case on hand admittedly the plaintiff No.1 and 2 as well as defendant No.1 are the 3 daughters and the husband of defendant No.2 by name B.Anandkumar and husband of defendant No.5 by name B.Narayana @ Narayanareddy are the children of Biddaiah. Admittedly the said Biddaiah got 5 properties in the family partition held on 16.05.1972. According to plaintiffs during the life time of their father himself his father and his two children along with plaintiffs have sold 8 guntas in Sy. No.125, major portion in Sy. No.51/1 and 51/2 and retained site No.19, 20, 1, 3, 4 and
5. According to plaintiffs themselves and their brothers B. Anandkumar and B. Narayanppa have entered into registered partition deed in respect of their family properties excluding the suit schedule properties and there was understanding between them that the suit schedule properties shall be 19 O.S. No.25035/2021 partitioned equally amongst to children of Biddaiah after the death of the wife of Biddaiah.
18. In this regard it is necessary to go through Ex.P1. Under Ex.P1 A' schedule property was allotted to plaintiff No.1, B schedule property was allotted to plaintiff No.2, C schedule property was allotted to defendant No.1, D schedule property was allotted to joint share of Krishnamma, B.Anandkumar and B.Naraynappa @ Narayanareddy. On perusal of the said partition deed the suit schedule property item No.1 & 2 are not included in the said partition.
19. It is also not in dispute that the suit properties are not subject matter of partition deed Ex.P1. However, the argument of the plaintiff counsel is the suit properties are not included in the said partition and it was continued in the joint possession of plaintiff and defendants. There was understanding 20 O.S. No.25035/2021 that after the death of Krishnamma wife of Biddaiah to suit properties to be divided equally amongst the children of Biddaiah.
20. On the contrary the counsel for the defendant argued that during the life time of Biddiah itself he sold the suit property along with his sons to Ramaiah and they received the sale consideration also and thereby the said Biddaiah delivered the possession of suit property to the said Ramaiah and his family. Considering the same the defendant No.2 to 6 have executed sale deed as per Ex.P3 on 30.05.2018 in favour of defendant No.7.
21. It is pertinent to note that except oral evidence that the deceased Biddaiah has sold suit schedule properties to Ramaiah by receiving sale consideration no document as such is produced to prove the said sale by deceased Biddaiah and his 21 O.S. No.25035/2021 sons. Admittedly, the plaint schedule item No.1 & 2 properties are immovable properties and they are situated withing the jurisdiction of Mahadevapura Village KR Puram Hobli Bangalore East Taluk. Since the property is situated within the limits of Bangalore City certainly the value of the property will be more than Rs.100/- even in the year 1972. As per sec.17 of Indian Registration Act the sale deed requires compulsory registration. Sec. 17 of Indian Registration Act is extracted below for ready reference:
Section 17.Documents of which registration is compulsory.
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of 22 O.S. No.25035/2021 the value of one hundred rupees and upwards, to or in immovable property......
22. Hence, if there was conveyance of suit schedule property to Ramaiah by this Biddaiah and his sons the same shall be through only registered document. However, no such document to show that the suit schedule property was conveyed to Ramaiah or to defendant No.7 by the Biddaiah and his sons is produced.
23. It is necessary to note that the counsel of defendant No.7 has relied upon Judgment reported in 2004 (3) ALL MR 660 of the Hon'ble High Court of Judicature at Bombay (Nagpur Bench) Wherein it is held as follows:
Hindu Law - Joint Family property - Partition - Co- parcener can bring suit for partition of whole property- Partial partition can be sought only in exceptional circumstances - Suit for partial partition not covered by exception - Suit is not maintainable.23
O.S. No.25035/2021
24. The counsel for defendant No.7 also relied on Judgment of Hon'ble High Court of Karnataka in RFA No.842/2006 dated 22.12.2020 between Karegowda dead by Lrs and others Vs. Gururaja and others) wherein at para No.10 the Hon'ble High Court of Karnataka held as follows:
"It is well settled in law that a suit for partial partition is not maintainable".
25. In the case on hand on perusal of the entire written statement of defendant No.2 to 6 and 7 no where these defendants have taken contention that the suit is not maintainable for non-inclusion of all the properties liable for partition. That apart the defendant No.7 or defendant No.2 to 6 nowhere pleaded what are all the properties still available for partition between the members of joint family of plaintiff and defendant No.2 to 6. It is necessary to note that it is the 24 O.S. No.25035/2021 specific case of the plaintiff that already a registered partition as per Ex.P1 was entered into between plaintiffs and defendant No.1, husband of defendant No.2 and defendant No.5. Hence, the defendant No.7 has not placed any evidence to show that there are still many more properties liable for partition between to joint family members of the family plaintiff. Hence, with due respect to the principles laid down in the above Judgments the same are not applicable to the case on hand and the same are not helpful to the defendants.
26. The plaintiffs have established that the suit schedule properties are not partitioned among the plaintiffs and defendant No.1 to 6.
27. Admittedly, the Ex.P1 partition deed in respect of other properties of the joint family was held on 09.10.2006. However, the defendant No.2 to 6 on 30.05.2018 have executed 25 O.S. No.25035/2021 sale deed in respect of suit schedule properties in favour of defendant No.7 though these plaintiffs are also having right in respect of suit schedule properties. The plaintiffs have not signed said sale deed and the plaintiffs are not parties to the said sale deed Ex.P3. It is executed only by the defendant No.2 to 6 in favour of defendant No.7. Since the plaintiffs are also having right in the suit schedule properties and as the Ex.P3 sale deed is executed without considering the rights of plaintiffs over the suit schedule property and as the plaintiffs are having legitimate share in the suit schedule properties it is to be held that the said sale deed is not binding to the extent of share of the plaintiffs. The contentions of the defendant No.7 that she is a bonafide purchaser cannot be accepted as because the plaintiffs and defendants are not strangers. The defendant No.7 is none other than the daughter-in-law of Ramaiah who is the 26 O.S. No.25035/2021 younger brother of Biddaiah. Hence, the defendant No.7 had every opportunity to get the sale deed even from the plaintiffs if she had really interested to purchase the suit schedule property. Hence, at no stretch of imagination this defendant No.7 can be called as bonafide purchaser of suit schedule property for value. Accordingly, the plaintiffs are entitled for their legitimate share in the suit schedule property along with defendant No.1 to 6. Accordingly, I answered issue No.1 in the affirmative and issue No.2 in the negative.
28. Issue No.3: As the plaintiffs proved that they are children of Biddaiah and the sale deed dated 30.05.2018 is not binding on their share the plaintiffs are entitled for their legitimate share in the suit schedule properties. The deceased Biddaiah and his wife Krishnamma were having 5 children and all the said 5 children i.e., the plaintiff No.1 and 2, defendant 27 O.S. No.25035/2021 No.1, defendant No.2 to 4 together, defendant No.5 & 6 together are entitled for 1/5th share each in the suit schedule properties. As the plaintiffs No.1 & 2 are 2 daughters they are entitled to 1/5th share each in the suit schedule properties. As the defendant No.2 to 6 have executed sale deed in respect of suit schedule properties, the defendant No.7 can seek allotment of the share of defendant No.2 to 6 towards her share in the final decree proceedings. Accordingly, I answered issue No.3 in the affirmative.
29. Issue No.4:- In view of the reasoning given above, I proceed to pass the following:-
O R D E R The suit filed by the plaintiffs as against the defendants is hereby decreed.
The plaintiffs are entitled to 1/5th share each in the suit schedule properties by metes 28 O.S. No.25035/2021 and bounds. Their share may be worked out during the final decree proceedings.
It is declared that the sale deed dated
30.05.2018 executed by defendant No.2 to 6 in favour of defendant No.7 is not binding on the share of plaintiffs.
Office to draw preliminary decree
accordingly.
Parties to bear their own costs.
(Dictated to the Stenographer, transcribed and computerized by her and after corrections pronounced by me in the open court on this the 10th day of January, 2025) Digitally signed by ANITHA ANITHA NANJANAGUDU NANJANAGUDU PARASHIVAMURTHY PARASHIVAMURTHY Date: 2025.01.15 17:56:35 +0530 (Anitha N.P.) LXXIII Addl. CC & SJ, M.H.Unit, Bengaluru. (CCH-74) S C H E D U L E All that part and parcel of the immovable vacant property bearing katha No.76, situated in the Gramatana of Mahadevapura Village, K.R.Pura Hobli, Bangalore East Taluk, now comes under the administrative jurisdiction of BBMP Ward 29 O.S. No.25035/2021 No.81, measuring east to west 13 feet and north to south 40 ½ feet in all measuring 526 ½ sq., fts., and bounded on the:
east by: Passage and then property of Ramaiah west by: Properties of Papanna and Papaiah north by: Private Property south by: Road.
All that part and parcel of the immovable vacant property bearing katha No.76, situated in the Gramatana of Mahadevapura Village, K.R.Pura Hobli, Bangalore East Taluk, now comes under the administrative jurisdiction of BBMP Ward No.81, measuring east to west 52½ feet and north to south 24 feet in all measuring 1260 sq., fts., and bounded on the:
east by: Property of Ramaiah west by: Property of Patel Narasimhaiah
north by: Properties of Muniswamappa and Papanna south by: Property of Papaiah.
A N N E X U R E
1. List of witnesses examined for the plaintiffs side:-
P.W.1 : Smt. Roopa
2. List of documents exhibited for the plaintiff's side:-
Ex.P.1 : Certified copy of partition deed dated 9.10.2006 30 O.S. No.25035/2021 Ex.P.2 : Self declared genealogical tree Ex.P.3 : Certified copy of sale deed dated 30.05.2018 Ex.P.4 : Original will or partition deed dated 19.2.204 Ex.P.4 : Encumbrance certificate
3. List of witness examined for the defendants side:-
D.W.1 : Manjunath
4. List of documents exhibited for defendants side:-
Ex.D.1 : GPA Digitally signed by ANITHA ANITHA NANJANAGUDU NANJANAGUDU PARASHIVAMURTHY PARASHIVAMURTHY Date: 2025.01.15 17:56:43 +0530 (Anitha N.P.) LXXIII Addl. CC & SJ, M.H.Unit, Bengaluru. (CCH-74)