Bangalore District Court
Sri. K. Mani vs Smt. R. Sulochana on 26 June, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL
JUDGE BANGALORE CITY (CCH.NO.6)
This 26th day of June, 2015
PRESENT: Shri S.SRIDHARA,
B.Sc., LL.B.,
XXIV Addl. City Civil
and Sessions Judge, Bangalore.
O.S.NO.5049/2011
PLAINTIFFS: 1. Sri. K. Mani,
Aged about 61 years,
S/o Late Kuppuswmy Chettiar,
2. Smt. K. Janaki,
Aged about 56 years,
W/o Sri. K.Mani.
(By Sri.R.S., Advocate).
Vs.
DEFENDANTS: 1. Smt. R. Sulochana,
W/o late K. Ramaswamy
Aged about 52 years.
2. Sri. R. Srinivas,
S/o Late K. Ramaswamy,
Aged about 29 years.
3. Sri. R. Sabari Santhosh,
S/o Late K. Ramaswamy,
Aged about 27 years,
Defendants 1 to 3 are
R/at No.3, Ground Floor,
Mavalli Tank Bund Road,
-2- O.S.5049/2011
Journalists Colony,
Banglore - 560 002.
4. Smt. Kunguma Prabha,
D/o Late K.Ramaswamy,
Aged about 33 years,
No.24, 2nd Cross,
Sudhamanagar,
Lalbagh Fort Road,
Bangalore - 560 002.
5. Smt. Rathimala,
D/o Late K.Ramaswamy,
Aged about 31 years,
No.4/106, 3rd Shivanna
Steet, Gugai, Salem-6.
6. Sri. K.Babu,
Aged about 56 years,
S/o Late Kuppuswamy Chettiar,
No.3, Ground Floor,
Mavalli Tank Bund Road,
Journalists Colony,
Bangalore - 560 002.
(By Sri. P.S., Advocate for D1 to 3
D 4 to 6: Exparte.)
Date of institution of the suit: 15.07.2011
Nature of the suit: Partition suit
Date of commencement of 21.04.2014
recording of evidence:
Date on which Judgment was 26.06.2015
pronounced:
Duration Days Months Years
11 11 03
-3- O.S.5049/2011
JUDGMENT
The instant suit filed by the plaintiffs against the defendants is one for partition directing the suit schedule properties be partitioned by metes and bounds by granting 1/4th share to each of the plaintiffs in the suit schedule properties and put them in separate possession of their respective shares.
2. a) Plaintiffs have stated that plaintiffs and one K.Ramaswamy, who is the late husband of 1st defendant and father of defendants 2 to 5 along with the 6th defendant jointly, purchased the suit schedule properties, which are morefully shown in the plaint schedule. The said property was purchased from one Smt.Halimunnisa Begum wife of Haji Mohammed Khan Khaleel as per the registered sale deed dated 1.7.1988 as per the particulars shown in para-2 of the plaint. Plaintiffs also stated that the said sale consideration was paid by each one of the joint purchasers equally for acquisition of the suit schedule properties.
-4- O.S.5049/2011
b) According to the plaintiffs, subsequent to purchase of the suit schedule properties, the khatha of the schedule property has been duly mutated in favour of joint purchasers. Plaintiffs being the joint owners of the properties are paying annual municipal taxes to BBMP, Bangalore.
c) They also further stated that subsequently a deed of rectification was also executed by Smt.Halimunnisa Begum on 3.10.1991 by rectifying the municipal numbers and boundaries of the suit schedule properties, which is also produced. Plaintiffs also produced the original sale deed dated 1.7.1988 and Rectification deed dated 3.10.1991, khatha extract and tax paid receipts.
d) According to the plaintiffs, one of the joint owners of the suit schedule properties by name K.Ramaswamy passed away on 16.12.1999 leaving behind him defendants 1 to 5 as his legal heirs and successors to his undivided share and interest in the schedule properties. According to the plaintiffs, the
-5- O.S.5049/2011 share of each plaintiff is 1/4th and the plaintiffs together are entitled for half share in the suit schedule properties. Being joint owners of the suit schedule properties, along with other joint owners namely K.Ramaswamy represented by his legal heirs and successors i.e. defendants 1 to 5 and 6th defendant, plaintiffs are in joint possession of their undivided share in the schedule properties. They further stated that they expressed their desire and decision to have suit schedule properties partitioned by metes and bounds and to have their 1/4th share each to the defendants and also demanded for partition of the suit schedule properties by metes and bounds. The defendants are not inclined to accede the demand of the plaintiffs for partition in the schedule properties. The legal notice was issued on 17.10.2011 calling upon the defendants to effect partition of the suit schedule properties by metes and bounds and put the plaintiffs in possession of their separate share. The legal notice was duly served on defendants 1 to 3, 5 and 6 and the legal notice issued
-6- O.S.5049/2011 to the 4th defendant is returned. However the notice issued to 4th defendant under certificate of posting has been duly served. They also pleaded cause of action and praying this Court to decree the suit as prayed for.
3. The plaint schedule reads as follows:
All that piece and parcel of the properties bearing Municipal Nos: 176, 177 & 178 (Old Nos :
126, 126/1 & 126/2 and house No:1, New Numbers H-101, H-102, H-103 & H-104, situated at Nawab Hyder Ali Khan Road, Kalasipalyam Main Road, Corporation ward No.48, PID No.48-93-176, 48-93- 177 and 48-93-178, Bangalore - 560 002, along with its building which is measuring East to West 27 feet and North to South 27 feet, totally measuring 729 Sq. Ft. and which re commonly bounded on the:-
East by: M.K.S. Hyder Saheb House;
West by: Kalasipalyam Main Road namely
Nawab Huder Ali Khan Road;
North by: M.K.S. Hyder Saheb House and;
South by: Durgamma Temple Street.
4. Inspite of service of summons on defendants 4 to 6, they remained absent and placed exparte on 27.9.2012, 7.1.2012.
5. a) Defendants 1 to 3 filed written statement denying all the plaint averments and further
-7- O.S.5049/2011 contended that the plaint averment that K.Ramaswamy is the husband of the 1st defendant and father of the defendants 2 to 5 is true. The plaint averment that late K.Ramaswamy, the plaintiffs and 6th defendant jointly purchased the properties shown in the plaint schedule. The plaint averment that the sale consideration was paid by each one of the joint purchasers equally for acquisition of the suit schedule properties is absolutely false. The 2nd plaintiff is the wife of the 1st plaintiff and she did not contribute any amount towards acquisition of the suit schedule properties. According to defendants 1 to 3, the 1st plaintiff, late K.Ramaswamy and 6th defendant constituted Hindu Undivided Family. The 1st plaintiff, late K.Ramaswamy and 6th defendant are the joint family members.
b) According to defendants 1 to 3, at the time of purchase of the suit properties, the joint family funds has been utilized for the purpose of purchasing the suit properties. At the instance of the well wishers,
-8- O.S.5049/2011 the name of the 2nd plaintiff has also been joined in the sale deed, since there was advise to the effect that not to have three persons in the sale deed as it was inauspicious. Except the said reason, there is no other reason whatsoever or any contribution from the 2nd plaintiff towards purchase of the suit schedule properties etc. Ever since from the date of purchase of the suit property, the family members have been enjoying the suit properties as joint family properties. Subsequent to purchase of the suit properties, khatha is also made out in the name of all the purchasers shown in the sale deed is also true and correct. The khatha obviously will be made in the name of the owners shown in the sale deed. The plaint averment that plaintiffs are the joint owners of the suit schedule properties is absolutely false. It is also false to state that annual municipal taxes are being paid by the plaintiffs. Defendants 1 to 3 and the 1st plaintiff have been paying taxes in respect of the suit properties from and out of the funds of the joint family etc. The
-9- O.S.5049/2011 1st plaintiff, who is the custodian of all the original documents, has produced the same before the Court.
c) The plaint averment that the husband of the 1st defendant expired on 16.12.1999 is true and correct. The plaint averments in para-5 of the plaint are admitted by defendants 1 to 3. The plaint averment that plaintiffs have 1/4th share each and plaintiffs together are entitled for half share in the suit schedule properties is also false. The 2nd plaintiff does not have right, title or interest in the suit schedule properties.
d) It is the specific case of the defendants 1 to 3 that the 1st plaintiff, defendants 1 to 5 jointly and 6th defendant have 1/3rd share in the suit schedule properties being joint family members. The plaint averment that plaintiffs are joint owners of the suit property is also false. Their case that plaintiffs are in joint possession of their undivided share in the suit schedule properties is also false.
- 10 - O.S.5049/2011
e) The plaint averment that the plaintiffs
demanded for partition and separate possession of the suit property is also false. The plaintiff No.1 never sought for partition from the defendants. The 1st plaintiff has no right to seek for partial partition excluding the other properties belongs to the joint family. Issuance of legal notice by the plaintiffs on 17.11.2010 to the defendants calling upon them to effect partition is not true and correct. The plaint averment that inspite of receiving the legal notice, defendants are failed to partition the suit properties does not arise, since there is no right to the plaintiffs 1 and 2 jointly to claim half share in the suit properties etc. The 1st plaintiff is alone entitled for 1/3rd share along with the defendants.
f) The suit is not properly valued. The plaintiffs are not in possession of the suit properties. Defendants are in exclusive possession and enjoyment of the same. Plaintiffs ought to have valued the suit Under Section 35(1) of Karnataka
- 11 - O.S.5049/2011 Court Fees and Suit Valuation Act. That apart as the title of the 2nd plaintiff is also denied, Court fee has to be paid on the market value of the property.
g) According to defendants 1 to 3, the 1st plaintiff, K.Ramaswamy and 6th defendant alone constituted a Hindu Undivided Joint Family. One Kuppuswamy Chettiar is the father of the 1st plaintiff, late K.Ramaswamy and the 6th defendant. He was doing tyre business at Bangalore. The sons of late Kuppuswamy Chettiar continued the business as joint family members after the death of their father Kuppuswamy Chettiar. He also purchased the property bearing No.3, Mavalli Tank Bund Road, Journalist Colony, Bangalore. The 1st plaintiff, defendants 1 to 3 and the 6th defendant are in occupation of various portions of the said properties.
h) Defendants 1 to 3 also stated that the three sons of Kuppuswamy Chettiar have been enjoying the joint family property being in possession and enjoyment of the same and defendants also carrying
- 12 - O.S.5049/2011 on the business in the plaint schedule property. After the death of Kuppuswamy Chettiar, out of the funds left behind by him, the suit schedule properties have been purchased. The suit properties are the joint family properties. The plaintiffs' suit without seeking for partition in the property bearing No.3, Mavalli Tank Bund Road is not maintainable. The daughters of Kuppusamy Chettiar are not made as parties in the suit. Therefore, the suit is bad for non-joinder of proper and necessary parties to the suit and pray for dismissal of the suit with costs.
6. Based on the above pleadings of the parties, my learned predecessor framed the following issues:
1. Do the plaintiffs prove that they and late K.Ramaswamy along with defendant No.6 had jointly purchased the suit schedule property under the registered Sale Deed dated 01.07.1988 from Smt.Halimunnisa Begum w/o Haji Mohammed Khan Khaleel?
2. Do they further prove that each of the plaintiff is entitled for 1/4th share, defendants 1 to 5 together are entitled for 1/4th share as contended by them?
- 13 - O.S.5049/2011
3. Whether the plaintiffs are entitled for partition and separate possession of their 1/4th share each in the suit schedule property as prayed by metes and bounds?
4. Whether the suit of the plaintiffs is bad for non-joinder of necessary parties?
5. What order or decree?
7. In support of the case of the plaintiffs, the 1st plaintiff is examined as PW.1 and got marked Exs.P.1 to P.22 and closed the evidence of the plaintiffs. The 2nd defendant is examined as DW.1 and got marked Ex.D1 and D.1(a) and closed their evidence.
8. Though the 6th defendant appeared before the Court on 4.2.2015, 8.6.2015, he has not adduced any evidence.
9. Heard the learned counsel for the plaintiffs. On 8.6.2015, the 6th defendant appeared in person and submits that he has no argument. Inspite of giving sufficient time and repeated opportunities, defendants 1 to 3 not addressed their argument. Though the defendants 1 to 3 directed to file written arguments if
- 14 - O.S.5049/2011 any within three days, they failed to file written arguments and accordingly case is posted for Judgment.
10. My findings on the above issues are:
Issue No.1: Partly Affirmative.
Issue No.2: partly Affirmative.
Issue No.3: Partly Affirmative.
Issue No.4: Negative.
Issue No.5: As per the final order
for the following;
REASONS
11. Issue Nos.1 to 3: Since all these three
issues are interlinked with each other and require common discussion of facts, they are taken together for discussion to avoid repetition of facts.
12. When the plaintiffs plead that the plaintiffs, late K.Ramaswamy along with the 6th defendant jointly purchased the suit properties as per the sale deed dated 1.7.1988, plaintiffs have to prove issue No.1.
13. Similarly when the plaintiffs plead that each of the plaintiff is entitled for 1/4th share and defendants
- 15 - O.S.5049/2011 2 to 5 together are entitled for 1/4th share and the 6th defendant is entitled for 1/4th share, they have to prove issue No.2 also.
14. Similarly when the plaintiffs plead that they are entitled for partition and separate possession of their 1/4th share each in the suit property, issue No.3 has to be proved by the plaintiffs.
15. In support of the case of the plaintiffs, they relied upon the documents Exs.P.1 to P.22.
16. Ex.P.1 is the registered sale deed dated 1.7.1988 executed by one Smt.Halimunnisa Begum in favour of K.Mani the 1st plaintiff, Smt. K.Janaki the 2nd plaintiff, Sri. K.Ramaswamy the husband of the 1st defendant and father of defendants 1 to 5 and also in favour of one K.Babu, who is the 6th defendant in this case for sale price of Rs.2,50,000/- and possession of the property was delivered to the purchasers. The recital also shows that before conveying the property under Ex.P.1, the 1st plaintiff was a tenant in a portion of the schedule property earlier.
- 16 - O.S.5049/2011
17. It is worth to mention that while mentioned the boundaries, it appears that some mistake has been crept in and boundaries was mistakenly mentioned and accordingly the vendor Smt.Halimunnisa Begum also executed Rectification Deed in favour the very same purchasers as per Ex.P.2. There is no recital in the sale deed Ex.P.1 as to the extent to which they contributed the funds while purchasing the suit property. It is worth to mention that the 2nd plaintiff is not a coparcener and it is the specific defence of the defendants 1 to 3 that it is only the 1st plaintiff, the deceased K.Ramaswamy and the 6th defendant are the coparcener and plaint schedule property was purchased out of the joint family funds. The defendants 1 to 3 in their written statement fairly conceded that defendants 1 to 5 together are entitled for their legitimate 1/3rd share in the plaint schedule properties. The 2nd plaintiff in this case is none other than the wife of 1st plaintiff. Except producing the two pass books as per Ex.P.12 and Ex.P.13, no documents are produced by the plaintiffs to show that
- 17 - O.S.5049/2011 2nd plaintiff also contributed funds while purchasing the plaint schedule properties. Those documents in my opinion are not sufficient to hold that the 2nd plaintiff also contributed funds along with the 1st plaintiff who is her husband, K.Ramaswamy and 6th defendant to purchase the plaint schedule properties. Admittedly plaintiff No.2 is a house wife. In my opinion, at best, the contribution if any will be by the 1st plaintiff only.
18. Ex.P.2 as discussed earlier is the registered Rectification Deed dated 3.10.1991 executed by Smt.Halimunnisa Begum in favour of the very same purchasers under Ex.P.1, wherein she executed rectification deed by rectifying the mistake that was crept in Ex.P.1 while mentioning the boundaries and property number without receiving any further sale consideration.
19. Ex.P.3 to P.8 are all khatha extracts, which are in the name of K.Mani and others, who appear to be none other than the purchasers of the properties
- 18 - O.S.5049/2011 under Ex.P.1. Ex.P.3 to 6 pertains to the assessment year 2011-12 and Ex.P.6 to P.8 pertains to the assessment year 2014-15. The measurement of the site and constructed area both left blank in all the documents Ex.P.3 to P.8. These documents Ex.P.3 to P.8 at best shows that khatha was made out in the name of purchasers based on the sale deed Ex.P.1.
20. Ex.P.9 to P.11 are the tax paid receipts paid by the 1st plaintiff and others for the assessment year 2008-09 and all the tax paid receipts are dated 29.8.2008.
21. Ex.P.12 is the Bank Pass Book of the 2nd plaintiff Smt.K.Janaki pertaining to Canara Bank and Account was opened on 6.2.1985. This document at best shows that she had Bank Account in 1985 and this document in my opinion is not sufficient to show that she contributed fund to purchase the plaint schedule properties by drawing the amount if any from her account bearing No.4006. As on 10.2.1988, the bank balance is shown as 26,925/-. The occupation if any
- 19 - O.S.5049/2011 of the 2nd plaintiff is not mentioned in the pass book. No convincing documents are produced to show that the 2nd plaintiff was the earning member in the family nor to show that she is a coparcener of the joint family with the 1st plaintiff, K.Ramasamy and 6th defendant K.Balu.
22. Ex.P.13 is again pass book jointly opened in the names of Smt.Kungumaya Ammal and Smt.K.Janani Ammal, who appears to be the 2nd plaintiff in this case in Karur Vysys Bank and in this document also, the occupation if any of the 2nd plaintiff is not mentioned. Prima facie joint account was opened as per Ex.P.13 on 18.4.1983. No convincing documents are produced to show that who drawn the amount to an extent of Rs.41,000/- as on 1.7.1988. If at all if really the 2nd plaintiff contributed any amount while purchasing the suit property, there was no impediment for the 2nd plaintiff to appear before the Court and to give evidence. However, the 1st plaintiff is examined as PW.1 and the 2nd plaintiff never stepped into the witness box to discharge the burden
- 20 - O.S.5049/2011 cast on the 2nd plaintiff i.e. to prove before the Court that she also contributed equal money while purchasing the suit property. As discussed earlier, there is no convincing evidence on record to show that 2nd plaintiff independently contributed equal fund along with the 1st plaintiff while purchasing the suit property.
23. Ex.P.14 is the office copy of the legal notice dated 17.11.2010 issued by the plaintiffs to the defendants calling upon the defendants to effect partition and to give separate possession of their 1/4th share each i.e. together half share in the plaint schedule property. Ex.P.15 to P.20 are all served postal acknowledgements for having served legal notice on defendants 1 to 6. Ex.P.21 is the unserved postal cover sent to the 4th defendant in this case. Ex.P.22 is the postal receipt for having sent legal notice by certificate of posting.
24. Defendants 1 to 3 on the other hand relied upon the document Ex.D.1 and Ex.D.1(a). Ex.D.1 as
- 21 - O.S.5049/2011 discussed earlier is the dissolution of partnership dated 5.8.1988 executed between K.Mani the 1st plaintiff in this case, K.Ramaswamy the husband of the 1st defendant and father of defendants 2 to 5 and also one K.Nachi Muthu. By this Ex.D.1, partnership business was dissolved on account of the death of senior partner by name K.N.Kuppuswamy Chettiar on 24.6.1986. In this document Ex.D.1, the 2nd plaintiff is not the partner nor doing any joint family business along with other coparcener. The contents of Ex.D.1 in my opinion substantiates the defence of defendants 1 to 3 that the 2nd plaintiff never contributed any fund while purchasing the suit schedule properties and also substantiates the defence of defendants 1 to 3 that it is only the 1st plaintiff, deceased K.Ramaswamy and the 6th defendant alone constituted Hindu Undivided Joint Family and they are the only joint family members as on the date of acquisition of the property under Ex.P.1. Naturally the khatha of the suit property was transferred in the name of the 1st plaintiff and all the purchasers are shown to be the
- 22 - O.S.5049/2011 kathedars and owners as per Ex.P.3 to P.8. Ex.D.1(a) is the signature of K.Ramaswamy.
25. So, in view of the said discussion, in my humble view, the 2nd plaintiff does not have any right, title, interest or share in the plaint schedule properties and at best she might be in possession with the 1st plaintiff so far it relates to the share of her husband is concerned. As such, the 1st plaintiff, deceased K.Ramaswamy represented by defendants 1 to 5 and the 6th defendant K.Babu are entitled 1/3rd share each in the plaint schedule properties. Even the 2nd plaintiff has no right to seek for partition as she is not a coparcener in the joint family. The 1st plaintiff is entitled for partition of the plaint schedule properties to his 1/3rd share to the exclusion of the 2nd plaintiff, who is none other than his wife.
26. The plaintiff, who is examined in this case as PW.1, has reiterated the plaint averments. For the first time in his chief examination affidavit in para-6, he goes to the extent of saying that his wife the 2nd
- 23 - O.S.5049/2011 plaintiff Smt.Janaki paid the contribution a sum of Rs.65,000/- towards the sale consideration on the date of registration of the sale deed, which amount was kept in her SB account bearing No.4006 maintained at Canara Bank and also at SB Account No.1233 at Karur Vysya Bank, J.C.Road, Bangalore. Admittedly these facts have not been pleaded in the plaint. Any amount of evidence adduced without pleading in my opinion is of no consequence and same cannot be accepted.
27. However PW.1 in his cross-examination stated that his father has not started the business under the name and style Venkateshwara Tyres, but he started the same in the year 1990. He also stated that he do not know in which year, his father started tyre business. He also admitted that his brother Babu is also having a tyre shop and further admitted that all of his brothers are doing business in tyre shop. He further stated that one Ramaswamy i.e. husband of the 1st defendant was doing tyre business under the
- 24 - O.S.5049/2011 name and style Babu Tyres. He further stated that the business run by his brother Babu has no name to his business place, but he was doing business in shop No.3, Mavalli Tank Bund Road. He further admitted that he is doing the very same business at Shop No.3, Mavalli Tank Bund Road and Kalasipalyam.
28. A specific question is asked in the cross- examination of PW.1 by requesting the PW.1 to say as to the extent of amount contributed by each purchaser, but he has not answered the said question and the same as recorded in the deposition of PW.1, but later he admitted that same was not mentioned in the sale deed. He specifically admitted that the 2nd plaintiff Smt.Janaki is only a house wife and she studied up to 4th or 5th standard. However he denied the suggestion that the amount shown in Ex.P.12 and P.13 pass Books is not the self acquired amount of the 2nd plaintiff. He also admitted that the said amount shown in the pass books belongs to Kungumayammal, who appears to be the joint khatha
- 25 - O.S.5049/2011 holder as per Ex.P.13. He also admitted that except the pass books, he has no document for having contributed the purchase amount.
29. The 2nd defendant, who is examined as DW.1, has reiterated the written statement averments. For the first time, DW.1 has stated in his chief examination affidavit that the sons of Kuppuswamy Chettiar were all uneducated and they were all assisting their father in tyre business. Admittedly this fact is not pleaded in the written statement of defendants 1 to 3.
30. However DW.1 in his cross-examination goes to the extent of saying that he has produced documents before the Court to show that they were doing tyre business jointly in 1976. But no documents are produced in this regard except producing Ex.D.1. He goes to the extent of saying that he has got document to show that his father was the owner of Babu Tyres, but he has not produced any documents in this regard. DW.1 in his cross-examination admitted that
- 26 - O.S.5049/2011 that there exists three shop premises and a godown in the suit property. One shop and godown is in the custody of DW.1 and also admitted that the other two shops are in the custody of the 1st defendant and 6th defendant respectively. This in my opinion clearly establishes the defence of the defendants 1 to 3 that only the 1st plaintiff, K.Ramaswamy and the 6th defendant being coparceners are doing the business jointly without the aid and assistance of the 2nd plaintiff. DW.1 in his cross-examination goes to the extent of saying that the 1st plaintiff, his father K.Ramaswamy and the 6th defendant alone purchased the plaint schedule properties.
31. Nothing worth is elicited in the cross- examination of DW.1 to show that the 2nd plaintiff is also a co-purchaser nor to establish before the Court that the 2nd plaintiff also contributed fund while purchasing the suit property nor show that the 2nd plaintiff was in joint possession of the plaint schedule property and further show that the 2nd plaintiff is
- 27 - O.S.5049/2011 having a share to an extent of 1/4th in the plaint schedule properties.
32. On careful perusal of the material available on record, the 1st plaintiff was able to establish before the Court that he along with K.Ramaswamy and 6th defendant purchased the suit property by virtue of a sale deed dated 1.7.1988. Similarly the 1st plaintiff was able to establish before the Court that he along with defendants 1 to 5 jointly and the 6th defendant are entitled for 1/3rd share each in the plaint schedule properties by metes and bounds and accordingly I answer issue Nos. 1 to 3 'partly in the affirmative'.
33. Issue No.4: The defendants 1 to 3 in the written statement also taken the defence contending that the suit is bad for non-joinder of necessary parties. However PW.1 in his chief examination affidavit at para-6 has specifically stated that the suit schedule properties are his own acquisition and it is not at all the joint family properties as alleged by the defendants. He also stated that infact there was no
- 28 - O.S.5049/2011 joint family as alleged by the defendants. He further stated that the other children of late Kuppuswamy Chettiar have no right, title or interest whatsoever in the suit schedule properties. So, in view of all these, in my opinion, the daughters nor the other sons of late Kuppusamy Chettiar are not the proper and necessary parties in this case. Defendants 1 to 3 failed to prove issue No.4 and accordingly issue No.4 is answered in the 'negative'.
34. Issue No.5: In view of the findings on issue No.1 to 4, I proceed to pass the following:
ORDER The instant suit filed by the 1st plaintiff against the defendants is hereby partly decreed.
Taking into consideration the relationship of the parties, there is no order as costs.
The 1st plaintiff is hereby held
entitled for partition and separate
possession of his 1/3rd share only in the
- 29 - O.S.5049/2011 plaint schedule properties by metes and bounds.
Similarly defendants 1 to 5 being the co-purchasers together are held entitled for their legitimate 1/3rd share in the plaint schedule properties by metes and bounds (wife and children of deceased K.Ramaswamy).
Similarly the 6th defendant being one of the co-purchasers is also held entitled for his legitimate 1/3rd share in the plaint schedule properties.
The suit of the 2nd plaintiff is
dismissed.
Office is directed to draw preliminary decree accordingly.
(Dictated to the Judgment Writer, computerized print out taken thereof is corrected, signed and pronounced by me in Open Court on this the 26th day of June, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
- 30 - O.S.5049/2011
ANNEXURE
List of witnesses examined for the plaintiff:
P.W.1: Sri. K.Mani List of documents marked for the plaintiff:
Ex.P.1: Registered sale deed dated 1.7.1988. Ex.P.2: Rectification deed dated 3.10.1991.
Ex.P.3 to Khatha extracts.
P.8:
Ex.P.9 to Tax paid receipts.
P.11:
Ex.P.12: Bank Pass book pertaining to 2nd plaintiff.
Ex.P.13: Bank pass book pertaining to 2nd plaintiff
and her mother.
Ex.P.14: Copy of legal notice.
Ex.P.15 Postal acknowledgements.
to P.20:
Ex.P.21: Unreturned postal cover with
acknowledgement.
Ex.P.22: Certificate of posting receipt. List of witnesses examined for the defendants:
D.W.1 R.Srinivas.
List of documents marked for the defendants: Ex.D.1: Dissolution of Partnership Deed Ex.D.1(a): Signature of father of DW.1 (subject to condition).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.