Bangalore District Court
Smt. Gowramma vs Smt. Jayamma on 23 August, 2021
IN THE COURT OF THE LXII ADDL.CITY CIVIL
AND SESSIONS JUDGE (CCH-63) BENGALURU CITY
PRESENT:
Sri. R. ONKARAPPA, B.Sc.LL.B
LXII Add. City Civil and Sessions Judge,
Bangalore City.
Dated this the 23 rd day of August, 2021
ORIGINAL SUIT NO. 6159/2017
PLAINTIFF: Smt. Gowramma,
Aged about 70 years,
D/o Late H. Chikkanna,
R/at No. 34, Ramakrishnappa,
Layout, 2nd Cross, Geddalahalli,
RMV II Stage, Bengaluru-560 094.
Rep. By GPA holder,
Sri. V. Srinivas, Aged about 50 years,
S/o Smt. Gowaramma,
R/at No. 34, Ramakrishnappa,
Layout, 2nd cross, Geddalahalli,
RMV II stage, Bengaluru-560 094.
[By Sri. A G Ballolli, Advocate]
/v e r s u s/
DEFENDANTS: 1. Smt. Jayamma
Aged about 68 years,
D/o Late H. Chikkanna,
W/o Sri. Konegowda,
R/at Nagathihalli village,
Bellur Hobli, Nagamangala Taluk,
Mandya District
2.Sri. C. Dhanakeerthi,
Aged about 55 years,
S/o Late H. Chikkanna,
2 O.S. No. 6159/2017
3. Smt. Bhagya,
Aged about 42 years,
W/o Sri. C. Dhanakeerthi,
4. Master Nischal D,
Aged about 13 years,
S/o Sri. C. Dhanakeerthi,
Since Minor represented by
Mother & Natural guardian,
Smt. Bhagya,
The defendants No. 2 to 4 are
R/at No. 48/46, Hosur road,
Adugodi, Bengaluru-560 030.
[By defendant No.1 - Exparte,
defendant Nos. 2 to 4 - B.S.N, advocate]
Date of institution of the : 07.09.2017
suit
Nature of the suit : Partition suit
Date of commencement of : 09.10.2019
recording of the evidence
Date on which the : 23.08.2021
Judgment was pronounced
: Year/s Month/s Day/s
Total duration
03 11 14
(R. ONKARAPPA)
LXII ACC & SJ: B'LORE.
3 O.S. No. 6159/2017
JU DG M E NT
The present suit has filed by the plaintiff for partition of
the schedule property by metes and bounds and for separate
possession of the plaintiff's legitimate 1/3rd share each in the
property, further declare the release Deed dated 16.03.2013
registered as No. SHR-1-02529-2012-2013, in the office of the
Sub-Registrar, Shanthinagar, Bengaluru, executed by the 1 st
defendant in favour of 2nd defendant is not binding on the
plaintiff. Declare the Gift Deed dated 02.03.2017 registered as
No. SHR-1-03536-2016-17, in the office of the Sub-Registrar,
Shantinagar, Bengaluru, executed by the 2 nd defendant in
favour of defendants Nos. 3 and 4 is not binding on the
plaintiff.
SCHEDULE PROPERTY
All the part and parcel of the immovable property
bearing Site No. 46, Municipal No. 48/46, new Municipal
No.46, PID No. 63-40-46 in Sy. No. 87/1 Audugodi, presently
comes under BBMP limits, Bengaluru, Ward No. 63, situated
at Laskar Hosur Road, Adugodi, Bengaluru, Ward No. 63,
situated at Laskar Hosur road, Adugodi, Bengaluru,
measuring East to West 60 Feet, North to South 30 Feet,
totally 1800 Square Feet (minus 269 Square Feet of property
4 O.S. No. 6159/2017
acquired by BBMP for widening Hosur Main Road), consisting
of shops in the Ground Floor, residential houses in the First
Floor and Second Floor, bounded on the;
East by : Hosur Main road,
West by : Private Property
North by : Private Property
South by : Private Property
2. Net shell of the case of the plaintiff is that , the
plaintiff and the 1st defendant are sisters, the 2 nd defendant is
their brother, the defendants Nos. 3 and 4 are the wife and
minor son of the 2nd defendant. The plaintiff and defendants
are the lineal descendants of late H. Chikkanna and together
they constitute members of an undivided Hindu joint family.
The plaintiff's father Sri. H. Chikkanna was the sole and
absolute owner of the property bearing Site No. 46, Municipal
No. 48/46, new Municipal No. 46, PID No. 36-40-46 in Sy.
No. 87/1 of Adugodi village, presently in the limits of BBMP
Ward No. 63, situated at Laskar Hosur road, Adugodi,
Bengaluru, measuring East to West 60 feet, North to South 30
feet, consisting of shops in the Ground Floor and residential
houses in the first floor and second floor. The schedule
property was the self acquired property of the plaintiff's father
5 O.S. No. 6159/2017
H. Chikkanna by virtue of purchase of site through a Sale
deed dated 20.03.1961 registered as No. 5616/1960-61,
pages 49 to 53, Volume 237, Book-I, in the office of the Sub-
Registrar, Bengaluru South Taluk. The plaintiff's father
obtained building plan sanctioned by BBMP and constructed
the building of ground floor, first floor and second floor on the
site. The shops in the ground floor and the residential units in
the first floor and second floor are let out to tenants. The
khata stood in the name of the plaintiff's father H. Chikkanna
and he was paying the taxes and he was in peaceful
possession and enjoyment of the schedule property during his
lifetime. The plaintiff's father H. Chikkanna died intestate
leaving his wife Smt. Mayamma, she also died on
04.11.2014, they left behind 2 daughters Smt. Gowramma
(plaintiff) and Smt. Jayamma (1st defendant) and a son Sri.
Dhanakeerthi who is the 2nd defendant, as his only legal heirs
and successors to his estate and property. Thus the plaintiff
and the defendants Nos. 1 and 2 are the coparceners in joint
possession and enjoyment of the schedule property. There is
no partition effected in the joint family of the plaintiff and the
defendants either during the lifetime of the plaintiff's father or
subsequent to his death. In an equitable partition the
6 O.S. No. 6159/2017
schedule property has to be divided and shared equally
among the plaintiff and the defendants Nos. 1 and 2 and each
of them is entitled to a legitimate 1/3rd share in the schedule
property. On the demise of the plaintiff's father Sri. H.
Chikkanna, her mother Smt. Mayamma had got the khata of
the schedule property in her name. Later Smt. Mayamma has
allegedly executed release Deed dated 06.03.2013, registered
as No. SHR-1-02529-2012-2013, stored in CD No. SHRD26,
Book-I, in the office of the Sub-Registrar, Shanthinagar,
Bengaluru, in favour of the 2nd defendant, releasing the entire
schedule property in his favour. The plaintiff's mother Smt.
Mayamma was not the absolute owner of the schedule
property and she had no independent right, title and
ownership over the schedule property to release in favour fo
the 2nd defendant, ignoring the lawful inheritance right and
share of the plaintiff who is also a coparceners, having jointly
succeeded to the estate of her father later H. Chikkanna. As
such the 2nd defendant has not derived any valid right, ritle,
ownership over the schedule property by virtue of fraudulent
registered release deed executed by the 1 st defendant. That
the BBMP had notified and acquired an extent of 269 Square
Feet of the schedule property for the purpose of widening the
7 O.S. No. 6159/2017
Hosur Main road. The BBMP has awarded compensation of
Rs. 36,72,190/- for the acquired property on the basis of the
registered release deed dated 16.03.2013 the 2 nd defendant
has withdrawn the compensation amount from BBMP and
misappropriated the same for his wrongful gains, without
accounting the same or sharing with the plaintiff.
Subsequently, the 2nd defendant has gifted the entire schedule
property in favour of his wife and minor son who are the
defendants Nos. 3 and 4 herein by executing Gift Deed dated
02.03.2017, registered as No. SHR-1-03536-2016-17, stored
in CD No. SHRD75, Book-I, in the office of the Sub-registrar,
Shanthinagar, Bengaluru. The 2nd defendant was not the
absolute owner and he had no right to gift the schedule
property to his wife and minor son, ignoring lawful right and
share of the plaintiff in the schedule property. As such the
defendants No. 3 and 4 also have not derived any valid right,
title and ownership to the schedule property by virtue of the
fraudulent registered Gift Deed. The plaintiff has been
continuously demanding for partition and separate
possession of her legitimate share in the schedule property,
after the demise of her father. Though the plaintiff's mother
Smt. Mayamma had promised to effect partition and give
8 O.S. No. 6159/2017
share to all her children, she failed to effect partition. Again in
the 1st week of July 2017 the plaintiff demanded the
defendants No. 1 and 2 to effect partition of the schedule
property by metes and bounds and to allot her share, but the
defendants refused to effect partition and to give any share to
the plaintiff in the schedule property. Hence the plaintiff
intended to take recourse to law to seek for partition and
share in the schedule property. The schedule property
consisting of shops in the Ground Floor and residential units
in the first floor and second floor, which are let out to tenants,
the defendants Nos. 2 to 4 are enjoying the rental income
from the schedule property without accounting and sharing
with the plaintiff. The plaintiff is seeking for mesne profits
also. The cause of action for this suit arose on the demise of
the plaintiff's father Sri. H. Chikkanna. The present suit has
filed by the plaintiff for partition of the schedule property by
metes and bounds and for separate possession of the
plaintiff's legitimate 1/3rd share each in the property. Declare
the release Deed dated 16.03.2013 registered as No. SHR-1-
02529-2012-2013, in the office of the Sub-Registrar,
Shanthinagar, Bengaluru, executed by the 1st defendant in
favour of 2nd defendant is not binding on the plaintiff. Declare
9 O.S. No. 6159/2017
the Gift Deed dated 02.03.2017 registered as No. SHR-1-
03536-2016-17, in the office of the Sub-Registrar,
Shantinagar, Bengaluru, executed by the 2nd defendant in
favour of defendants Nos. 3 and 4 is not binding on the
plaintiff.
3. Inspite of publication of suit summons through
paper publication, the defendant No. 1 remained absent.
Hence defendant No. 1 placed as exparte as per order of this
Court dated 07.04.2018. After service of summons of this suit
the defendant Nos. 2 to 4 appeared and filed their written
statement.
4. The defendant Nos. 2 to 4 in their written
statement contended that, the defendants admitted the
relationship between the plaintiff and the defendants. The
plaintiff suppressed the material fact before this Court and
not come with clean hand. That the plaintiff got her share
after her marriage by way of site from her father site bearing
No. 97, 8th Cross, RMV 2nd stage, Radha Krishna ward No. 18,
Geddalahalli, Bengaluru measuring East to West 20 feet and
North to South 40 feet bounded on east private property West
by private property north by road, South by private property.
That father of the plaintiff and the defendant No. 1 and 2 was
10 O.S. No. 6159/2017
the government employee after his retirement, the entire
retirement benefit was taken by the plaintiff and the
defendant No. 1, since both are financial difficulties and they
put for the their grievance before their father, who after
discussing with the defendant No. 2 orally decided that the
schedule property which is mentioned supra will be transfer
in favour fo the plaintiff on the condition that she is not
entitle for any share as she is claiming in the suit schedule
property. Apart from this plaintiff and 1st defendant has got
retirement benefit from H. Chikkanna along with pension till
both the parents expired. The above arrangement are made
with the knowledge of plaintiff, defendant No. 1 and 2, hence
the plaintiff has got her legitimate share from her father.
Inspite of getting her share, the plaintiff again demanding
from her own brother the defendant No. 2. since parents after
discussing with the plaintiff and the defendant No. 1 and with
their consent has transfer the suit schedule property in
favour of the defendant No. 2 which is within the knowledge
of the plaintiff and defendant No. 1 who are kept quite all
these years and now raise issue in order to get wrongful gains
from the defendant No. 2. If the plaintiff is asking for the
partition and account of the suit schedule property from
11 O.S. No. 6159/2017
getting retirement benefit along with pension from her parent
till their death. That the compensation amount awarded by
the BBMP a sum of rs. 10,00,000/- paid to the 1 st defendant
on her request by these defendants as she is in financial
difficulty. By knowing the facts the plaintiff has not digested
the amount taken by the 1st defendant and hence file the
above suit filed just to harass these defendants as she also
demanded compensation money for her own son who is now a
GPA holder in the above case. The defendant NO. 2 is lawful
owner of the suit schedule Property as he got it from his
parents by way of release deed in 2013. These are the facts
within the knowledge of plaintiff and the defendant No. 1. Sri.
Late Chikkanna has made fixed deposit in the Bank in the
name of 1st defendant. That there is no cause of action arose
for this suit. On all other grounds the defendant Nos. 2 to 4
urge for dismissal of the suit.
5. On perusal of order sheet it is evident that in
compliance of section 89 CPC, the court kept open the party
to the proceedings to appear and observe the elements of
compromise available in the suit. Despite an opportunity kept
open to the party to the proceedings neither of the party to
the proceedings shown their willingness to observe the
12 O.S. No. 6159/2017
elements of compromise available in the suit. Hence issue
have been framed put the record for evidence.
6. Heard arguments of learned counsel for the
defendants No. 2 to 4. Counsel for the plaintiff filed written
argument. Perused the material on record.
7. Based on the pleadings, this court have framed a
as many as four issues, they are all herein;
ISSUES
1. Whether the plaintiffs proves that she is
entitled for the relief sought in the plaint?
2. Whether the defendant No. 2 proves that there
is oral arrangement between defendant No. 1 and 2
regard to partition of property belonging to Late
Sri. H. Chikkanna and Smt. Mayamma?
3. Whether the 2 nd defendant proves that plaintiff
got her share as alleged in Para No. 2 of written
statement?
4. What decree or order?
8. My finding on the above points are as under:
Issues No.1 : In the Partly Affirmative
Issue No. 2: In the Negative
Issue No. 3: In the Negative
13 O.S. No. 6159/2017
Issue No. 4: As per final order for the
following:
REASONS
9. ISSUE No. 1: The plaintiff in order to prove her
case, her SPA holder by name V. Srinivas examined at before
this court as PW.1. PW1 in lieu of examination in chief he
filed an affidavit, wherein he reiterated all the averments of
the plaint. To prove the case of the plaintiff, PW1 also got
marked as many as 12 documents, as per Ex.P1 to Ex.P12.
Further the plaintiff have not chosen to examine neither of
the witness in his favour, hence there is no further evidence
on side of the plaintiff. On the other hand the defendant have
not chosen neither to examined himself nor examined any of
the witness in his favour and marking of any documents in
his side. On the contrary as per the order sheet dated
24.02.2021, the counsel for the defendant himself appeared
and submitted that no defendant evidence on their side.
10. After go through the pleadings, evidence and
documents, it is pertinent to note that, there is no dispute
with respect to relationship between the plaintiff and the
defendants. Further the defendant Nos. 2 to 4 have also not
much disputed that the defendant Nos. 1 to 4 and the
14 O.S. No. 6159/2017
plaintiff are the legal representatives of one H. Chikkanna.
Also not disputed fact that the suit schedule property was the
self acquired property of deceased H. Chikkanna. Also not
disputed that after demise of said H. Chikkanna, mother of
the plaintiff and the defendant Nos. 1 and 2 deceased
Mayamma got transferred the suit schedule property in her
favour by mutating the khata on pavathivarsu. Also not
much disputed fact that, the mother of the plaintiff and the
defendant Nos. 1 and 2 have executed released deed in favour
of defendant No. 2. Also not much disputed fact that, the
execution of gift deed by the defendant No. 2 in favour of
defendant Nos. 3 and 4 who are the wife and son of defendant
No.2 respectively. As such contents of Ex.P1 Genological tree,
recital of sale deed as per Ex.P2 stands proved. Further
alienation of the property to the father of the plaintiff and
defendant no 1 and 2 have also not disputed fact. Perused
the Ex.P8. Ex.P8 speaks that propositus Chikkanna was died
on 27.04.1998. Perused the E.xP9. Ex.P9 speaks that mother
of the plaintiff Mayamma was died on 04.11.2014. It is not a
case of the defendant Nos. 2 to 4 that there was already
partition between the plaintiff and the defendant Nos. 1 and
2. Perused the release deed as per Ex.P3, Ex.P3 release deed
15 O.S. No. 6159/2017
stated to be executed by deceased Mayamma in favour of 2 nd
defendant on 16.03.2013. Perused the Gift Deed as per
Ex.P4, Ex.P4 gift deed executed by the 2 nd defendant in
favour of his wife 3rd defendant and his son 4 th defendant.
Perused the Encumbrance Certificates as per Ex.P5 and
Ex.P6. Ex.P5 and Ex.P6 Encumbrance certificate have speaks
that nothing an alienation affected on the suit schedule
property till today. Since the plaintiff filed the suit by
excluding 269 Sqft out of its total extent of the suit schedule
property, the same 269 Sqft have acquired by the BBMP and
passed an award. As such Ex.P10, E.xP11 and Ex.P12 not
give much significance role to decide the partition right
between the plaintiff and defendant Nos. 1 and 2. Controversy
between the plaintiff and the defendants is that the defendant
No. 1 and the plaintiff who being daughters of deceased H.
Chikkanna and Mayamma they have joint family right over
the suit schedule property. Suit schedule property is one of
the building as per Ex.P2 sale deed. Whether mayamma can
execute the release deed as per Ex.P3 to the 2 nd defendant by
denying the partition rights of the plaintiff and 1 st defendant
is the issue. Admittedly, suit schedule property is the self
acquired property of H. Chikkanna. Mayamma got transferred
16 O.S. No. 6159/2017
the suit schedule property in her name after death of H.
Chikkanna. Perused the Ex.P3. Ex.P3 release deed have been
executed by Mayamma in favour of the 2 nd defendant on
16.03.2013. After go through the release deed as per Ex.P3
said Mayamma released her right over the property to the 2 nd
defendant upon the total extent of the suit schedule property.
Further also perused Ex.P3 release deed. Ex.P3 release deed
have not been either consented or executed neither by the
plaintiff nor by the 1st defendant in favour of the 2 nd
defendant. No doubt the plaintiff and the 1 st defendant is have
the equal right upon ancestral and joint family family
property, as equally with the 2nd defendant by inheritence.
The same equal right have accrued to the plaintiff and the 1 st
defendant by birth itself under Hindu Mithakshra Law. Under
Hindu mithakshara law, it recognize right of inheritance upon
the ancestral and joint family property of the joint Hindu
family. Case of the plaintiff is that the mother of the plaintiff
and defendant Nos. 1 and 2 Mayamma instead of alloted the
partition right over the suit schedule property to the plaintiff
and the defendant Nos. 1 and 2, said deceased Mayamma
have executed release deed dated 16.03.2013 as per Ex.P3.
On virtue of Ex.P3 release deed, the 2 nd defendant inturn have
17 O.S. No. 6159/2017
executed gift deed dated 02.03.2017, upon the suit schedule
property to an whole extent as per Ex.P4 in favour of the
defendant Nos. 3 and 4.
11. The case of the plaintiff is that deceased
Mayamma was not the absolute owner of the schedule
property and she had no independent right, title and
ownership to release the rights over the suit schedule
property to an whole extent in favour of the 2 nd defendant by
denying lawful inheritance right and share of the plaintiff,
who are also a joint family members and having jointly
succeeding to the estate of her father Late H. Chikkanna. To
ascertain the very contention of the plaintiff, I go through the
cross examination portion of PW1. To that factum, the
defendant No2 to 4, have not made any single suggestion
that, the suit schedule property is not the joint family
property of the plaintiff and the defendant Nos. 1 and 2. The
same suit schedule property can be released by Mayamma to
an total extent of the suit schedule property by executing
Ex.P3 release deed in favour of defendant No. 2 after denying
the inheritance right of the plaintiff and the 1 st defendant. It
suggest by the defendant Nos. 2 to 4 to PW.1 that, the H.
Chikkanna got retired from his service, the same retired
18 O.S. No. 6159/2017
benefits have allocated to the mother of the PW1 and the 1 st
defendant the same suggestion have denied by the PW.1.
Further suggest by the counsel for the defendant Nos. 2 to 4
that the award amount which was passed by the BBMP upon
the extent of 269 Sqft of its total extent of the suit schedule
property have been equally distributed among the plaintiff
and the defendant Nos. 1 and 2, the same suggestion have
also been denied by the PW1. Not in dispute that the property
to the extent of 269 Sqft have been acquired by the BBMP for
widening the road. The same acquisition have been
substantiated by the plaintiff through the Ex.P10, Ex.P11 and
Ex.P12 document. The defendant Nos. 2 to 4 have also not
disputed the acquisition of 269 Sqft out of the total extent of
the suit schedule property for widening the road. Now the
issue, whether the award amount as well as the retired
benefits and pensions of H. Chikkanna and Mayamma has
been allotted to the share of the plaintiff and the 1 st defendant
by equating the suit schedule property right to the 2 nd
defendant. To substantiate the contention of the defendant
Nos. 2 to 4, except an suggestion nothing has been elicited
through the mouth of PW1. further that the defendant Nos. 2
to 4 have failed to brought an cogent evidence on record, to
19 O.S. No. 6159/2017
shown that coparcenary and joint family property right upon
the suit schedule property to the mother of the P.W.1 have
been equated by allotted retired benefits, pension of H.
Chikkanna and Mayamma.
12. Law has been cleared by the Hon'ble High Court
of Karnataka reported in 2011(6) Kar. L.J. 391 (DB) Allam
Karibasappa (Since Deceased) By L.Rs and another Vs
Singamasetty Venkataramaiah and others, wherein their
Lordship has held that "Where ex-insolvent, on death of
his father, had jointly succeeded along with his mother,
to one anna share of his deceased father in partnership
firm, sale of entire one anna share by official receiver,
held, is unsustainable in law - Said sale, held, is valid
only to extent of half anna share to which ex-insolvent
succeeded after his father's death - Direction lies to
official receiver to execute deed of cancellation of said
sale deed insofar as it relates to conveyance of half-anna
share to which his mother had succeeded after death of
her husband, as she was not declared insolvent and as
she had not agreed to sell her share". As such case on
hand also the plaintiff have one share, 1 st defendant have one
share, the second defendant have also one share further late
20 O.S. No. 6159/2017
Mayamma also entitled one share, as the above all persons
are the persons who are class-1 heir of the deceased
Chikkanna. Further late Mayamma was the mother of the
plaintiff and the defendant No1 and 2, that her lifetime itself
she released her right over the suit schedule property as per
Ex.P3, the same cannot denied now, as she accrued her right
of inheritance very moment after death of her husband.
13. Further contention of the defendant Nos. 2 to 4
herein is that, the plaintiff and the 1 st defendant have
obtained the retirement benefit from Chikkanna along with
his pension, till both the parents were expired. The above
arrangement are made with the knowledge of the plaintiff and
the defendant Nos. 1 and 2, hence the plaintiff has already
got her legitimate share from her father. Inspite of getting her
share, the plaintiff again demanding from defendant No.2.
Since the parents after discussing with the plaintiff and the
defendant No. 1 and with their consent has transferred the
suit schedule property in favour of the defendant No.2, which
is with the knowledge of the plaintiff and the defendant No.1.
On the other hand the plaintiff have contended that the
mother of the plaintiff and the defendant Nos. 1 and 2
deceased Mayamma by denying continuous demand for
21 O.S. No. 6159/2017
partition and separate possession of the legitimate share in
the suit schedule property, the continuous promise had made
by the Mayamma to effect the partition and give the share to
all her children, said deceased Mayamma failed to effect the
partition and she had executed the release deed in favour of
the 2nd defendant alone, by denying the legitimate partition
right of the plaintiff and the defendant No.1 upon the suit
schedule property. It is not a case of the defendant Nos. 2 to
4, neither the plaintiff nor the 1st defendant have themselves
got released their rights upon the suit schedule property
through Ex.P3 release deed. Contention of the defendant Nos.
2 to 4 is that the plaintiff and the 1 st defendant have the
knowledge to executed Ex.P3 release deed by deceased
Mayamma in favour of the 2nd defendant. That is the reason
neither the plaintiff nor the 1st defendant have not questioned
well in time and keep quite without disputing Ex.P3 release
deed. Perused the Ex.P3 release Deed. Ex.P3 disclose that it
came to be executed between the deceased Mayamma and he
2nd defendant on 16.03.2013. Further Perused Ex.P3. After go
through Ex.P3 neither the plaintiff nor the 1 st defendant have
not even consented the Ex.P3 release deed either by way of
attesting witness or by way of Executent. Further after go
22 O.S. No. 6159/2017
through Ex.P3,Certified copy of Ex.P3 got obtained by the son
of the plaintiff from the competent authorities on 11.07.2017.
Even in the cross examination of the PW1 that the defendant
No. 2 to 4 have not made any single suggestion that, the suit
of the plaintiff is time barred. Even after go through the
records No such material available on record to show that suit
of the plaintiff is hit by the law of limitation. When such
being the case, the contention of the defendant Nos. 2 to 4
would not holds any water.
14. Further contention of the defendant Nos. 2 to 4 is
that, the suit for partial partition is not maintainable.
According to counsel for the defendant Nos. 2 to 4, PW1
categorically admitted the suggestion that there is an other
joint family properties belonging to the plaintiff and the
defendant Nos. 1 and 2. Hence the counsel for the defendant
No. 2 drawn my attention through the cross-examination
portion of PW1. In the cross-examination portion of PW1, it is
elicited through the mouth of PW1 that the mother of the PW1
got purchased one property at Geddalahalli bearing its No. 97,
the same property have purchased at before the birth of PW1.
Further PW1 have denied the suggestion that the property of
mother of the PW1 have purchased by Late H. Chikkanna in
23 O.S. No. 6159/2017
the name of mother of the PW1. True that partial partition
suit is not maintainable. The present suit filed by the plaintiff
upon the suit schedule property only. If it is so there are some
other properties belonging to the family of the plaintiff and the
defendant Nos. 1 and 2, it no difficulty to introduced by the
defendant Nos. 2 to 4 in their written statement. Further if it
is so property stands in the joint family of the plaintiff and
defendant Nos. 1 and 2 at Nagathihalli village, Nagamangala
Taluk as admitted by the PW1 in his cross examination, there
is no difficulty to the defendant Nos. 2 to 4 to brought the
same properties on case records and to produce the extract of
the properties before the Court and to make an defence. But
the defendant Nos.2 to 4 have not made any such effort. Just
he suggested the suggestion, the same suggestion admitted by
the PW1. The defendant Nos. 2 to 4 have also not made any
suggestion particularity of the property, its particular
Number, descriptions of the property which is stated to be
available at Nagathihalli village Nagamangala Taluk in the
name of joint family of the plaintiff and the defendant Nos. 1
and 2. Alone upon the admission that it would not to say that
there is an properties stands in the name of joint family of the
plaintiff and the defendant Nos. 1 and 2. Therefore the same
24 O.S. No. 6159/2017
contention of the defendant Nos. 2 to 4 have also not holds
any water.
15. Further arguments of the counsel for the
defendant Nos. 2 to 4 that, though, the plaintiff is readily
available to file and prosecute her case, the suit of the
plaintiff filed through GPA holder his son, therefore suit of the
plaintiff is not maintainable. To support his contention,
counsel for the defendant Nos. 2 to 4 have also relied on
judgment reported in AIR 2005 SC 439 between Janaki
Vasudev Bhojwani and another Vs Indusind Bank
Limited and others. On the other hand counsel for the
plaintiff have vehemently argued on prima facie the plaintiff
have attained the age of 70 years and being old aged woman
she could not able to contact and gave proper instruction to
her counsel to file an case and lead an evidence. That for the
reason, the plaintiff have executed SPA at before Notary as
per Ex.P7. After go through the written statement, the
defendant Nos. 2 to 4 have not much disputed the age of the
plaintiff. Further, the defendant Nos. 2 to 4 have also not
much disputed the contents of Ex.P7 SPA. To ascertain the
submission of both sides that again I go through the
pleadings of the defendant and the cross-examination portion
25 O.S. No. 6159/2017
of PW1. After go through the pleadings and the cross-
examination portion of PW1 it could not find either in cross-
examination or in their written statement, the defendant No. 2
to 4 have specifically denied the contents of Ex.P7 SPA, except
the suggestion that the plaintiff herself is able to gave her
evidence, the same suggestion also denied by the PW1. No
doubt law has cleared by the Hon'ble Supreme Court of India
in the foregoing judgment at para No. 12 and 13. In an
partition suit it is an obligatory on part of the plaintiff to have
entered the box and discharge the burden by themselves, in a
case whether independent source of income and the same
income contributed towards to purchase of the property from
their own independent income can be only answered by the
plaintiff themselves and not by a mere holder of Power of
attorney from them. The power of attorney holder does not
have the personal knowledge of the matter of the plaintiff and
therefore he can neither depose on his personal knowledge
nor can he be cross examined on those facts which are to the
personal knowledge of the principle. Case on hand
relationship between the parties to the proceedings have not
much disputed. Further not an issue that the suit schedule
property is the joint family property of the plaintiff and the
26 O.S. No. 6159/2017
defendant Nos. 1 and 2, also not in dispute that the class I
heir of deceased Chickanna entitled the equal share. As such
this Court has no occasion in the present case to determine
the question whether the suit schedule property is the self
acquired property of neither the plaintiff nor the defendant
Nos. 1 and 2 and no question remains, whether neither the
plaintiff nor the defendant Nos. 1 and 2 have contribute their
income to purchase the suit schedule property. As such law
laid down by the Hon'ble Supreme Court of India in the above
said judgment is entirely different with the facts available on
case on hand. Therefore that there is no reasons to accept
and to relay the argument of the defendant Nos. 1 and 2.
Hence the same judgment and law laid down under the
judgment have not applied to the case on hand with due
respect on that judgment. On the contrary Proviso appending
to Rule 14 of order 6 of CPC have speaks that where a party
pleading is, by reason of absence or for other good cause,
unable to sign the pleadings, it may be signed by any person
duly authorized by him to sign the same or to sue or defend
on his behalf. When such being the case, brought the suit
through his attorney holder for the enforcement of right is not
27 O.S. No. 6159/2017
legally bar. Therefore I answer the Issue No. 1in the Partly
Affirmative.
16. Issue No. 2 and 3: In order to prove the issue
Nos. 2 and 3, the defendants even after provided a maximum
opportunity to lead their evidence, the defendant No. 2 to 4
have not chosen to examined either by themselves or to
examine any of the witness in their favour. On the contrary
on 24.02.2021, counsel for the defendant Nos. 2 to 4
voluntarily submitted that they have no defendant evidence.
Even after go through the cross-examination through the PW1
nothing a materials that they have elicited through the
mouth of PW1 to substantiate the issue Nos. 2 and 3. Hence
the defendant Nos. 2 to 4 have failed to prove the issue Nos. 2
and 3. According I answer the issued No. 2 to 3 as Negative.
17. Issue No. 4 : In view of the above discussion and
my finding on Issue No.1 to 3, I proceed to pass the following -
ORDER
The suit of the plaintiffs is hereby partly decreed with cost, that the plaintiff have entitled the ¼ th share upon the schedule property. Further Release deed dated 16.03.2013 registered as number SHR-1-02529- 28 O.S. No. 6159/2017 2012-13 and gift deed dated 02.03.2014 registered as No. SHR-1-03536-2016-17 in the office of Sub-registrar, Shanthinagar, Bengaluru, are not binding on the plaintiff's and the 1 st defendant's share.
Draw preliminary decree accordingly.
[Dictated to the Stenographer, Scripted by her and then corrected, signed and pronounced by me, in the Open Court on this the 23rd day of August, 2021).
[R. ONKARAPPA] LXII Additional City Civil & Sessions Judge BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 - V. Srinivas
2. List of witnesses examined on behalf of the Defendant/s:
NIL
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 - Genological tree Ex.P2 - Sale deed 29 O.S. No. 6159/2017 Ex.P3 - Release deed Ex.P4 - Gift Deed Ex.P5 and 6 - Encumbrance Certificates Ex.P7 - Special Power of attorney Ex.P8 - Death certificate of H. Chikkanna Ex.P9 - Death Certificate of deceased Mayamma Ex.P10 - Letter by BBMP Ex.P11 - Request letter by BBMP Ex.P12 - Letter of BBMP
4. List of documents marked on behalf of the defendant/s:
NIL LXII Additional City Civil & Sessions Judge BANGALORE.