Bangalore District Court
Gurumurthy Vijayakumar @ G Vijayakumar vs V Madhubala on 6 February, 2026
KABC0A0023332023
IN THE COURT OF THE LXXII ADSL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. Sreepada N.,
B.Com., L.L.M.,
LXXII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 6th day of February 2026
O.S.No.25927/2023
Plaintiffs:- 1. Mr. Gurumurthy Vijayakumar @
G. Vijayakumar,
Aged about 69 years,
S/o Late Dr. R. Gurumurthy Reddy,
R/at No.539, 17th Main,
4th Sector, H.S.R Layout,
Bangalore-560 102.
2. Ramesh Gurumurthy
@ Dr. G. Ramesh,
Aged about 67 years,
S/o Late. Dr. R. Gurumurthy Reddy,
R/at No.64, 1st Floor,
Indiranagar 2nd Stage,
Bangalore-38.
[By Sri. K. Mohan - Adv.,]
2 OS No.25297/2023
V/s
Defendants:- 1. Smt. V. Madhubala,
Aged about 73 years,
D/o Late. Dr. R. Gurumurthy Reddy,
W/o Sri. B. Venkataswamy,
R/at Old No.12, New No.5,
Mariasusai Nagar,
Cuddalore-607 001.
Tamil Nadu.
2. Sri. Surendranath M,
Aged about 79 years,
S/o Late Sri. R. Muniswamy Reddy,
R/at No.831-32, Ranka Heights,
4th Main, 7th Cross,
Surya Narayana Temple,
Domlur, Bangalore-560 071.
3. M/s MRK Projects,
A registered partnership firm
Having its office at No.2587/B,
2nd Cross, 18th Main, HAL 2nd Stage,
Bangalore-560 008.
Represented by its Partners.
a) Sri. Krishna Chaitanya Motuku,
Aged about 37 years,
S/o Sri. Rajani Kanth Motuku,
R/at No.360, Flat No.B302,
Dhanushree Apartment,
1st Main Road, Jakkasandra,
Koramangala 1st Block,
Bangalore-560 034.
3 OS No.25297/2023
b) Sri. Puttamma Srinivasulu
Reddy,
Aged about 56 years,
S/o Late Sri. Kantha Reddy,
R/at No.27-01-32/5, 2nd Lane,
Ramji Nagar, Stone House Pet,
Nellore-524002.
c) Sri. Pranay Sekhar Motuku,
Aged about 33 years,
S/o Sri. Rajani Kanth Motuku,
R/at House No.2587/B, 2nd Cross,
18th Main, HAL 2nd Stage,
Bangalore-560 008.
d) Sri. Gopavaram Surendra,
Aged about 48 years,
S/o Late Sri. Haranath Reddy,
R/at No.360, A-403,
Dhanushree Apartment,
1st Main Road, Jakkasandra,
Koramangala 1st Block,
Bangalore-560 034.
[By Sri. SSM - Adv., for D.2,
Sri. Y.S.H. Reddy - Adv., for D.3,
D.1 - Ex-parte.)
16.6.2023
Date of Institution of the suit
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Partition Suit
for injunction, etc.)
Date of the commencement of
2.7.2022
recording of the Evidence.
Date on which the Judgment was 6.2.2026
4 OS No.25297/2023
pronounced.
Year/s Month/s Day/s
Total duration 02 07 20
LXXII ADDL. CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff against the Defendants for partition and separate possession of their 2/4th share in the Suit Schedule 'A' to 'D' Properties and to put them in possession of their share jointly and also to declare the Sale Deed dtd:
31.3.1971 in the name of deceased R. Muniswamy Reddy (father of Defendant No.2) in respect of Suit Schedule 'B' Property, Sale Deed dtd: 30.1.2020 in the name of Defendant No.3 in respect of Suit Schedule 'C' Property and Sale Deed dtd: 6.12.2020 in favour of Defendant No.3 are null and avoid and not binding on the Plaintiffs and for permanent injunction directing the Defendant No.3 to demolish the illegal construction of the Defendant No.3 in respect of the Plaintiffs' share over the Suit Schedule 'B' to 'D' Properties and also to remove the illegal 5 OS No.25297/2023 construction constructed/blocked over the common passage width of 10 feet towards southern side of the Suit Schedule 'B' Property and for cost and other consequential reliefs.
2. The case of the Plaintiff, sans details, is that the Plaintiffs grandfather by name Late Guttahally Ramaiah Reddy had three children namely R. Muniswamy Reddy, Dr. R. Muniswamy Reddy and Dr. R. Gurumurthy Reddy. The second son Dr. R. Muniswamy Reddy who was adopted by Smt. Muniyamma i.e., sister of their grandfather. Dr. R. Gurumurthy Reddy married Smt. G. Rathnamma and out of their wedlock the Plaintiffs and Defendant No.1 were born. During the lifetime of Dr. R. Gurumurthy Reddy, he had acquired immovable properties by way of Partition Deed dtd: 2.9.1970 and in the said partition he was allotted with land bearing Sy.No.86/1, measuring 03 Acres 23 ½ Guntas situated at Hood Village, K.R.Puram Hobli, now Bangalore East Taluk, land bearing Sy.No.57, measuring 01 Acre 25 ½ Guntas, situated at Seegehalli Village, Bidarahalli Hobli, now Bangalore East Taluk, Sy.No.9 measuring 02 Acres, situated at 6 OS No.25297/2023 Belathur Village, Bidarahalli Hobli, Hoskote Taluk and he is in possession and enjoyment of the same along with his family members till his demise. The Item No.2 and 3 i.e., land Sy.No.57 and Sy.No.9 was sold in the year 1975-1976 to perform the marriage of Defendant No.1. The father of the Plaintiffs Dr. R. Gurumurthy Reddy died on 30.12.1970 leaving behind his wife Smt. Rathnamma and children i.e., Plaintiffs and Defendant No.1 to succeed his estate. After the death of their father, their mother was managing the properties left by their father as head of the family. During the lifetime of Smt. Rathnamma, she made Partition Deed dtd: 27.9.2018 among herself and her family members in respect of the ancestral property left by her husband i.e., Sy.No.86/1, measuring 3.23 ½ Guntas and same was developed by way of a residential flats. After the above partition, the residential flats were transferred in their names as per the Partition Deed dtd: 27.9.2018 and continued in possession and enjoyment of their respective shares and obtained the revenue records in their names as per the Partition Deed. The mother of the Plaintiffs and Defendant No.1 Rathnamma died on 15.4.2023 7 OS No.25297/2023 leaving behind the Plaintiffs and Defendant No.1 to succeed to her estate. After the death of their mother, the Plaintiffs opened the steel almerah on 26.4.2023 and found some documents with sealed cover and after verifying the documents and noticed that some other survey number papers which was partitioned among family member i.e., Plaintiffs and Defendant No.1 and Smt. Rathnamma i.e., Sy.No.195/1 measuring 0.23 Guntas, original Partition Deed dtd:
2.9.1970 and other relevant papers. Further submitted that, to their surprise the Plaintiffs came to know that their father Dr. R. Gurumurthy Reddy and his brother Sri. R. Muniswamy Reddy, his family members have partitioned the properties left by their father i.e., grandfather of the Plaintiffs and Defendant No.1 in which the Suit Schedule 'A' Property was also allotted and fallen to the share of the Dr. R. Gurumurthy Reddy. They have not included the Suit Schedule 'A' Property which was allotted to their father vide Partition Deed dtd:
2.9.1970 in the Partition Deed dtd: 27.9.2018 entered among Plaintiffs, Defendant No.1 and their later mother. The Plaintiffs have obtained revenue documents in respect of Suit Schedule 'A' Property 8 OS No.25297/2023 and to their surprise their mother and Defendant No.1 have no exclusive right, ownership have alleged alienated the portion of the Suit Schedule 'A' Property i.e., Suit Schedule 'B' Property in favour of deceased R. Muniswamy Reddy i.e., the father of Defendant No.2 vide registered Sale Deed dtd: 31.3.1971. Late Rathnamma and Defendant No.1 have no exclusive right to deal in the same by isolation of the joint family members, as such the same is not binding on the Plaintiffs and they are not the parties to the Sale Deed and have not consented for the same and taking minor ages of the Plaintiffs have allegedly alienated and the same is not binding on them. In turn the Defendant No.2 sold the portion of the Suit Schedule 'B' Property to an extent of 0.05 Guntas as resurvey No.195/1A i.e., Suit Schedule 'C' Property in favour of Defendant No.3 vide registered Sale Deed dtd: 30.1.2020. Further, the Plaintiffs only after the Defendant No.3 has filed their written statement came to know about the Sale Deed dtd: 6.12.2020 executed by the Defendant No.2 in favour of Defendant No.3 to an extent of 6.08 Guntas in respect of the portion of the Suit Schedule 'B' Property i.e., Suit Schedule 'D' Property and the same is not 9 OS No.25297/2023 binding on the Plaintiffs. During the pendency of the suit the Defendant No.3 has illegally constructed over the Suit Schedule 'B' & 'C' Properties and Suit Schedule 'D' Property by encroaching the common road 10 feet width towards southern side of the Suit Schedule 'B' Property which is the common passage and thereby blocking the entry to the Plaintiffs property remaining extent retained on the eastern side. The Defendant No.3 is not directed by an order of mandatory injunction to bring down the illegal construction of the Defendant No.3 in respect of the Plaintiffs share over the Suit Schedule 'B' & 'C' Properties and Suit Schedule 'D' Property and also remove the illegal construction constructed/blocked over the common passage width 10 feet towards southern side of the Suit Schedule 'B' Property, the Plaintiffs will be put to irreparable loss. The Defendant No.2 has retained the remaining extent after the alleged Sale Deed in favour of the Defendant No.3 and the same is not binding on the Plaintiffs as they are minor at the time of alienation.
When the Plaintiffs questioned the Defendant No.1 regarding the alleged transactions done along with her mother in favour of Late R. Muniswamy Reddy 10 OS No.25297/2023 for which she has not answered properly. The Plaintiffs have got their legitimate 2/4th share in the Suit Schedule 'A' 'B' and 'C' Properties and also the Suit Schedule 'D' Property. Therefore, the Plaintiffs have approached this Court to decree the suit.
3. Pursuant to summons, the Defendant No.2 & 3 have entered appearance through their counsel and the Defendant No.3 filed his written statement. Inspite of service of summons the Defendant No.1 remained absent, hence she was placed ex-parte.
4. The Defendant No.3 in his written statement specifically denied the plaint averments and contended that the Defendant No.3 is the absolute owner in possession and enjoyment of the portion Suit Schedule 'B' Property measuring to an extent of 6.08 Guntas and the another extent of 5 Guntas i.e., Suit Schedule 'C' Property in all measuring 11.08 Guntas, having purchased the same under two different Sale Deeds dtd: 6.12.2020 and 30.1.2020 respectively from the Defendant No.2. The Suit Schedule 'B' Property to an extent of 14 ¼ Guntas is phoded into 6.08 Guntas and 5 Guntas i.e., Suit Schedule 'C' Property respectively which are 11 OS No.25297/2023 purchased by the Defendant No.3 from the Defendant No.2 and the khatha in respect of the Item No.1 and 2 of the written statement Schedule Property is registered in the name of the Defendant No.3. After having obtained building license and approved building plan dtd. 5.11.2022 from the BBMP for the construction of building the Defendant No.3 has commenced the construction in the Suit Schedule 'C' Property which is portion of Suit Schedule 'A' & 'B' Properties, during the first week of March 2023 and the Defendant No.3 has already spent an amount of more than Rs.1,00,00,000/- towards the construction in the Suit Schedule 'C' Property. The Defendant has availed loan from SBI Bank for the purpose of construction of the building in Suit Schedule 'C' Property. The construction has commenced much before filing of the above suit by the Plaintiffs. The Plaintiffs with a malafide and mischievous intention have given mis-description of Suit Schedule 'B' & 'C' Properties. The Plaintiffs have knowledge and acquiescence of the fact that their mother Smt. G. Rathnamma has sold the Suit Schedule 'B' Property in favour of Dr. R. Muniswamy Reddy, the father of the Defendant No.2 under 12 OS No.25297/2023 registered Sale Deed dtd: 31.3.1971, wherein the Plaintiffs were also joined as the sellers, who were represented by their mother Smt. G. Rathnamma. However, the Plaintiffs have filed the above false and vexatious suit by making false, created and concocted statements. The Suit Schedule 'B' Property was sold way back in the year 1971 itself, the Plaintiffs have no manner of share, right, title or interest in the Suit Schedule 'B' Property and Suit Schedule 'C' Property. The above suit is filed after lapse of more than 52 years from the date of sale of the Suit Schedule 'B' Property and therefore, the suit claim is hopelessly barred by limitation. Hence, prayed to dismiss the suit with cost.
5. The Defendant No.2 has adopted the written statement filed by the Defendant No.3.
6. Based on the pleadings of the parties, this court has framed the following issues:
1. Whether the Plaintiffs prove that the schedule properties are joint family properties of Plaintiffs and Defendant No.1?13 OS No.25297/2023
2. Whether the Plaintiffs prove that, the Suit Schedule Properties are available for partition as on the date of the suit?
3. Whether the Plaintiffs further prove that, the Sale Deed dtd:
31.3.1971 executed in favour of father of the 2nd Defendant in respect of Suit 'B' Property is null and void and not binding on the Plaintiffs?
4. Whether the Plaintiffs further prove that, the Sale Deed dtd:
30.1.2020 executed in favour of 3rd Defendant in respect of Suit 'C' Property is null and void and not binding on the Plaintiffs?
5. Whether the Plaintiffs are entitled for 2/4th share in the Suit Schedule Properties?
6. Whether the Plaintiffs are entitled for possession of the Suit Schedule Properties?
7.Whether the suit is properly valued and the court fee paid is sufficient?
8. What order or decree?14 OS No.25297/2023
ADDITIONAL ISSUES DTD: 26.7.2024
1. Whether the Plaintiffs further prove that, during the pendency of this suit, the Defendant No.3 has illegally constructed building over the Suit 'B', 'C' and 'D' Schedule Properties by encroaching the common road 10 feet width towards southern side of Suit Schedule 'B' Property?
2. Whether the Plaintiffs further prove that, Sale Deed dtd:
6.12.2020 executed in favour of Defendant No.3 is not binding upon the Plaintiffs?
3. Whether the Plaintiffs are entitled for the relief of mandatory injunction as prayed for?
7. The Plaintiff No.1 got examined himself as PW.1 and got marked Ex.P.1 to Ex.P.22 documents and closed their side. The Defendant No.3(c) got examined as DW.1 and got marked Ex.D.1 to Ex.D.30 and closed their side.
8. Heard both sides. Perused the written arguments filed by the Learned Counsels for the Plaintiffs and Defendant No.3.
15 OS No.25297/20239. Perused the evidence and documents on record. On appreciation of the evidence on record, my findings on the above issues are as under:
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : In the Negative.
Issue No.5 : In the Negative.
Issue No.6 : In the Negative.
Issue No.7 : In the Affirmative. Addl.Issue No.1: In the Negative. Addl.Issue No.2: In the Negative.
Addl.Issue No.3: In the Negative. Issue No.8 : As per final order for the following:
REASONS
10. Issue No.1 to 4 & Addl. Issue No.2:-
In order to avoid repetition of facts, these issues have been taken up together for consideration.
11. The Plaintiffs have filed the present suit for partition and separate possession of their 2/4th share in respect of Suit Schedule 'A' to 'D' Properties 16 OS No.25297/2023 and also prayed the relief of declaration to declare that the Sale Deeds dtd: 31.3.1971, 30.1.2020, 6.12.2020 are not at all binding on them and the same are null and void. Further the Plaintiffs have also prayed mandatory injunction directing the Defendant No.3 to demolish the illegal construction made by him in respect of Plaintiffs share over the Suit Schedule 'C' & 'D' Properties and also removing the illegal construction over the common passage width of 10 feet towards Southern side of the Suit Schedule 'B' Property.
12. In this suit, inspite of service of summons the Defendant No.1 placed ex-parte and she did not contest the matter. The Defendant No.2 & 3 have appeared through their counsel, but the Defendant No.2 has not filed any written statement and adopted the written statement filed by the Defendant No.3.
13. It is the specific case of the Plaintiff herein is that their grand-father had three children namely R. Muniswamy Reddy, Dr. R. Muniswamy Reddy and Dr. R. Gurumurthy Reddy. However, the second 17 OS No.25297/2023 son Dr. R. Muniswamy Reddy was adopted by one Smt. Muniyamma who is the sister of grand-father of the Plaintiffs, hence they did not include him in this suit. Dr. R. Gurumurthy Reddy married Rathnamma and out of their wedlock the Plaintiffs and Defendant No.1 were born. The father of the Plaintiffs acquired immovable properties by way of Partition Deed dtd:
2.9.1970 and in that partition he has been allotted with Sy.No.86/1 measuring 03 Acre 23 ½ Guntas, in Sy.No.57 measuring 01 Acre 25 ½ Guntas and in Sy.No.9 measuring 2.00 Acres and he was in possession and enjoyment of the said properties. The Item No.2 & 3 of the above properties were sold in the year 1975-1976 to perform the marriage of Defendant No.1. The father of the Plaintiffs died on 30.12.1970 leaving behind his wife Rathnamma, the Plaintiffs and Defendant No.1. After the death of their father, mother Rathnamma was managing the properties left by their father. During the lifetime of Rathnamma, she was made Partition Deed dtd:
27.9.2018 among herself and her family members in respect of ancestral property left by Dr. R. Gurumurthy Reddy i.e., Sy.No.86/1 measuring 3.23½ Guntas and the same were developed by way 18 OS No.25297/2023 of residential flats and apartments were constructed and the same were transferred in their respective names as per the Partition Deed dtd: 27.9.2018. The mother of the Plaintiffs died on 15.4.2023 leaving behind the Plaintiffs and Defendant No.1 to succeed their estate and after her death when the Plaintiffs opened almerah and found the Partition Deed and in the said Partition Deed it came to know that some other survey numbers were partitioned among family members i.e., Plaintiffs and Defendant No.1 and Rathnamma i.e., Sy.No.195/1 measuring 0.23 Guntas as per Partition Deed dtd: 2.9.1970.
Admittedly, in the said Partition Deed the Suit Schedule 'A' Property was fallen to the share of father of the Plaintiffs as per Ex.P.8. Admittedly, in the Partition Deed dtd: 27.9.2018 the Suit Schedule 'A' Property was allotted to the father of the Plaintiffs has not been included. After verifying the revenue records the Plaintiffs found that their deceased mother Rathnamma and Defendant No.1 though they have no exclusive right, ownership have allegedly alienated the portion of Suit Schedule 'A' Property i.e., the Suit Schedule 'B' Property in favour of R. Muniswamy Reddy who is none other than the father 19 OS No.25297/2023 of Defendant No.2 on 31.3.1971. When the mother of the Plaintiffs and Defendant No.1 have no exclusive right over the Suit Properties, the alienation made by them in favour of father of Defendant No.2 is not binding on the Plaintiffs. The Defendant No.2 has sold the portion of Suit Schedule 'B' Property to an extent of 05 Guntas i.e., Suit Schedule 'C' Property in favour of Defendant No.3 on 30.1.2020 and the same is also not binding on the Plaintiffs. The Plaintiffs are not parties to the said Sale Deed. Further on 6.12.2020 the Defendant No.2 had again sold 06 Guntas 08 Anas of Suit Schedule 'B' Property i.e., Suit Schedule 'D' Property in favour of the Defendant No.3 which is also not binding on the Plaintiffs. During the pendency of this suit, the Defendant No.3 has illegally constructed building in the Suit Schedule 'C' & 'D' Properties by encroaching upon the common road width 10 feet towards the Southern side of the Suit Schedule 'B' Property which is common passage and thereby blocking the entry of the Plaintiffs property remaining extent retained on the Eastern side. Even though the Defendant No.2 has retained some portion of Suit Schedule 'B' Property, after alienating the portion of the same in favour of the 20 OS No.25297/2023 Defendant No.3, however, he is also not having any right over the said property. Accordingly, the Plaintiffs have approached the above reliefs.
14. Admittedly, as discussed above, the Defendant No.3 only contested the mother, but the Defendant No.2 has not properly contested the matter by cross-examining PW.1 and leading any evidence in this suit.
15. It is the specific case of the Defendant No.2 & 3 is that the alleged Partition Deed dtd: 2.9.1970 i.e., Ex.P.8 was very much well within the knowledge of the Plaintiffs long back and according to the said deed land in Sy.No.195/1 measuring 23 Guntas was allotted to the share of Dr. R. Gurumurthy Reddy who is the father of the Plaintiffs and Defendant No.1. After the death of Dr. R. Gurumurthy Reddy the mother of the Plaintiffs along with the Plaintiffs, who were minor and represented by their mother and natural guardian along with Defendant No.1 have sold portion of Sy.No.195/1 i.e., to an extent of 14 ½ Guntas out of 23 Guntas in favour of Dr. R. Muniswamy Reddy as per Sale Deed dtd. 31.3.1971 21 OS No.25297/2023 i.e., Ex.P.5 for legal necessities. The Plaintiffs who were parties to the said Sale Deed who were sellers and who are represented by their guardian and mother Smt. G. Rathnamma. Subsequent to death of Dr. Gurumurthy Reddy who was the owner/purchaser of Suit Schedule 'B' Property, his wife and children got partitioned the properties under the Partition Deed dtd: 5.4.1982 wherein the land bearing Sy.No.195/1, measuring to an extent of 11 ½ Guntas out of 23 Guntas has been allowed to the share of the Defendant No.2 and the revenue records in respect of the said land came to be transferred in his name. Even the said 11 ½ Guntas phoded and assigned new Sy.No.195/1A to an extent of 05 Guntas i.e., Suit Schedule 'C' Property and Sy.No.195/18 measuring 06 ½ Guntas ie., Suit Schedule 'D' Property. Thereafter this property had been converted as non-agricultural land as per the order dtd: 2.12.2019. Similarly, the remaining 6 ½ Guntas also become non-agricultural land as per order dtd: 3.7.2020. The Defendant No.2 sold the Suit Schedule 'C' & 'D' Properties in favour of Defendant No.3 as per Sale Deeds dtd: 31.1.2020 and 16.12.2020. Even the khatha is also changed in 22 OS No.25297/2023 the name of Defendant No.3. After purchasing of the property the Defendant No.3 had obtained building plan from the BBMP and commenced construction. When the construction has been commenced on prior to filing of the suit, the Plaintiffs knowing fully well about all these things filed the present suit.
16. In order to prove the averments of the plaint, the Plaintiff No.1 examined as PW.1 and got exhibited the documents at Ex.P.1 to Ex.P.22. Ex.P.1 is the Family Tree Affidavit and the Defendants have not at all disputed the relationship between the Plaintiffs and the Defendant No.1. Ex.P.2 is the Death Certificate of mother of the Plaintiffs Rathnamma. Ex.P.3 is the certified copy of Partition Deed dtd: 2.9.1970. Ex.P.4 are the Encumbrance Certificates. Ex.P.5 is the certified copy of Sale Deed dtd: 31.3.1971. Ex.P.6 is the certified copy of RTC in respect of Sy.No.195/1 for the period from 1971- 1972 to 1975-1976. Ex.P.7 is the Death Certificate of Gurumurthy Reddy. Ex.P.8 is the original Partition Deed dtd: 2.9.1970. Ex.P.9 is the certified copy of Partition Deed dtd: 27.9.2018. Ex.P.10 is the Certificate U/Sec.65B(4) of the Indian Evidence Act.
23 OS No.25297/2023Ex.P.11 is the Pendrive containing Ex.P.14 Photographs. Ex.P.12 & Ex.P.13 are the copies of Sale Deed dtd: 30.1.2020 and 16.12.2020. Ex.P.14 (a to g) to Ex.P.22 are the Photographs of the Suit Schedule 'B' Property.
17. It is the main argument of the Learned Counsel for the Plaintiffs is that the Suit Schedule Properties are the joint family properties of Plaintiffs and Defendant No.1 and the mother of the Plaintiffs and Defendant No.1 have no exclusive right over the Suit Schedule 'B' Property and the Sale Deed executed by Rathnamma and Defendant No.1 in favour of R. Muniswamy Reddy the father of the Defendant No.2 and subsequent Sale Deeds executed by the Defendant No.2 in favour of Defendant No.3 in respect of Suit Schedule 'C' & 'D' Properties without making Plaintiffs as parties to the said Sale Deeds are not binding on the Plaintiffs. The alleged Sale Deeds are illegal and against in the eye of law. Further the Learned Counsel for the Plaintiffs in his written arguments specifically stated that the Plaintiffs have come to know about the illegal Sale Deeds executed by their mother and Defendant No.1 24 OS No.25297/2023 after the death of their father and found the Ex.P.8 and other documents and then they questioned the Defendant No.1, but she did not gave proper answer, therefore, they constrained to file this suit. The Plaintiffs have placed sufficient materials to establish that the Suit Schedule Properties are the joint family properties of Plaintiffs and Defendant No.1. In order to show that the Plaintiffs and Defendant No.1 have exclusive right over the Suit Schedule Properties, no materials have been placed. Even the Defendant No.1 also placed ex-parte. Even DW.1 in the cross- examination impliedly admitted the case of the Plaintiffs. When the Plaintiffs are not parties to the Sale Deeds and without their consent all the Sale Deeds have been came to be existed, therefore, same are not binding on the Plaintiffs.
18. Further it is the argument of the Learned Counsel for the Plaintiffs is that the Defendant No.2 has sold the portion of Suit Schedule 'B' Property in favour of Defendant No.3 who is not at all stepped his shoe into the witness box. Even though his father has purchased the Suit Schedule 'B' Property from the mother of the Plaintiffs and Defendant No.1, he 25 OS No.25297/2023 should have explain that the Sale Deed executed in favour of his father is a valid Sale Deed. However, he has not placed sufficient materials in this regard. The admission of DW.1 clearly established that the Sale Deed dtd: 31.3.1971 in favour of the Defendant No.2 is null and void and not binding on the Plaintiffs. Further he has drawn the attention of this Court about the admission given by the DW.1 during the course of cross-examination, accordingly, he prayed to decree the suit.
19. It is the argument of the Learned Counsel for the Defendant No.3 is that the Plaintiffs were aware about the Sale Deed executed by their mother and Defendant No.1 as per Ex.P.5 long back, at the time of said Sale Deed the age of the Plaintiff No.1 is 17 years and the age of the Plaintiff No.2 is 15 years. Under Article 60(a)of the Limitation Act, the period of limitation to set aside a transfer of property made by the guardian of a ward is three years when they attains majority. The cause title of the plaint discloses that when the suit was filed in the year 2023 the Plaintiff No.1 was aged 69 years and Plaintiff No.2 was aged 67 years. When the Plaintiff 26 OS No.25297/2023 No.1 had attained the age of majority in the year 1972 and the Plaintiff No.2 had attained majority in the year 1975 the cause of action if any for the Plaintiffs to seek for setting aside the Sale Deed dtd:
31.3.1971 expired and extinguished in the year 1975 in respect of Plaintiff No.1 and in the year 1978 in respect of Plaintiff No.2. The Plaintiff No.1 had instituted the above suit after 48 years from the date of his attaining majority and similarly the Plaintiff No.2 has also instituted the above suit after 45 years from the age of his majority. When the Plaintiffs have instituted the present suit after lapse of 52 years from the date of alleged Sale Deed they cannot entitle for any relief as prayed in this suit, as the suit is hopelessly barred by law of limitation. Further he argued that the Plaintiffs cannot say that they came to know about Ex.P.8 recently in the year 2023 as in Ex.D.1 i.e., Joint Development Agreement dtd:
6.10.2016 also there was a reference in respect of Ex.P.8 Partition Deed. Further argued that in Ex.D.2 i.e., the Sale Deed dtd: 21.8.1975 also which was executed by the mother of the Plaintiffs in favour of one Gowramma in respect of Item No.4 of the Suit Schedule 'B' Property of Ex.P.8 it was observed that 27 OS No.25297/2023 the father of the Plaintiffs got this property under Partition Deed dtd: 10.9.1970. Further also argued that in Ex.D.3 i.e., Sale Deed dtd: 15.6.1977 which was executed by the mother of the Plaintiffs also by the Plaintiff No.1 & 2 in favour of one Radhakrishna also the Ex.P.8 had been referred. Even PW.1 admitted in the cross-examination about the alienation made by the Plaintiffs and their mother in respect of Ex.D.1 to Ex.D.3 properties. Therefore, it is clear that the Plaintiffs have knowledge and acquiescence of Ex.P.8 Partition Deed way back in the year 1975, 1977 and 2016 respectively. Now they are falsely stated that recently they came to know about the Ex.P.8 on 24.6.2023, therefore, the suit of the Plaintiffs is hopelessly barred by law of limitation. There is no cause of action to file this suit and the cause of action as stated in the suit is imaginary one. Accordingly, he prayed to dismiss this suit.
20. The Learned Counsel for the for the Defendant No.3 has relied on the following decisions:
1) (2001) 6 SCC page 163, Vishwambar and others V/s Lakshminarayan and others.28 OS No.25297/2023
2) AIR 1999 SC 876 Bailochan Karan V/s Basanth Kumari Naik and others.
3) Laws (GJH) 2000-7-11 (High Court of Gujarat) Jadav Prabat Bhai Jeghabhai V/s Parmar Karsanbhai Dhulabhai.
4) AIR 2018 Orissa 10, Malatilatha Mishra V/s Keshab Chandra Mohapatra.
5) AIR 2009 Bombay 27 Abdul Kayyum V/s Puranalal Harinarayan Jaiswall.
6) 1995(1) SCC 198 Ramti Devi V/s Union of India.
7) AIR 2003 Allahabad 276 Smt. Dayawati and Others V/s Madan Lal Varma and Others.
8) AIR 1977 SC 2421, T. Arvindandam V/s Satyapal and another.
9) (2004) 3 SCC 137 Sopan Sukhdeo Sable and others V/s Assistant Charity Commissioner and others.
10) (2007) 5 SCC 614 Hardesh Ores (P) Limited V/s Hede and Company.
21. The Defendant No.3(c) who is the partner of Defendant No.3 examined as DW.1 and got exhibited the documents at Ex.D.1 to Ex.D.30. Admittedly, this Court has to look into the important documents which 29 OS No.25297/2023 produced by the Defendants in this suit. Ex.D.8 serious are Encumbrance Certificates of the Schedule Property reveals that from the date of purchase of the portion of Suit Schedule 'C' & 'D' Properties by the Defendant No.3(a) to (d) their names have been clearly appeared in these documents. Further Ex.D.9 series i.e., RTC of Suit Schedule 'A' Property for the year 2015 to 2024-2025 reveals that the name of the Defendant No.2 has been mentioned in these documents in respect of 11 Guntas 08 Anas and the remaining 11 Guntas Anas of Suit Schedule 'B' Property is standing in the name of one Guruva Reddy. Further the RTC also reveals that the Defendant No.2 Surendranath is the owner of 06 Guntas 08 Anas and 05 Guntas of division on 12.3.2020. Further Ex.D.6 & Ex.D.7 which are certified copies of Sale Deeds dtd: 30.1.2020 & 16.12.2020 reveals that the Defendant No.3 has purchased the Suit Schedule 'C' & 'D' Properties from the Defendant No.2 and accordingly the name of Defendant No.3 has been continued to mention in the RTC and as well as Encumbrance Certificates. Further Ex.D.4 produced by the Defendant No.3 reveals that he has availed loan from the SBI Bank 30 OS No.25297/2023 for construction of building over the Suit Schedule 'C' & 'D' Properties by depositing title deeds. The Ex.D.1 is the important document marked through confrontation during the course of cross-examination of PW.1 and as argued by the Learned Counsel for the Defendant No.3 it is the Joint Development Agreement dtd: 6.12.2018 which entered into between the mother of the Plaintiffs, Plaintiffs and their family members and the Defendant No.1 with one Srikanth Dommaraju of Vaishnav Developers in respect of Item No.1 of Schedule 'B' Property of Ex.P.8. As submitted by the Learned Counsel for the Defendant No.3 at para No.3 of this document it is mentioned that whereas R. Gurumurthy Reddy acquired the Schedule Property by virtue of a deed of partition registered as document No.2886/1970-71. Further on careful perusal of Ex.D.1 it is clear that this document has been drafted by the Plaintiff No.1 himself and he has signed as drafted by him and also signed as one of the party to this Joint Development Agreement. Therefore, it can be easily presumed that as on the date of this agreement dtd:
6.10.2016 only the Plaintiffs were very much knowledge about the Sale Deed executed by 31 OS No.25297/2023 Rathnamma the mother of the Plaintiffs and Defendant No.1. Even in Ex.D.2 Sale Deed it is clearly mentioned that G. Rathnamma the mother of the Plaintiffs and also guardian of the Plaintiffs has executed this document. Admittedly, in Ex.D.2 it is clearly mentioned that the father of the Plaintiffs has got this property under Partition Deed dtd:
10.9.1970. More interestingly, the Ex.D.3 is the prime document i.e., the certified copy of Sale Deed dtd: 15.6.1977 which is executed by G. Rathnamma the mother of the Plaintiffs and also the Plaintiff No.1 & 2 in favour of one Radhakrishna in respect of Item No.3 of Schedule 'B' Property of Ex.P.8. Admittedly, in this document also it is clearly observed about the Partition Deed dtd: 10.9.1970. Further it is also clearly mentioned in Ex.D.3 that on 2.9.1970 Muniswamy Reddy and his 08 sons as one branch and Dr. Gurumurthy Reddy and his two sons as the other branch, got all the joint family properties divided into two separate blocks and the said deed of partition is registered. Further observed that the property morefully described in the schedule hereunder came to be allotted to this share of Dr. R. Gurumurthy Reddy and his two sons i.e., second and 32 OS No.25297/2023 third vendors herein and the same as shown as Item No.4 of the Schedule 'B' in the said Deed of Partition. However, Dr. R. Gurumurthy Reddy died on 30.12.1970 and after his death the present Plaintiffs along with their mother Rathnamma all have jointly enjoyment of the Suit Property in their own right.
However, the vendors on account of their family necessities and for the education of the vendor No.3 decided to sell the same.
22. PW.1 has admitted in the cross-examination about the alienation made by them and their mother in respect of properties involved in Ex.D.1 to Ex.D.3. Therefore, this Court is of the considered opinion that the Plaintiffs have knowledge and acquiescence of the Ex.P.8 way back in the year 1975 as per Ex.D.2, in the year 1977 as per Ex.D.3 and also in the year 2016 as per Ex.D.1 respectively. Hence, the contention of the Plaintiffs that they came to know about the Ex.P.8 Partition Deed and Ex.P.5 Sale Deed about alienation made by their mother and Defendant No.1 as they have illegally sold the portion of Suit Schedule 'A' Property which was allotted to their father as per Ex.P.8 and their mother 33 OS No.25297/2023 and Defendant No.1 have purposefully not included the Suit Schedule 'A' Property in Ex.P.9 i.e., Partition Deed dtd: 27.9.2018 entered between the Plaintiffs, Defendant No.1 and their late mother and other family members etc., cnanot be believed. Therefore, prima-facie the Plaintiffs are not entitle for any share in the Suit Schedule Properties as prayed for.
23. It is the specific case of the Defendant No.2 & 3 is that after the death of Dr. R. Gurumurthy Reddy his wife along with the Plaintiffs herein who are minors and represented by their mother and the natural guardian sold the Suit Schedule 'B' Property in favour of the father of Defendant No.2 as per Ex.P.5. When the Plaintiffs were parties to Ex.P.5, now they cannot challenge the said Ex.P.5 Sale Deed after long gap. As discussed above, the records produced by the Defendants reveals that after father of the Defendant No.2 purchased the Suit Schedule 'B' Property, himself and his family members got partitioned the same and later the said Sy.No.195/1 divided and assigned New Sy.No.195/1A measuring to an extent of 05 Gutnas and Sy.No.195/18 measuring to an extent of 6.08 Guntas i.e., Suit 34 OS No.25297/2023 Schedule 'C' & 'D' Properties. Later the Defendant No.2 has sold the same in favour of Defendant No.3. Even the documents produced by the Defendant, particularly Ex.D.27 to Ex.D.30 reveals that after obtaining proper building plan and license only the Defendant No.3 put up construction in these properties.
24. Coming to the point of limitation canvassed by the Learned Counsel for the Defendant No.3 is concerned, the Learned Counsel for the Plaintiffs submitted that the Plaintiffs, at the time of Ex.P.5 Sale Deed both Plaintiffs are minors and without their consent and knowledge only their mother and Defendant No.1 have sold the Suit Schedule 'B' Property in favour of the father of Defendant No.2 and recently when the mother of the Plaintiffs died they came to know about the alleged Partition Deed and as well as alienation made by their mother etc., therefore, the cause of action as stated in the plaint is proper and correct and their suit is within the period of limitation.
35 OS No.25297/202325. As discussed above and as argued by the Learned Counsel for the Defendant No.3, Ex.P.5 is dtd: 31.3.1971 and at that time the Plaintiff No.1 shown as 17 years and the Plaintiff No.2 shown as 15 years, under Article 60(A) of Limitation Act for setting aside the Ex.P.5 Sale Deed was within 03 years from the date of both Plaintiffs attaining majority. Further as argued by the Learned Counsel for the Defendant No.3 both Plaintiff No.1 & 2 have attained majority in the year 1972 and 1975 respectively. Therefore, both should have filed the suit for cancellation of Ex.P.5 Sale Deed within 03 years from the date of their attaining majority. However, both Plaintiff No.1 & 2 have instituted this suit after 48 years and 45 years after their attaining majority. Hence, this Court opines that the suit of the Plaintiffs is barred by law of limitation as per Article 60(A) of Limitation Act.
26. It is pertinent to note here that, by considering the admission given by PW.1 during the course of cross-examination, the Plaintiffs have knowledge and acquiescence of Ex.P.8 way back in the year 1975 as per Ex.D.2, 1977 as per Ex.D.3 and 2016 as per Ex.D.1 respectively. When prima-facie 36 OS No.25297/2023 the documents produced by the Plaintiffs i.e., Ex.P.5, Ex.P.8, Ex.D.1 to Ex.D.3 reveals that the Plaintiffs have knowledge about Ex.P.5 Sale Deed first time in the year 1975 itself by falsely pleaded in the cause of action for the purpose of this suit.
27. Coming to the decisions which relied upon by the Learned Counsel for the Defendant No.3 herein with regard to suit of the Plaintiffs is barred by law of limitation is concerned, I would like to reproduce the relevant portions of the decisions as under.
In the decision reported in (2001) 6 SCC page 163, Vishwambar and others V/s Lakshminarayan and others the Hon'ble Apex Court held thus:
A. Hindu Minority and Guardianship Act, 1956 - Ss. 8(1), 8(2), 8(3) and 8(4) - Challenge to alienation by natural guardian of property of minor without court sanction and without legal necessity
- Such alienation is voidable and not void ab initio - Proper relief must be sought and within limitation period - Where Plaintiffs had filed a suit for possession contending that Sale 37 OS No.25297/2023 Deeds executed by their mother-
guardian were void, inoperative and not binding on them as alienation had been affected without court permission under S.8(2) and without legal necessity, but had added a prayer for setting aside the Sale Deeds only after expiry of the limitation period under Art.60 held, the Sale Deeds were voidable under S.8(3) subject to Art. 60 of Limitation Act - Therefore, even though trial court and first appellate court had concurrently found that there was no legal necessity for the transfer, the suit of the appellant-plaintiffs was rightly dismissed - High Court rightly dismissed their second appeal -
Limitation Act, 1963, Arts. 60 and 65
- Alienation by guardian - Suit for possession - Civil Procedure Code, 1908, Or.2 R.2 Or.6 Rr.2 & 17 -
Pleading - Proper relief - Amendment.
28. Further held thus:
9. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-38 OS No.25297/2023
guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. The question is in such circumstances are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guradianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the 39 OS No.25297/2023 Court, transfer by sale any part of the immovable property of the minor. In sub-section (3) of the said section it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the 40 OS No.25297/2023 plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff no.2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff no.1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not 41 OS No.25297/2023 challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation.
29. In the decision reported in AIR 1999 SC 876 Bailochan Karan V/s Basanth Kumari Naik and others the Hon'ble Apex Court held thus:
5. We are unable to accept this contention. Section 60 of the Limitation Act, 1963 provides for a suit to set aside a transfer of property made by the guardian of a ward. The starting point of limitation is the attaining of majority by the ward and the period of limitation is three years.....
6. In the present case the maximum period of limitation available to the appellant was only three years from the date of his attaining majority, in other words, cessation of the disability. This position has been considered by this Court in Darshan Singh & Ors. v.
Gurdev Singh, [1994] 6 SCC : (1994 AIR SCW 4085).
42 OS No.25297/202330. In the decision reported in Laws (GJH) 2000-7-11 (High Court of Gujarat) Jadav Prabat Bhai Jeghabhai V/s Parmar Karsanbhai Dhulabhai the Hon'ble High Court of Gujarat held thus:
12. Insofar as the conclusion of the trial Court with regard to bar of limitation in filing the suit is concerned, we find that it is quite justified. As per the provisions of Article 60 the period of limitation prescribed in the Limitation Act, 1963 is three years from the date from Ward has attained majority. It provides that the Ward who has attained the age of majority has to file suit to set aside the transfer of property sale by his guardian within a period of three years from the date of majority. The trial Court has, rightly, placed reliance on Article 60 which describes that period of limitation from the date of Ward attaining majority for filing the suit to set aside the transfer of property by his Guardian.
31. Further held thus:
43 OS No.25297/2023To such a suit the provisions of Article 60 apply which relate to suit to set aside the transfer of properties made by the Guardian of a Ward by the Ward who has attained majority and the period prescribed is three years commencing on the date on which the Ward attains majority. In that case also, the suit was instituted beyond the period of limitation of three years though the impugned alienation by the guardian was found to be not for legal necessity, and therefore, was bad, legal remedy is required to be taken within the period of limitation. This decision, fully supports the decision of Gurdev Singh (supra).
34. Section 6 of the Limitation Act, specifically, provides the right of a minor to initiate legal action on completion of three years after the legal disability on account of the minority would cease. The combined reading of Sees. 6 and 8 and Article 60, the suit, in fact situation like case on hand, is required to be filed within a period of three years from the date of attaining the majority.44 OS No.25297/2023
Section 6 of the Limitation Act provides a person entitled to sue at the time from which the prescribed period is to be reckoned a minor institute the suit within the same period after the disability has ceased as would otherwise, has been allowed from the time specified therefor in the third column of the Schedule.
32. In the decision reported in AIR 2018 Orissa 10, Malatilatha Mishra V/s Keshab Chandra Mohapatra, the Hon'ble High Court of Orissa held thus:
Suit filed at age of 42 years i.e., not within 03 years of attaining majority - Barred by limitation. AIR 2016 SC 1966.
Suit filed long after 03 years of attaining majority by Plaintiff - Right of Plaintiff on said property already extinguished on completion of 03 years from date of majority - No right surviving on date of filing of suit - Relief of possession cannot be granted to Plaintiff.45 OS No.25297/2023
33. In the decision reported in AIR 2009 Bombay 27 Abdul Kayyum V/s Puranalal Harinarayan Jaiswall the Hon'ble High Court of Bombay held thus:
Limitation Act (36 of 1963), Art.60 - Limitation - Suit for setting aside alienation made by father of Plaintiff - Specific plea that property of minor was sold without obtaining permission of District Judge - Case would fall under Art. 60 - Case filed beyond period of three years from date of minor attaining majority - Is barred by limitation.
34. Admittedly, the principles of the above all decisions are squarely applicable to the case on hand and the arguments canvassed by the Learned Counsel for the Defendant No.3.
35. As discussed above, it is the specific case of the Plaintiffs herein is that under Partition Deed dtd:
10.9.1970 the Suit Schedule 'A' Property fallen to the share of their father and their mother and Defendant No.1 have illegally alienated the Suit Schedule 'B' Property in favour of father of Defendant No.2 i.e., 46 OS No.25297/2023 Muniswamy Reddy on 31.3.1971 without their consent and knowledge and even their mother had no right to alienate the same and the said alienation and Partition Deed have been recently came to know on 26.4.2023, after the death of their mother and after opening the almirah of their mother etc. As discussed above, the Plaintiffs have not challenged the above said Sale Deed within 03 years from the date of their attaining majority, even though they were having very much have knowledge about the said alienation on 31.3.1971 itself as per Ex.P.5.
Further as discussed above and also as admitted by the PW.1, the Plaintiffs have knowledge and acquiescence of Ex.P.8 way back in the year 1975, 1977 and 2016. Therefore, in view of the principles of the above decisions the present suit is primarily barred by law of limitation and the Plaintiffs are not entitled for any reliefs as prayed in this suit. Further in view of the principles of the above decisions the Plaintiffs ought to have challenged the alienation made by their mother and Defendant No.1 within 03 years from the date of their attaining majority. Even though the Plaintiffs were very much knowledge about the alienation made by their mother and 47 OS No.25297/2023 Defendant No.1 way back in the year 1975 itself as per Ex.P.5, the present suit has been filed in the year 2023, hence Section 60 of Limitation Act squarely attracted to the case on hand. When the Plaintiffs have lost their right in the year 1975 and 1978 itself, they filed this suit in the year 2023, as such their rights on the Suit Schedule Properties already extinguished on completion of 03 years from the date of their attaining majority. Therefore, no right survive on them to file this suit. Therefore, the reliefs of declaration and possession of the above said Sale Deeds and as well as relief of possession as prayed by the Plaintiffs cannot be granted in view of the principles of the decisions referred above.
36. Further in the decision reported in 1995(1) SCC 198 Ramti Devi V/s Union of India the Hon'ble Apex Court held thus:
B. Limitation Act, 1963 - Art. 59
- Suit for declaration of ownership and possession of house against a person who had sold the same by a registered deed - Execution and registration of the Sale Deed having come to the knowledge of the 48 OS No.25297/2023 Plaintiff on the very date on which the same was executed - Suit filed more than three years after that date, held time barred.
As seen, when the appellant had knowledge of it on January 29, 1949 itself the limitation began to run from that date and the three years limitation has hopelessly been barred on the date when the suit was filed. It is contended by Shri V.M. Tarkunde, learned senior counsel for the appellant, that the counsel in the trial court was not right in relying upon Article 59. Article 113 is the relevant Article. The limitation does not begin to run as the sale deed document is void as it was executed to stifle the prosecution. Since the appellant having been remained in possession, the only declaration that could be sought and obtained is that she is the owner and that the document does not bind the appellant. We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre-49 OS No.25297/2023
existing debts and it is a registered document. Apart from the prohibition under S.92 of the Evidence Act to adduce oral evidence to contradict the terms of the recital therein, no issue in this behalf on the voidity of the sale-deed or its binding nature was raised nor a finding recorded that the sale-deed is void under S.23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action has arisen on January 29, 1947, the date on which the sale-deed was executed and registered and the suit was filed on July 30, 1966, the suit is hopelessly barred by limitation. The courts below, therefore, were right in dismissing the suit. The appeal is accordingly dismissed with costs.50 OS No.25297/2023
37. In this decision the Hon'ble Apex Court clearly held that when the party had purchased the property under valuable Sale Deed and when the Plaintiff has not challenged the said Sale Deed within 03 years from the date when the cause of action had accrued, the suit filed beyond the period of limitation, the said suit was not at all maintainable and liable to be dismissed. Here in this case also in the year 1970 itself the Sale Deed had been executed by the mother of the Plaintiffs and Defendant No.1 and the Plaintiffs have not challenged the same within 03 years from the date of their attaining majority. On the other hand, they filed after long gap of more than 52 years, therefore, the suit filed by the Plaintiffs is not at all maintainable. Hence, question of granting the relief of declaration with respect to cancellation of said Sale Deed is not at all maintainable. The suit is not filed within 03 years from the date of cause of action.
38. In the decision reported in AIR 2003 Allahabad 276 Smt. Dayawati and Others V/s Madan Lal Varma and Others also the Hon'ble High Court of Allahabad held thus:
51 OS No.25297/2023C. Transfer of Property Act (4 of 1882), S.53A - Part performance of -
Bonafide purchasers for value -
Having no knowledge of defect in title of seller - Are protected by provisions of S.53-A - Sale Deed in their favour cannot be declared to be void.
39. According to above decision if the subsequent purchaser proved that they have purchased the property for value and there is no evidence that they had knowledge of a defect in title of their vendors, they have been protected by the provision of Section 53-A of Transfer of Property Act and the Sale Deed in their favour cannot be declared to be void." Here in this case also the Defendant No.3 has proved by placing sufficient materials that he had no knowledge of any defect title of father of Defendant No.2 or his vendors etc. Even there is no cogent evidence placed by the Plaintiffs to show that in the year 2023 only they came to know that without having right their mother had sold the Suit Schedule 'B' Property wherein they have equal right. On the other hand, the Defendant No.3 is able to prove that the Plaintiffs were having knowledge 52 OS No.25297/2023 regarding 1970 Sale Deed and subsequent Sale Deeds way back in the year 1975 and 1978 itself. Therefore, it is clear that at the relevant stage, when the Defendant No.3 started to develop the purchased land only the Plaintiffs have filed this suit. Hence, they have been protected by provisions of Section 53- A of Transfer of Property Act and the Sale Deed in favour of Defendant No.3 cannot be declared as void.
40. In another decision reported in AIR 1977 SC 2421, T. Arvindandam V/s Satyapal and another the Hon'ble Apex Court held thus:
The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII R. 11 C.P.C.
taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible 53 OS No.25297/2023 law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."
41. Admittedly, in the case on hand also the plaint itself is manifestly meritless and it does not disclose a clear right to sue merely clever drafting has created illusion of cause of action. Further the Plaintiffs without having any right over the Suit Schedule Properties have filed the present suit by falsely stating that in the year 2023 only they came to know about Partition Deed and Sale Deed and then only they came to know about the illegal sale has been made by their mother and Defendant No.1 in respect of Suit Property etc. Therefore, they are not entitle for the reliefs as prayed in this suit.
54 OS No.25297/202342. In the decision reported in (2004) 3 SCC 137 Sopan Sukhdeo Sable and others V/s Assistant Charity Commissioner and others also the Hon'ble Apex Court held thus:
Order VII Rule 11 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word 'shall' is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.
The basic question to be decided while dealing with an application 55 OS No.25297/2023 filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code.
43. Further in the decision reported in (2007) 5 SCC 614 Hardesh Ores (P) Limited V/s Hede and Company the Hon'ble Apex Court held thus:
25. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the 56 OS No.25297/2023 averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this court in Liverpool & London S.P. & I Association Ltd., V/s M.V. Sea Success I and another : (2004) 9 SCC 512 and Popat and Kotechah Property Vs. State Bank of India Staff Association (2005) 7 SCC 510.
44. Admittedly, as observed by the Hon'ble Apex Court in the above decisions with the materials placed by the parties, the Court find that prima-facie 57 OS No.25297/2023 the plaint is barred by law of limitation. From the statement in the plaint itself the Court can reject the plaint under Order VII Rule 11 of CPC. Admittedly, in view of the discussions made above and also facts and circumstances of this case, it is clear that the plaint not discloses the cause of action, as the cause of action as stated by the Plaintiffs in the plaint is illusive cause of action for the purpose of this suit. Even though the Plaintiffs were having knowledge about the 1970 Sale Deed and as well as Partition Deed in respect of Suit Schedule Property in the year 1970 itself, they kept quite for a long period and when recently the Defendant No.2 sold the portion of Suit Schedule 'B' Property in favour of the Defendant No.3 only this this suit by stating false cause of action. Therefore, it is clear that the suit is barred by law of limitation.
45. In view of the discussions made above, this Court is of the opinion that the Plaintiffs have failed to prove that the Suit Schedule Properties are still joint family properties of Plaintiffs and Defendant No.1. Even the Plaintiffs also failed to establish by placing sufficient materials that the Suit Schedule 58 OS No.25297/2023 Properties are now available for partition as on the date of filing of the suit. There is no materials on behalf of the Plaintiffs to establish that the Sale Deed dtd: 31.3.1971 executed in favour of the father of Defendant No.2 by the mother of the Plaintiffs and Defendant No.1 in respect of Suit Schedule 'B' Property is null and void and not binding on the Plaintiffs.
46. When the Plaintiffs have failed to establish that the Sale Deed dtd: 31.3.1971 is null and void and not binding on the Plaintiffs, question of holding that the Sale Deeds dtd: 30.1.2020 and 6.12.2018 executed by the Defendant No.2 in favour of Defendant No.3 in respect of Suit Schedule 'C' & 'D' Properties are null and void and not binding on the Plaintiffs does not arise. Therefore, I answer Issue No.1 to 4 and Additional Issue No.2 in the Negative.
47. Additional Issue No.1:-
During the pendency of the suit the Plaintiffs have made an amendment to the plaint and sought the relief that during the pendency of this suit the 59 OS No.25297/2023 Defendant No.3 has illegally constructed building over the Suit Schedule 'B', 'C' & 'D' Properties by encroaching upon the common road to an extent of 10 feet towards Southern side of the Suit Schedule 'B' Property. The Plaintiffs have very much relied to prove this fact as per Ex.P.19 to Ex.P.22 Photographs. Further it is the contention of the Learned Counsel for the Plaintiffs is that Ex.D.29 to Ex.D.30 produced by the Defendant No.3 reveals that during the pendency of the suit they have obtained sanction plan and license and the same has been admitted by DW.1 in his cross-examination. Even DW.1 clearly admitted that in Ex.D.28 Sketch towards Southern side 10 feet common passage is not at all shown. Therefore, the Plaintiffs have failed to establish the fact of encroachment of 10 feet common passage by the Defendant No.3.
48. Admittedly, the Learned Counsel for the Defendant No.3 during the course of arguments submitted that the Plaintiffs have not placed any materials to prove this issue, as they have not placed any materials in this regard. In this suit, after closing the arguments of the parties the Learned Counsel for 60 OS No.25297/2023 the Plaintiffs filed an application to appoint the Court Commissioner to find out the encroachment made by the Defendant No.3 over the said common passage and this Court rejected the said application on the ground that for the purpose of collection of evidence the Court cannot appoint the Court Commissioner. Further opined that, if at all the Plaintiffs are able to prove that they are entitled for share in the Suit Properties and the alleged Sale Deeds are null and void and not binding on them, then they can take their share by demolishing the alleged construction by the Defendant No.3 in the Final Decree Proceedings also.
49. As discussed above, the Plaintiffs have failed to prove that they are entitle for share in the Suit Schedule 'B' Property and the Sale Deed made by their mother and the Defendant No.1 in favour of the father of Defendant No.2 is null and void etc. When the Plaintiffs are not entitled for such reliefs, they cannot say that the Defendant No.3 has illegally constructed building over the Suit Schedule 'B', 'C' & 'D' Properties by encroaching common road 10 feet. Further there is no sufficient materials produced by 61 OS No.25297/2023 the Plaintiffs herein that the Defendant No.3 had encroached the common passage. Even there is no date specified in the plaint at on which date the Defendant No.3 has encroached the alleged common passage. The prayer made regarding mandatory injunction is also clear that in order to give unnecessary troubles to the Defendant No.3, this prayer has been made. On the other hand, it is the specific contention of the Learned Counsel for the Defendant No.3 is that the Plaintiffs have no documents to show that they have land on the Southern side of Sy.No.195/1. On the other hand, as per Ex.P.5 rights in respect of 10 feet passage towards the Southern side has been given to the purchaser therein i.e., Muniswamy Reddy by the Plaintiffs and their mother along with Suit Schedule 'B' Property.
50. Admittedly, on careful perusal of the recitals of Ex.P.5 also it is clear that the above submission of the Learned Counsel for the Defendant No.3 is clearly supporting. Hence, looking from any angle, this Court opines that the Plaintiffs are not entitled for the relief of mandatory injunction as prayed for.
62 OS No.25297/202351. That apart, the Defendant No.3 has produced Ex.D.28 & Ex.D.29 to show that he is constructing his building as per the building sanction plan and license issued by the BBMP. No doubt, as of now there is no materials from the side of the Plaintiffs to show that the Defendant No.3 by violating the conditions of Ex.D.28 & Ex.D.29 has constructed his building by encroaching 10 feet common passage etc. Even if the Plaintiffs wanted any relief with regard to encroachment of common passage or deviation of building plan and license it is open for the Plaintiffs to approach the competent authority, as the competent authority is empowered to take suitable action under the BBMP Act and Karnataka Municipal Laws. Hence, the Plaintiffs are not entitled for the relief of mandatory injunction as prayed for. Accordingly, the Additional Issue No.1 & 3 are answered in the Negative.
52. Issue No.5 & 6:-
In view of the details discussions and findings given by this Court on foregoing issues, it is clear that the Plaintiffs are not entitled for any reliefs as 63 OS No.25297/2023 prayed in this suit. Accordingly, I answer these Issues in the Negative.
53. Issue No.7:-
The Defendant No.3 has taken up contention in his written statement that the court fee paid by the Plaintiffs is not proper and correct and the suit is not properly valued etc. Admittedly, the Plaintiffs have initially filed the suit for the relief of partition and separate possession of their 2/4th share in the Suit Schedule Properties and consequently they prayed the relief of declaration to declare that the alleged Sale Deeds dtd: 31.3.1971, 30.1.2020 and 6.12.2020 are not binding on them and later they prayed the relief of mandatory injunction. Initially, for the relief of partition and separate possession and declaration they have paid court fee of Rs.250/-
under Section 35(2), 24(d) & 24(d) of Karnataka Court Fee & Suits Valuation Act. Later on 5.4.2024 again they included additional Schedule Properties and in this regard they have paid the additional/deficit court fee of Rs.50/- for prayer (c) (c1) (c2) of plaint for Rs.25/- each i.e., Rs.50/-. Admittedly, on careful perusal of all the above 64 OS No.25297/2023 provisions of Karnataka Court Fee & Suits Valuation Act and the prayer made in the plaint, this Court opines that the court fee paid by the Plaintiffs with regard to prayer made in the plaint appears to be proper and correct. Even the Defendant No.3 also has not at all seriously disputed about the court fee paid by the Plaintiffs and the valuation made by the Plaintiffs with regard to valuation made in respect of the Suit Properties. Hence, I answer Issue No.7 in the Affirmative.
54. Issue No.8:-
In view of the findings on the above issues, the suit of the Plaintiffs deserve to be dismissed with cost. Accordingly, I proceed to pass the following:
ORDER The suit of the Plaintiffs is hereby dismissed with costs.
Draw decree accordingly.
(Dictation given to the Stenographer, transcribed by her, after correction, signed and pronounced by me in the open court on this the 6th day of February 2026).Digitally signed by
NARAYANAPPA NARAYANAPPA SRIPAD SRIPAD Date: 2026.02.11 13:40:53 +0530 [Sri. Sreepada N] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73).65 OS No.25297/2023
SCHEDULE 'A' PROPERTY All the part and parcel of the land bearing Sy.No.195/1, measuring 00 Acres 23 Guntas (0.23), situated at Hoodi Village, K.R.Puram Hobli, formerly Bangalore South Taluk, now Bangalore East Taluk and bounded on:
East by : Kaverappa's dry land. West by : Government Water Channel.
North by : School and land belonging to Choultry. South by : Lakshmaiah Reddy's land.
SCHEDULE 'B' PROPERTY All the part and parcel of the land bearing Sy.No.195/1, measuring 00 Acre 14 1/4 Guntas (0.14 1/4) out of 00 Acre 23 Guntas, situated at Hoodi Village, K.R.Puram Hobli, formerly Bangalore South Taluk, now Bangalore East Taluk, and bounded on:
East by : Remaining land retained by us. West by : Government Road and Government Channel. North by : Land of Appanna Reddy's. South by : Road and Lakshmaiah Reddy's Land and towards sough side 10 feet common Road for ingress and egress towards East to West.66 OS No.25297/2023
SCHEDULE 'C' PROPERTY All the part and parcel of the undeveloped converted land bearing Sy.No.195/1A, Bangalore Palike Katha bearing Sl.No.1303, Survey Number 195/1A, measuring 05 Guntas, converted vide order dated. 2.12.2019 in official bearing No.ALN(E.K.H.W) SR21/2019-2020, passed by Special Deputy Commissioner, Bangalore East Taluk, Bangalore, situated at Hoodi Village, K.R.Puram Hobli, Bangalore East, Bangalore and bounded on:
East by : Road. West by : Remaining land in Survey Number 195/1A.
North by : Land bearing Survey Number 195/1B. South by : Land bearing Survey Number 195/2B.
SCHEDULE 'D' PROPERTY All the part and parcel of the converted land bearing Sy.No.195/18, Bangalore Mahanagara Palike Katha bearing Sl.No.1803, Survey Number 195/18, measuring 6.08 Guntas, converted vide order dated. 3.7.2020 in official Memorandum bearing No.ALV.(E.K.H.W).SR 01/2020-2021, passed by the Deputy Commissioner, Bangalore East, Bangalore, situated at Hoodi Village, K.R.Puram Hobli, Bangalore East, Bangalore and bounded on:
East by : Land in the Survey Number 195/1A. West by : Road and thereafter Sy.No.7. North by : Land bearing Survey Number 195/1B. South by : Land bearing Survey Number 195/2C & 195/2B.67 OS No.25297/2023
WRITTEN STATEMENT SCHEDULE PROPERTY Item No.1 All that, piece and parcel of the developed converted land bearing Sy.No.195/1A, Bangalore Mahanagara Palike, Katha bearing Sl.No.1303, Sy.No.195/1A, measuring 05 Guntas, converted vide the Order dated 2.12.2019, in Official Memorandum bearing No.ALN(EKHW) SR21/2019-20, passed by the Special Deputy Commissioner, Bangalore East, Bangalore, situated at Hoodi Village, Krishnarajapuram Hobli, Bangalore East, Bangalore and bounded on:
East by : Road.
West by : Remaining Land in Sy.No.195/1A.
North by : Land bearing Sy.No.195/1B.
South by : Land bearing Sy.No.195/2B.
Item No.2
All that, piece and parcel of the converted land bearing Sy.No.195/18, Bangalore Mahanagara Palike, Katha bearing Sl.No.1803, Sy.No.195/18, measuring 6.08 Guntas, converted vide the Order dated 3.7.2020, in Official Memorandum bearing No.ALN(EKHW) SR01/2020-21, passed by the Special Deputy Commissioner, Bangalore East, Bangalore, situated at Hoodi Village, Krishnarajapuram Hobli, Bangalore East, Bangalore and bounded on:
East by : Land in Sy.No.195/1A.
West by : Road and thereafter Sy.No.7.
North by : Land bearing Sy.No.195/1B.
South by : Land bearing Sy.No.195/2C and 195/2B.
68 OS No.25297/2023
ANNEXURES
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Mr. Gurumurthy Vijayakumar @ G.Vijayakumar.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 : Affidavit of Family Tree.
Ex.P.2 : Death Certificate of Smt. Rathnamma.
Ex.P.3 : Certified copy of Partition Deed dtd:
2.9.1970.
Ex.P.4 : 03 Encumbrance Certificates. (a & b) Ex.P.5 : Certified copy of Sale Deed dtd:
31.3.1971.
Ex.P.6 : Certified copy of RTC in respect of Sy.No.195/1.
Ex.P.7 : Death Certificate of Gurumurthy Reddy.
Ex.P.8 : Original Partition Deed dtd: 2.9.1970.
Ex.P.9 : Certified copy of Partition Deed dtd:
27.9.2018.
Ex.P.10 : Certificate U/Sec.65B(4) of the Indian Evidence Act.
Ex.P.11 : Pendrive.
Ex.P.12 : Digital copy of Sale Deed dtd: 30.1.2020.
Ex.P.13 : Digital copy of Sale Deed dtd: 16.12.2020.
69 OS No.25297/2023Ex.P.14 : 06 Photographs.
(a to g) Ex.P.15 : Photographs.
to Ex.P.22 LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1 : Pranay Sekha Motuku.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D.1 : Joint Development Agreement dtd:
6.10.2016.
Ex.D.2 : Certified copy of Sale Deed dtd:
11.8.1975.
Ex.D.2a : Typed copy of Ex.D.2.
Ex.D.3 : Certified copy of Sale Deed dtd:
15.6.1977.
Ex.D.3a : Typed copy of Ex.D.3.
Ex.D.4 : Acknowledgment for deposit of title deeds issued by the SBI dtd: 7.2.2025.
Ex.D.5 : Certified copy of Memorandum of Deposit of title deeds dtd: 27.7.2023.
Ex.D.6 : Digital copy of Sale Deed dtd: 30.1.2020.
Ex.D.7 : Certified copy of Sale Deed dtd:
16.12.2020.
Ex.D.8 : 03 Encumbrance Certificates. (a & b) 70 OS No.25297/2023 Ex.D.9 : 05 RTCs of Sy.No.195/1 from 2015-16 to (a to d) 2018-19.
Ex.D.10 : 05 RTCs of Sy.No.195/1A from 2020-21 to (a to d) 2024-25.
Ex.D.11 : 05 RTCs of Sy.No.195/18 from 2020-21 to (a to d) 2024-25.
Ex.D.12 : Digital copy of Atlas of Sy.No.195/1A of Hoodi Village.
Ex.D.13 : Digital copy of Atlas of Sy.No.195/18 of Hoodi Village.
Ex.D.14 : Digital copy of Official Memorandum dtd:
2.12.2019 in respect of Sy.No.195/1A of Hoodi Village.
Ex.D.15 : Digital copy of Official Memorandum dtd:
3.7.2020 in respect of Sy.No.195/18 of Hoodi Village.
Ex.P.16 : 03 Mutation Register No.T9 of Hood (a & b) Village in respect of Sy.No.195/1A and Sy.No.195/1 of Hood Village dtd:
18.2.2025.
Ex.P.17 :
to Photographs & CD. Ex.D.21
Ex.D.22 : Letter given by the District Registrar dtd:
22(a) & 31.5.2025 with xerox copies of Ex.D.23 Partnership Deed dtd: 25.9.2018 and Reconstitution Deed dtd: 6.12.2019.
Ex.D.24 : Legal Scrutiny Report dtd: 20.2.2020.71 OS No.25297/2023
Ex.D.25 : Acknowledgment for deposit of title deeds dtd: 13.5.2025.
Ex.D.26 : Certified copy of Sale Deed dtd:
18.6.1935.
Ex.D.26a : Typed copy of Ex.D.26.
Ex.D.27 : Digital copy of building license in English and Kannada version in respect of Suit Schedule 'C' Property Sy.No.195/1A.
Ex.D.28 : Digital copy of sanction plan in respect of Suit Schedule 'C' Property Sy.No.195/1A.
Ex.D.29 : Digital copy of building license in English and Kannada version in respect of Suit Schedule 'D' Property Sy.No.195/18.
Ex.D.30 : Digital copy of sanction plan in respect of Suit Schedule 'D' Property Sy.No.195/18.
Digitally signed by
NARAYANAPPA NARAYANAPPA SRIPAD
SRIPAD Date: 2026.02.11
13:40:42 +0530
[Sri. Sreepada N]
LXXII Addl. City Civil & Sessions
Judge, Bengaluru. (CCH-73).