Bangalore District Court
G Geetha vs Seethalakshmi on 10 January, 2025
KABC0A0039252012
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. 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 10th day of January 2025.
O.S.No.26348/2012
Plaintiffs:- 1. Smt. G. Geetha,
W/o Late M. Gangadhara,
Since dead by LR
1(a) N.G. Shivaprasad,
S/o Late M. Gangadhara,
Aged about 40 years,
No.47, Near Muniyappa Temple,
Jyothinagar, Vajarahalli Road,
Kasaba Hobli, Nelamangala,
Bengaluru Rural Dist.
2 O.S.No.26348/2012
2. S.G. Srinivasamurthy,
S/o S. Gopal Rao,
Aged about 64 years,
R/at No.919/2A/86, 5th Cross,
K.B. Extension,
Davanagaere-577 002.
(P.2 - Abated as per order 5.12.2023)
[By Sri. Parashuram R.
Hattarakihal - Adv., for P.1]
V/s
Defendants:- 1. Smt. Seethalakshmi,
W/o P.R. Nagamohan,
Aged about 66 years,
R/at No.824/40, 18th Main Road,
37th Cross, 4th 'T" Block,
Jayanagara,
Bengaluru.
2. Smt. G. Nagarathna,
W/o C.N. Nagabhushan,
R/at No. M.I.E 103/15-1,
12th Main, Hanumanthanagar,
Bengaluru-560 050.
3. G. Subramanya,
S/o Late Gopal Rao S,
Aged about 58 years,
R/at No.45, Surveyor Street,
Basavanagudi,
Bengaluru.
4. Smt. G. Sumithra,
W/o K. Guruprasad,
Aged about 56 years,
3 O.S.No.26348/2012
R/at No.703/4, 73rd Cross,
6th Block, Rajajinagara,
Bengaluru-10.
5. Smt. G. Ramamani,
W/o Sujana Singh,
Aged about 54 years,
R/at Plot No.B-703,
Poorva Bellmount Apartment,
Kanakapura Road,
J.P.Nagar 6th Phase,
Bengaluru.
6. Smt. G. Usha,
W/o Prakash,
Aged about 52 years,
R/at No.284/40, 18th Main Road,
37th Cross, 4th 'T' Block,
Jayanagara,
Bengaluru.
[By Sri. P.R. Muralidhar Adv., for D.1,
Sri. Shyam Sunder Bajpekar Adv.,
for D.2, Sri. B.N. Anantha Narayana
Adv., for D.3 & 5, D.4 & 6 - Ex-parte]
Date of Institution of the suit 9.7.2012
Nature of the (Suit or pro-note,
suit for declaration and
possession, suit for Partition Suit
injunction, etc.)
Date of the commencement of 11.7.2022
recording of the Evidence.
Date on which the Judgment 10.1.2025
was pronounced.
4 O.S.No.26348/2012
Total duration Year/s Month/s Day/s
12 06 01
LXXII ADDL. CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is by the Plaintiffs against the Defendants for partition and separate possession of their 2/8th share in the Suit Schedule 'A' & 'B' Properties by metes and bounds and put the Plaintiffs in possession of their respective share, if the Defendants failed to do so, this Court pleased to appoint the Court Commissioner to make partition and put the Plaintiffs in possession in respect of their respective shares by metes and bounds and to declare the registered Release Deed dtd: 1.4.1998 executed by the wife of 3rd Defendant in favour of 3rd Defendant is not binding on the Plaintiffs share in the Suit Schedule 'A' Property based on the forged General Power of Attorney dtd: 4.2.1998 and for other consequential reliefs.
5 O.S.No.26348/20122. The epitome of the case of the Plaintiffs is as follows:
It is stated that the Plaintiffs and Defendants are the children of Late Gopal Rao and they have constituted a Hindu undivided joint family. The father of the Plaintiffs had filed a suit in O.S.No.125/1965 seeking partition and separate possession against one J.S. Vasudevaiah S/o Subbaiah, Ramachandra Rao S/o Seetharamaiah for his 1/6th share in respect of Item No.1 to 5 immovable and movable properties as stated therein. Thereafter, the father of the Plaintiffs and Defendants in the said suit had entered into compromise and the matter was settled by virtue of preliminary decree dtd: 5.12.1996. Thereafter, they have entered into a Family Arrangement on 10.11.1983 and the Suit Schedule 'A' Property was bifurcated into 03 portions and allotted to one Smt. Lalitha Rao W/o Late S. Ramachandra Rao, second part allotted to S. Gopal Roa and the third portion allotted to S. Sreekantha Rao. The Item No.1 property i.e., Suit Schedule 'A' Property was exclusively fallen to the share of Plaintiffs father and Defendant No.2 &
3 therein. Thereafter, on 13.3.1984 the father of the 6 O.S.No.26348/2012 Plaintiffs S. Gopala Rao died and subsequently on 22.2.2011 the mother of the Plaintiffs and Defendants died leaving behind them to succeed their estate. After the death of parent, they became joint owners in possession and enjoyment of the Suit Schedule 'A' Property. It is stated that the wife of 3 rd Defendant by name H.S. Ramamani has created a General Power of Attorney on 14.2.1998 by forging the signature of the Plaintiffs to deprive the legitimate share of the Plaintiffs in the Suit Schedule 'A' Property by showing false address of the Plaintiffs in the GPA and immediately she has executed Release Deed in favour of the 3rd Defendant on 1.4.1998. Further, it is stated that the mother of the Plaintiffs by name P. Susheelamma has acquired the property bearing Sy.No.178/1 measuring 01 Acre 16 Guntas including 03 Guntas Kharab land situated at Ramapura @ Akkirampura Village, Holavanahalli Hobli, Koratagere Taluk, Tumkur District i.e., the Suit Schedule 'B' Property by virtue of Gift Deed dtd: 6.2.1946 from her father by name P. Seetharamaiah. The Plaintiffs and Defendants are the co-parceners and the Suit Schedule Properties are the joint family properties and they are having equal share over the Suit Schedule 7 O.S.No.26348/2012 Property. After the death of their mother, the Plaintiffs have demanded their in the Suit Schedule Properties, the Defendants postpone the same by one or the other pretext. The Plaintiffs came to know that the Suit Schedule 'A' Property was transferred in the name of 3rd Defendant. Thereafter, the Plaintiffs applied for Khata Extract and the same discloses that the Suit Schedule 'A' Property stands in the name of 3 rd Defendant. Thereafter, on 5.4.2012 again the Plaintiffs demanded their share in the Suit Schedule Properties, but the 3rd Defendant has given a vague reply to the Plaintiffs that the Plaintiffs have no any right, title and interest over the Suit Schedule Properties. After seeing the attitude of the Defendants, the Plaintiffs have no other alternative and efficacious remedy except to approach this Court. Hence, prayed to decree the suit.
3. Pursuant to summons, the Defendant No.1 to 3 & 5 have entered appearance and filed their separate written statement. The Defendant No.4 & 6 have remained absent, hence, they placed ex-parte.
8 O.S.No.26348/20124. The Defendant No.1 in her written statement specially denied the plaint averments and contended that the suit of the Plaintiffs is not maintainable either in law or on facts and same deserves to be dismissed with exemplary cost. The Plaintiffs have not approached the Court with clean hands and they have deliberately with malafide intention to harass the 3rd Defendant, have suppressed the real and material facts, while filing this suit. Hence, the suit filed by the Plaintiffs is liable to be dismissed. The suit filed by the Plaintiffs is false, frivolous, vexatious and totally misconceived and it is filled with oblique motive. Hence, the suit is not maintainable. The suit is not maintainable for non-joinder of necessary party. It is stated that one Mr. Manjunath the legal heirs of Late S. Gopal Rao is left out and he is not arrayed as one of the necessary party to this suit. The family tree produced by the Plaintiffs in the above said suit is incomplete. Hence, the suit is not maintainable.
5. Further this Defendant has admitted all the plaint averments, except contending that the 3 rd Defendant has left his job in HAL Nasik in 1983 to looking after his parents. He rejected many good 9 O.S.No.26348/2012 offers outside Bangalore. The other aspect was his emotional commitment of honoring the promise he has made to his father on the death bed to take care of the mother and to fulfill his dreams of building a new house on the said property of measuring 647.5 sq.ft. After the death of his father, the Defendant No.3 has look after his mother solely took all the financial expenses which was inclusive of hospital and funeral expenses by borrowing some money through loans. It is further contended that the old house of their father was the tiled house covered a plinth area of about 416 sq.ft., and the property was old construction built of mud, bricks and tiles. The tiles were broken in the roofs and when it became impossible to life the roof was replaced by RCC Roof by keeping the walls as it is. The open toilets were included in the main building. The plinth area of the building was about 460 sq.ft. The common passage and road entry passage were muddy and not in level. There was open drainage for rainy water passage from open space and road entry passage. The said old house was very small not having properly planned ventilation and was in deteriorated condition and no other members of the family were not ready to stay 10 O.S.No.26348/2012 more than one day in the house. Hence, the release deed executed by the power of attorney of all the Plaintiffs and Defendants herein is true and correct. All the members of the family were aware of the release deed which was executed in the office of the Sub-Registrar, Basavanagudi, Bangalore. Every member of the family were aware about the mortgage of the property by the third Defendant to avail loan for constructing the house on the property which was released by all the parties. This Defendant admits about executing General Power of Attorney in favour of the wife of 3rd Defendant. The Plaintiffs and Defendants have voluntarily, willfully without any coercion or pressure from anybody. Further, it is stated that the description of the Suit Schedule Property mentioned in the suit is incorrect and false. The measurement and boundaries and the dimension of the Suit Schedule Property is wrong and incorrect. No such Suit Schedule 'A' Property is in existence as on now as stated by the Plaintiffs in the plaint. It is stated that the 3rd Defendant is the absolute owner of the property measuring about 647.5 sq.ft. Hence, the suit is liable to be dismissed on the ground of sim- description of the Suit Schedule 'A' Property. The suit 11 O.S.No.26348/2012 filed by the Plaintiffs is barred by limitation. The property of S. Gopal Rao is released in favour of the third Defendant in the year 1998. This suit is filed beyond 12 years. Hence, the suit is liable for dismissal. Hence, prayed to dismiss the suit with exemplary costs.
6. The Defendant No.2 & 5 in their written statement admitted the plaint averments and contended that the demand for partition was not made to these Defendants as all the Suit Schedule Properties was under the control of the 3 rd Defendant who has illegally transferred the same to his name and never gave any share to these Defendants even when demanded. The other plaint averments are specifically denied as false. Hence, prayed to decree the suit with one share each to the Defendant No.2 & 5 respectively and put them in possession in respect of their shares so partitioned.
7. The Defendant No.3 in his written statement specially denied the plaint averments and contended that in terms of compromise decree passed in O.S.No.125/1965 the Suit Schedule 'A' Property 12 O.S.No.26348/2012 exclusively fell tot he share of Plaintiffs father and his brothers, the Plaintiffs and Defendants have succeeded to the estate left behind by their parents, that the Plaintiffs and the Defendants have become joint owners in possession and enjoyment of the Suit Schedule 'A' Property, the Plaintiffs are Defendants are coparceners and that the Suit Schedule Properties are the joint family properties and they are having equal share over the Suit Schedule Properties and when the Plaintiffs demanded for their the Defendants postpone the same for one or the pretext, the Plaintiffs immediately after coming to know that the Suit Schedule 'A' Property was transferred in the name of 3rd Defendant applied and obtained the khatha extracts from BBMP are all false and concocted. The Plaintiffs have filed the suit claiming to be coparceners of the joint family of late S. Gopala Rao and his brothers S. Ramachandra Rao and S. Srikanta Rao. The Plaintiffs have not made the heirs and successors of Late S. Ramachandra Rao and S. Srikantha Rao as parties to the suit. Late S. Gopal Rao and his wife Smt. Susheelamma, died leaving behind three sons and six daughters. The Plaintiffs have not made the youngest son by name G. 13 O.S.No.26348/2012 Manjunatha as a party to the suit. The suit is not maintainable for non-joinder of necessary parties. The Suit Schedule 'A' Property was the subject matter of the partition suit in O.S.No.125/1965 filed by S. Gopal Rao the father of the Plaintiffs and Defendants. The Suit Schedule 'A' Property came to be allotted in the said suit to S. Ramachandra Rao, S. Gopala Rao and S. Srikant Rao, subject to payment of Rs.18,250/- to their cousin brother J.V. Vasudevaiah. Pursuant to the decree dtd: 5.12.1966 passed in O.S.No.125/1965 J.V. Vasudevaiah executed registered Sale Deed dtd: 12.6.1968 in favour of S. Ramachandra Rao, S. Gopala Rao and S. Srikant Rao. The Suit Schedule 'A' Property came to be jointly owned by three brothers. Under the deed of family arrangement dtd: 10.11.983 between Smt. Lalitha Rao W/o S. Ramachandra Rao, S. Gopal Rao and S. Srikant Rao the Suit Schedule 'A' Property came to be partitioned and S. Gopala Rao was allotted portion of property as per the plan annexed to the Deed of Family Arrangement dtd: 10.11.1983 delineated by the letters DJIHF measuring 23'6" X 24'3" and 6'2" X 12'2". In terms of the partition each of the three brothers got 774.04 sq.ft., of the land with entrance 14 O.S.No.26348/2012 through common passage from Surveyor Street. The property was bifurcated as No.45, 45/1, 45/2 respectively and portion No.45 was allotted to the S. Gopal Rao and the khtah of the property came to be registered in the name of 3rd Defendant as per the Affidavit dtd: 13.6.1995 filed by all the heirs and legal representatives of Late S. Gopal Rao including the Plaintiffs.
8. Further it is contended that the health condition of S. Gopala Rao was deteriorating and as there was no other person to take care of family, he left his job at HAL Nasik and came down to Bangalore and joined a start up Company called M/s Sunray Computers mainly with a view to take care of the family. The Defendant received lucrative job offers from Australia in 1989, U.K in 1990 and U.S.A in 1995 and this Defendant rejected all those offers with a view to take care of his mother, younger sisters and younger brother. Thereafter, the mother of the 3 rd Defendant undergone several major health issues and this Defendant had to spend enormous amount for the treatment of his mother and for her hospitalization and medical treatment. This Defendant took loan from 15 O.S.No.26348/2012 several sources and got the tiled roof changed to that of RCC roof by incurring expenses to the extent of Rs.2 lakhs. The Defendant was the bread winner of the family from 1978 and bearing the cost of wedding of some of his sisters after the expiry of his father and maintaining the property, paying the taxes payable on the property. The property No.45 owned by S. Gopal Rao and members of his family was a small house and was not possible to be divided into several shares. All the members of the family wanted that the property should be given to this Defendant in recognition of his taking care of the family and the house. It was decided by all the members of the family that they would release and relinquish all their right, title, interest and share in and over the property No.45 i.e., Suit Schedule 'A' Property. Accordingly, the Plaintiffs, the Defendant No.1, 2, 4 to 6 and Smt. Susheelamma and Manjunath executed General Power of Attorney in favour of Smt. H.S. Ramamani on 14.2.1998. The said Power of Attorney made it clear that Smt. H.S. Ramamani the wife this Defendant shall executed Release Deed in respect of the Suit Schedule 'A' Property. Pursuant to that, Smt. H.S. Ramamni representing the Plaintiffs and the other 16 O.S.No.26348/2012 Defendants including mother and Manjunath executed registered Release Deed dtd: 1.4.1998 in favour of this Defendant, This Defendant eversince the Release Deed dtd: 1.4.1998 has been owning and possessing the property No.45 as the absolute owner thereof and the Plaintiffs and the remaining Defendants have ceased to be having any manner of right or share, interest and possession over the property. Thereafter, this Defendant constructed new building on the property No.45 by investing his saving and by borrowing Rs.7 lakhs from the Visveswaraiah Co-Operative Bank Ltd., Bangalore got constructed a residential house by spending Rs.45 lakhs. This Defendant is the absolute owner of the Suit Schedule 'A' Property and the Plaintiffs and other Defendants have no manner of right, title, interest, share or possession over the same.
9. Further it is stated that the Suit Schedule Property is an agricultural land and formed part of Sy.No.178 of Akkirampura Village, Holavanahalli Village, Koratagere Taluk, Tumkur District. This land originally measured 03 Acre 22 Guntas and was owned by one P. Seetharamaiah S/o Ashwathaiah.
17 O.S.No.26348/2012An extent of land measuring 01 Acre 02 Guntas in the said Sy.No.178 came to be gifted by P. Seetharamaiah in favour of his daughter Smt. Susheelamma, the mother of the Plaintiffs and the Defendants. The said gift was subject to the condition that if shall remain in the family of Smt. Susheelamma. The Plaintiffs have wrongly described the Suit Schedule 'B' Property as measuring 01 Acre 16 Guntas instead of 01 Acre 02 Guntas in extent. This Defendant has invested large sums of money and made the land fertile and has grown Arecanut plantation and planted valuable trees for long term benefits. The land was through out in litigation. The land was subject matter of litigation in LRM.CR 622/75-76 one person by name A.K. Chikkanna S/o Pillappa had claimed tenancy rights over the land and the proceedings had to be contested. Later the khatha of the land which was in the name of the mother had been got removed and the name of one Venkataramaiah S/o Aswathaiah had been incorporated in RRT DS 44/96-97. This Defendant had to get the appeal filed in RRT (A) 68/02-03 and get the khatha rectified and restored in the name of the mother. This Defendant got the land cleared from 18 O.S.No.26348/2012 litigation by spending large sums of money. It was under these reasons all the members of the family of Susheelamma were of the view that the land should be owned by the 3rd Defendant. Without prejudice it is stated that in case the Suit Schedule 'B' Property is ordered to be partitioned he is entitled for the improvements made. Further, it is contended that there is no cause of action for the suit and the cause of action pleaded is imaginary and non-existing one. The suit filed by the Plaintiffs is not maintainable in law and liable to be dismissed. Hence, prayed to dismiss the suit with exemplary costs.
10. The Defendant No.3 in his additional written statement specifically denied the contents of amended plaint and contended the same facts mentioned in his written statement.
11. The Defendant No.1 filed memo to adopt the additional written statement filed by the Defendant No.3 in the above case.
12. Based on the pleadings of the parties, my leaned predecessor has framed the following issues:
19 O.S.No.26348/20121. Whether the Plaintiffs prove that, the wife of the Defendant No.3 by name H.S. Ramamani, GPA dtd:
14.2.1998, by forging the signature of the Plaintiff and executed Release Deed in favour of the Defendant No.3 on 1.4.1998 in respect of Suit Schedule 'A' Property, as contended in Para No.3(b) of the amended suit plaint?
2. Whether the Plaintiffs prove that, the Suit Schedule Properties are available for Partition, as on the date of filing of this suit?
3. Whether the Defendant No.1 proves that the suit of the Plaintiffs is bad for non-joinder of necessary party, as contended by her in Para No.4 of the written statement?
4. Whether the Defendant Nos.1 and 3proves that the Defendant No.3 has developed the Suit Schedule 'B' Property and has constructed a house in the Suit Schedule 'A' Property?20 O.S.No.26348/2012
5. Whether the Plaintiffs and Defendant Nos.2 & 5 proves that, they are entitled for the relief of partition in the Suit Schedule Properties and to have 1/6th each, as claimed?
6. Whether the Plaintiffs are entitled for the relief of declaration as claimed in Prayer (a)(i) of the Suit Plaint?
7. What order or decree?
ADDITIONAL ISSUES
1. Whether the Defendant No.3 proves that, the General Power of Attorney dtd: 14.2.1998 and the Release Deed dtd: 1.4.1998 are binding on the Plaintiffs and Defendant No.1, 2, 4 & 5, as contended in Para Nos.6 and 7 of his Addl. Written Statement?
2. Whether the Defendant No.3 proves that, the Suit filed by the Plaintiffs claiming the relief of partition and separate possession, is not maintainable without seeking the 21 O.S.No.26348/2012 relief of cancellation of Release Deed dtd: 1.4.1998?
3. Whether the Plaintiffs prove that, they have property valued the suit and have paid the Court Fee, on the Suit Plaint, as required by law?
4. Whether the Defendant No.3 proves that, the Suit of the Plaintiffs is barred by Limitation, as contended by him, in Para No.9 of his Addl.
Written Statement?
13. The Plaintiff No.1(a) got examined as PW.1 and got marked Ex.P.1 to Ex.P.14 and closed his side. The Defendant No.3 got examined as DW.1 & Defendant No.1 got examined as DW.2 and got marked Ex.D.1 to Ex.D.35 documents
14. Heard both sides.
15. On appreciation of the evidence and documents on record, my findings on the above issues is as under:
Issue No.1: In the Negative.
Issue No.2: In the Negative.
Issue No.3: In the Affirmative.22 O.S.No.26348/2012
Issue No.4: In the Affirmative.
Issue No.5: In the Negative.
Issue No.6: In the Negative.
Addl.Issue No.1: In the Affirmative. Addl.Issue No.2: In the Affirmative.
Addl.Issue No.3: In the Negative.
Addl.Issue No.4: In the Affirmative. Issue No.7: As per final order for the following:
REASONS
16. Issue No.1, Addl. Issue Nos.1 & 4:-
Since the above issues are inter related and finding on one issue is having bearing on the other, in order to avoid repetition of facts, the above issues have been taken up together for consideration.
17. It is the specific case of the Plaintiffs is that they have filed the present suit for the relief of partition and separate possession of their share over the Suit Schedule Properties. The Suit Schedule Properties are the joint family properties of the Plaintiffs and the Defendants. Earlier the father of the Plaintiffs had filed a suit in O.S.No.125/1965 seeking partition of and separate possession against one J.S. 23 O.S.No.26348/2012 Vasudevaiah, Ramachandra Rao and Sreekanth Rao for his 1/6th share in respect of Item No.1 to 5 immovable and movable properties. The said suit ended in Compromise Decree. According to the said Compromise Decree, Item No.1 property i.e., Item No.1 of the present Suit Schedule Properties fallen to the share of Plaintiffs' father. On 13.3.1984 the father of the Plaintiffs died, subsequently on 22.2.2011 the mother of the Plaintiffs also died. The Suit Schedule 'A' Property allotted to one Ramachandra Rao, Gopala Rao and Sreekantha Rao and their cousin J.V. Vasudevaiah in O.S.No.125/1965 pursuant to Decree dtd: 5.12.1966. Thereafter, they have entered into family arrangement on 10.11.1983 and the Schedule Property was bifurcated into 03 portions and allotted one portion to Smt. Lalitha Rao and second portion to Gopal Rao and third portion to Sreekanthah Rao and thereafter the revenue records were effected in respect of Suit Schedule 'A' Property. Accordingly the Suit Schedule 'A' Property is allotted to the share of Gopal Rao. However, the wife of the Defendant No.3 has created General Power of Attorney by forging the signatures of Plaintiff No.1 to deprive her legitimate share in the Suit Schedule 'A' Property. Even she has 24 O.S.No.26348/2012 not consented and signed on the said Release Deed dtd: 1.4.1998. The alleged General Power of Attorney holder cannot relinquish the right of Plaintiff No.1 over the Suit Schedule 'A' Property. Even on the basis of unregistered General Power of Attorney, the property cannot be released. The Defendant No.3 also had played fraud by creating the alleged unregistered General Power of Attorney, through his wife with ill intention to grab the Suit Schedule 'A' Property. When the Plaintiffs and Defendants are having equal share over the Suit Schedule Properties, the Plaintiff No.1 is also entitle for her share over the Suit Schedule Properties. During the pendency of this suit, the Plaintiff No.1 died and her LR is entitle for share in the Suit Schedule 'A' & 'B' Properties.
18. It is clear from the pleadings that earlier both Plaintiffs have simply filed the suit for partition without saying anything about the alleged General Power of Attorney or Release Deed, but first time filed application to amend the plaint and incorporated the prayer of declaration in the year 2016.
19. The Plaintiff No.1(a) is examined as PW.1 and reiterated the plaint averments in his 25 O.S.No.26348/2012 examination-in-chief. Further in support of his oral evidence got marked documents at Ex.P.1 to Ex.P.14. Ex.P.1 is the Genealogical Tree of the family of deceased Gopal Rao prepared by the Revenue Inspector as per the instructions of LR of Plaintiff No.1. Ex.P.2 & Ex.P.3 are the Death Certificates of S. Gopal Rao & his wife Smt. Sushilamma. Ex.P.4 is the Mutation Order in respect of Suit Schedule 'A' & 'B' Properties. Ex.P.5 is the RTC in respect of Suit Schedule 'B' Property. Ex.P.6 is the Khata Extract of Suit Schedule 'A' Property, which is standing in the name of Defendant No.3. Ex.P.7 is the Endorsement dtd: 8.7.2022 issued by BBMP in respect of Suit Schedule 'A' Property and admittedly it is standing in the name of Defendant No.3. Ex.P.8 is the Certified copy of Release Deed dtd: 1.4.1998 executed by the wife of Defendant No.3 in favour of Defendant No.3 in respect of Suit Schedule 'A' Property. Ex.P.9 is the Certified copy of Gift Deed dtd: 6.2.1946 in respect of Suit Schedule 'A' Property. Ex.P.10 & Ex.P.11 are the 02 Mutation Order in respect of Suit Schedule 'A' & 'B' Properties and after the death of Gopal Rao it is changed in the name of his wife. Ex.P.12 is the RTC in respect of Suit Schedule 'B' Property which is still 26 O.S.No.26348/2012 standing in the name of wife of deceased Gopal Rao. Ex.P.13 is the Death Certificate of Plaintiff No.1. Ex.P.14 is the Death Certificate of daughter of deceased Plaintiff No.1.
20. This witness has been cross-examined by the Learned Counsel for the for the Defendants and during the course of cross-examination he stated that he is not aware that on 13.6.1995 all the children of Gopal Rao have executed an affidavit for transfer of khatha of Suit Schedule 'A' Property in the name of 3 rd Defendant and accordingly the khatha has been transferred in the name of 3 rd Defendant. Further he admitted the suggestion that all the children are aware about the transfer of khatha in the name of Defendant No.3. Further stated that he does not know whether the Defendant No.3 is paying tax of Suit Schedule 'A' Property. Further stated that he does not know since the Defendant No.3 was managing the family, all the children have decided to give the Suit Schedule 'A' Property to the Defendant No.3. Further stated that he does not know there was an agreement between the children of his grand father to execute Release Deed in favour of Defendant No.3 in respect 27 O.S.No.26348/2012 of the Suit Schedule 'A' Property by receiving Rs.1,00,000/-. Further he admitted the signature of his mother found in Ex.D.1 Affidavit. Further he also stated that Ex.D.1 was blank document when his mother singed on the said document. Further he also admitted signatures sisters and brothers of D3 in this document.
21. Admittedly, Ex.D.1 is an Affidavit, in the said document the signature of the mother of Plaintiff No.1 was found. According to this document, all the children of Gopal Rao have sworn to this Affidavit by stating that they have no objection for Defendant No.3 to apply for a loan and to receive the loan amount from the Society on the Suit Properties. Further this witness also admitted the signature of his mother/Plaintiff No.1 on Ex.D.2 which is the Power of Attorney executed by all the children of Gopal Rao in favour of wife of Defendant No.3 as per Ex.D.9. This witness has identified the signature of his mother on all the pages of Ex.D.2. Further he stated that he does not know on the basis of Ex.D.2 the wife of Defendant No.3 executed registered Release Deed dtd: 1.4.1998 in favour of Defendant No.3 in respect of Suit A 28 O.S.No.26348/2012 schedule property. Further stated that he does not know on the strength of the said Release Deed the Defendant No.3 has become absolute owner of Suit Schedule 'A' Property. Further stated that he is not aware that his mother and Plaintiff No.2 were aware of the Release Deed and ownership of Defendant No.3 over the Suit Schedule 'A' Property. Further admitted the suggestion that the 3rd Defendant has constructed a new residential building in the Suit Schedule 'A' Property by demolishing old house. Further admits the suggestion that there was house warming ceremony in the year 2000. Further admits that himself and his mother were attended the house warming ceremony.
22. In the above admission of PW.1 with Ex.D.1 to Ex.D.3 it appears that the Plaintiff No.1 and other brother and sisters of D.3 were signatory to Ex.D.1 & Ex.D.2 and on the basis of Ex.D.2 only the wife of Defendant No.3 had executed Release Deed in respect of Suit Schedule 'A' Property in favour of Defendant No.3 as per Ex.D.9.
23. The Plaintiffs have categorically contended that the Ex.D.2 has been created by forging the 29 O.S.No.26348/2012 signature of the Plaintiffs and executed Release Deed in favour of the Defendant No.3 on 1.4.1998 in respect of the Suit Schedule 'A' Property. However, in order to show that the signature of Plaintiff No.1 has been forged by the wife of the Defendant No.3 is concerned, no materials have been placed. On the other hand, the PW.1 himself has admitted the signature of his mother in Ex.D.2 Power of Attorney, so the question of forging the signature of Plaintiff No.1 on Ex.D.2 does not arise.
24. The Defendant No.3 has examined himself as DW.1 and reiterated most of the contents of his written statement in his examination-in-chief. In support of his evidence he has got marked as many as 32 documents including the certified copy of Final Decree passed in O.S.No.125/1965, Compromise Petition entered in the said suit, Encumbrance Certificate, Family Arrangement, Khata Extract, Release Deed, Sanction Plan in respect of the house constructed in the Suit Schedule 'A' Property, Electricity & Water Bills, Tax Paid Receipts, IT Returns, Photo and property records of the Suit Schedule 'A' & 'B' Properties, Tax Paid Receipt etc. 30 O.S.No.26348/2012
25. During the course of cross-examination, he admitted the suggestion that the 1 st Plaintiff is the third daughter of his parents. The 1 st Plaintiff got married against the wishes of their parents. Further denied the suggestion that for that reason they hated deceased Plaintiff No.1 and in order to cheat her they have created documents over the Suit Schedule Properties. Further he admits the suggestion that Suit Schedule 'A' Property is an ancestral property and all the children of his parents are entitle for equal share over the same. Even the deceased Plaintiff No.1 was also having equal share over the same. Further admits the suggestion that the General Power of Attorney was not registered. Further denied the suggestion that no such General Power of Attorney was executed by the deceased Plaintiff No.1 and it was created by him to get the property transferred in his name. Further admits the suggestion that the Suit Schedule 'B' Property being the landed property belongs to his mother and the Plaintiffs are having equal share over the same. Further admits that till today the khatha of the property is standing in the name of her mother.
31 O.S.No.26348/201226. It is an admitted fact that though this witness admitted that Plaintiff No.1 is having equal share over the Suit Schedule 'A' & 'B' Properties, but as discussed above, the deceased Plaintiff No.1 during her lifetime had executed General Power of Attorney in favour of wife of Defendant No.3 and in pursuance of said General Power of Attorney only the wife of Defendant No.3 has executed Ex.D.9 Release Deed in favour of Defendant No.3. In order to show that the wife of Defendant No.3 had no authority to execute the Release Deed in favour of Defendant No.3 in pursuance of Ex.D.2 is concerned, no materials produced by the Plaintiffs in this suit.
27. The Defendant No.1 who is the sister of Plaintiff No.1 and Defendant No.3 also examined as DW.2 and she fully supported the case of the Defendant No.3. This witness also been cross- examined by the counsel for the Plaintiff, but no worth materials have been elicited from her mouth to disprove the contents of her examination-in-chief. Even during the course of cross-examination made by the counsel for the Plaintiffs also she specifically 32 O.S.No.26348/2012 stated that Suit Schedule 'A' Property was released by all of them in favour of Defendant No.3. Even this witness during the course of cross-examination stated that when they have all released their share in favour of Defendant No.3, there is no need to partition the Suit Schedule 'A' Property. Further stated that in Ex.D.9 no witnesses have affixed their signatures as witness to the said document. The evidence of DW.2 is much helpful to the Defendant No.3 and cross- examination of DW.2 is of no use to the Plaintiffs to disprove the valid execution of Ex.D.9 by the wife of Defendant No.3 in favour of Defendant No.3.
28. It is the argument of the Learned Counsel for the for the Plaintiff No.1 is that the Defendant No.3 is claiming right over the Suit Schedule 'A' Property on the basis of unregistered General Power of Attorney alleged to have been executed by the Plaintiff No.1 and other Defendants. But on the basis of unregistered General Power of Attorney no property can be transferred. Therefore, the Release Deed executed by the wife of Defendant No.3 on the basis of unregistered General Power of Attorney cannot be termed as legal and valid document and it is against 33 O.S.No.26348/2012 to Section 17 of the Limitation Act and as well against to Section 54 & 55 of Transfer of Property Act. Therefore, the Defendant No.3 will not confer any title nor transfer any interest in Suit Schedule 'A' Property. The Defendant No.3 in order to swallow the share of Plaintiff No.1 over the Suit Schedule 'A' Property only created Ex.D.2 and Ex.D.9. Therefore, the Court may hold that on the basis of Ex.D.9 the Defendant No.3 did not get any right over the Suit Schedule 'A' Property. In support of his arguments he has relied upon the decisions of the Hon'ble Apex Court in Special Leave Petition (C) No.13917 of 2009 in between Suraj Lamp & Industries Pvt., Ltd., V/s State of Haryana & Anr.
29. It is the arguments of the Learned Counsel for the for the Defendant No.3 is that the Plaintiffs have filed the present suit against the Defendants for the relief of partition in respect of the Suit Schedule 'A' & 'B' Properties and also prayed to declare that the Release Deed dtd: 1.4.1998 is not binding on the Plaintiffs' share in the Suit Schedule 'A' Property which was based on forged General Power of Attorney dtd: 4.2.1998. Such being the fact, it is 34 O.S.No.26348/2012 burden upon the Plaintiffs to prove that the Ex.D.2 & Ex.D.9 have been created by playing fraud, undue influence, coercion etc., in this regard, there is no pleading in the plaint and full particulars of undue influence, coercion etc., shall have to be pleaded by the Plaintiffs in the plaint and then they have to prove the same. General allegations regarding fraud and undue influence are not sufficient, mere use of expressions 'misrepresentation' and 'fraud' etc., are not sufficient. In support of pleadings the Plaintiff No.1 has not placed any materials, on the other hand, PW.1 himself has admitted the signatures of his mother Plaintiff No.1 in Ex.D.1 & Ex.D.2. When the signatures of Plaintiff No.1 is admitted, it deemed that she has signed on the said document, then onus is upon the Plaintiffs to establish that those documents have been created by playing fraud. However, in order to show that it has been created, no materials forthcoming from the side of the Plaintiffs. Therefore, he prayed to hold that the Plaintiffs have failed to prove that the wife of Defendant No.3 by forging the signature of Plaintiffs executed Release Deed in favour of Defendant No.3.
35 O.S.No.26348/201230. In support of his arguments he has relied upon fallowing decisions reported in:
1) AIR 1951 SC 280 Bishundeo Narayan & Another V/s Seogeni Rai & Others,
2) AIR 1963 SC 1279 Ladli Prashad Jaiswal V/s The Karnal Distillery Co., Ltd., Karnal,
3) (2021) 5 SCC 241 H.S. Goutham V/s Ramamurthy & Another,
4) 2021 SCC Online Bombay 2360 Indus Co-
Operative Housing Society Limited, Nagpur V/s Nagpur Improvement Trust and Others,
5) (2009) 14 SCC 782 Rajini Tandon V/s Dulal Ranjan Ghosh Dastidar and Another and
6) 2022 Livelaw (SC) 822 C.S. Ramaswamy V/s V.K. Senthil & Others.
31. I have gone through all the above decisions and the principles of all the above decisions are aptly applicable to the facts of this case. Here in this case also it is the contention of the Plaintiffs that the signature of Plaintiff No.1 has been forged for creating Ex.D.2. However, in this regard, no materials placed. As argued by the counsel for the Defendant No.3 mere 36 O.S.No.26348/2012 use of expression 'misrepresentation' and 'fraud' in the pleading without any further particulars does not satisfy legal requirements in this regard. Moreover, in the aforesaid decision of the Hon'ble Apex Court in Rajini Tandon Case the Hon'ble Apex Court held that, where a Deed is executed by an Agent for the Principal and the same Agent signs, appears and presents the deed or admits execution before the Registering Officer, that is not the case of presentation under Section 32(C) of the Act. Section 33 will come into play only in cases where presentation in terms of Section 32(C) of the Act. In other words, only in cases where the persons signing the documents cannot present the documents before the Registering Officer and gives a Power of Attorney to another to present the document that the provisions of Section 33 get attracted. Further it is held that only in such a case, that the said Power of Attorney has to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the Act.
32. Here in this case, the Plaintiffs and all other sisters of Defendant No.3 have jointly executed Power of Attorney in favour of the wife of Defendant No.3 37 O.S.No.26348/2012 and in turn the wife of Defendant No.3 has executed registered Release Deed in favour of Defendant No.3 before the Registering Authority. So she has executed the said document in view of the power given to her by other sisters and brother of the Defendant No.3. Even PW.1 clearly admitted the signature of his mother and other siblings of his mother on Ex.D.1. even he clearly admitted the signatures of his mother on Ex.D.2. So, Ex.D.2 is executed by the brothers and sisters of Defendant No.3 to execute Release Deed by the wife of Defendant No.3 in favour of Defendant No.3 and this document taken place within the family members. Hence, it cannot be said that it is created one, moreover after long gab, only after institution of the suit only the Plaintiffs have taken contention regarding forging of signatures of Plaintiff No.1 on Ex.D.2, but it is not proved.
33. Further as observed in the above referred decision of C.S. Ramaswamy V/s V.K. Senthil & Others, in the present case also just the Plaintiff pleaded that fraud has been played by forging the signature of Plaintiff No.1 in Ex.D.2, but they have not specifically pleaded in the plaint, mere stating in the 38 O.S.No.26348/2012 plaint that a fraud has been played is not enough and allegations of fraud must be specifically averred in the plaint otherwise merely using the word fraud itself is not sufficient to come to conclusion that by forging the signature of the Plaintiffs the wife of the Defendant No.3 has executed Release Deed in favour of Defendant No.3 in respect of Suit Schedule 'A' Property.
34. It is further argument of the Learned Counsel for the for the Defendant No.3 is that the Ex.D.2 has been taken place on 14.2.1998 and the Ex.D.9 Release Deed has been taken place on 1.4.1998. However, the present suit has been filed in the year 2012 and also the Plaintiffs for the first time got amended the plaint on 1.10.2020 and taken up fresh contention regarding the forging of the signatures of Plaintiff No.1 on Ex.D.2. According to Section 17 of Limitation Act effect of fraud plea that suits are filed within 03 years of acquiring knowledge of fraud, failure of Plaintiff to examine the person disclosing the information to her, since the Plaintiff failed to establish the existence of fraud, there is no occasion for its discovery, benefit under Section cannot be 39 O.S.No.26348/2012 extended to the Plaintiff. In support of this argument he has relied upon the decision reported in AIR 2021 SC 899. I have gone through the above decision and the principles of the above decision is aptly applicable to the case on hand and the contention of the Defendant No.3.
35. As aforesaid, though the Power of Attorney has been taken place on 14.2.1998 and the Release Deed on 1.4.1998, but the suit is filed in the year 2012. Moreover, the Plaintiffs have failed to establish the existence of fraud in executing Ex.D.2. Therefore, there is no occasion for its discovery. Therefore, benefit under Section 17 of Limitation Act cannot be extended to the Plaintiff. Therefore, suit is prima-facie barred by limitation.
36. It is pertinent to note that in another recent decision relied upon by the counsel for the Defendant No.3 in Vinita Shama V/s Rakesh Sharma case also the Hon'ble Apex Court clearly held that :
Family and Personal Laws -
Hindu Succession Act, 1956 -
S.6(5) r/w Expln. Thereto [as substituted by the Hindu 40 O.S.No.26348/2012 Succession (Amendment) Act, 2005] - Provision under, excepting those partitions which were effected before 20-12-2004 by a decree of a court or a deed duly registered in terms of Registration Act, 1908 -
Intendment of S.6(5) Expln. And its importance, explained and emphasized.
The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the HS Act, 1956 recognizing the partition bought about by a decree of a court or effected by a registered instrument. The partition so effected before 20-12-2004 is saved.
37. In the present suit also on 14.2.1998 all the brothers and sisters of the Defendant No.3 have executed Ex.D.2 Power of Attorney in favour of the wife of Defendant No.3 and in turn she executed registered Release Deed in respect of Suit Schedule 'A' Property in favour of Defendant No.3 on 1.4.1998. The 41 O.S.No.26348/2012 said Release Deed is questioned by the Plaintiffs after infinite time in the year 2016. Therefore, the partition claimed by the Plaintiff No.1 on Suit Schedule 'A' Property is clearly hit by the principles of this decision.
38. No doubt, though the suit has been filed in the year 2012 and for the first time the Plaintiff sought the relief of declaration in the year 2016 to declare the Release Deed dtd: 1.4.1998 executed by the wife of Defendant No.3 in favour of 3 rd Defendant is not binding on the Plaintiffs share over the Suit Schedule Properties, as the same has been created by forging the signatures of the Plaintiffs in Ex.D.2 etc. However, according to the decision reported in AIR 2011 SC 41 in between Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) V/s Ramesh Chander & Others of Hon'ble Apex Court, the Plaintiffs omission to claim the relief of declaration by filing the suit and got amended the plaint after so many years, the said relief is prima-
facie barred under Article 54 of Limitation Act. For better appreciation of the above decision, I would like 42 O.S.No.26348/2012 to re-produce the relevant part of the aforesaid judgment as under:
Civil P.C. (5 of 1908), O.2 R.2, O.6 R.17 - Specific Relief Act (47 of 1963), S.20, S.34 - Limitation Act (36 of 1963), Art.54 - Suit for declaration of title and injunction - Omission to claim relief of specific performance of agreement to sell - It would amount to relinquishment of that part of claim - Subsequent inclusion of plea of specific performance by way of amendment after 11 years of filing of suit - Cannot be allowed being barred by limitation under Art.54 of Limitation Act.
39. The principles of the above decision is aptly applicable to the case on hand and the arguments canvassed by the Learned Counsel for the for the Defendant No.3. As aforesaid in the present suit also at the time of filing of the suit the Plaintiffs have not sought for any declaration with regard to Release Deed dtd: 4.2.1998. When the Defendant No.1 and 3 filed written statement and taken up contention that without claiming the relief of declaration to declare the 43 O.S.No.26348/2012 Release Deed as null and void the Plaintiffs are not entitled for the relief of partition, then only the Plaintiffs got amended the plaint, till then the Plaintiffs were silent spectator on the issue of GPA or on the Release Deed. The Plaintiffs and other sisters of the Defendant No.3 were aware that they have signed the Power of Attorney before the suit is initiated by the Plaintiffs, but they have not sought any relief with regard to allegation of fraud in connection with Ex.D.2 Power of Attorney. Therefore, the limitation would start running from the date of suit filed by the Plaintiffs. When the Plaintiffs have not sought the relief of declaration while filing the suit with regard to alleged forging of the signatures of the Plaintiffs in the Power of Attorney, it would amount to relinquishment of claim of declaration and subsequent amendment after lapse of so many years to include the relief of declaration cannot be allowed and it is prima-facie barred by limitation.
40. Further the Learned Counsel for the for the Defendant No.3 in his further arguments contended that though the Plaintiff No.1 was signatory to Ex.D.2 and the said Ex.D.2 had been taken place in the year 44 O.S.No.26348/2012 1998, the suit filed in the year 2012 and the Plaintiffs got amended the plaint in the year 2016 and 2020 and also for the first time the Plaintiffs claimed the relief of declaration in the year 2020 that the Defendant No.3 has created General Power of Attorney on 14.2.1998 by forging the signature of Plaintiffs and created Release Deed on 1.4.1998. the suit brought in respect of declaration with regard to alleged General Power of Attorney and Release Deed after 12 years from the date of Release Deed is barred by law of limitation. Therefore, the Plaintiffs were not entitle for the reliefs as prayed in the suit. In this connection the Counsel for the Defendant No.3 further relied the decisions of the Hon'ble Apex Court in 2019 SC 1430 between Raghavendra Sharan Singh V/s Ram Prasanna Singh (Dead) by Lrs., in the above decision the Hon'ble Apex Court held thus:
Civil P.C. (5 of 1908) O.7 R.11(d) - Rejection of plaint - Ground of limitation - Suit for declaration that Gift Deed executed in favour of Defendant is sham transaction and not binding - Filed after more than 22 years of execution of registered Gift Deed - Plaintiff not praying for any declaration 45 O.S.No.26348/2012 to set aside Gift Deed as in that case suit would be clearly barred by limitation under Art. 59 of Limitation Act - Averments in plaint cleverly drafted to bring suit within period of limitation - Plaint liable to be rejected. Limitation Act (36 of 1963), Art.59.
41. Further in the decision reported in 2019 (4) KCCR 3891 between M/s Durga Projects and Infrastructure Pvt., Ltd., Bengaluru, V/s Sri. S. Rajagopala Reddy & Others, the Hon'ble High Court of Karnataka held thus:
Civil Procedure Code, 1908 -
Order 7 Rule 11(a)(c)(d) and Section 115 - CRP against order dismissing IA made under Order 7, Rule 11(a)(c) and (d) read with Section 151 CPC - Application made by Defendants 1 to 3 and 5
- Suit for declaration that Plaintiffs are absolute owners of their 1/3 share and the alleged Sale Deeds are not binding on them - Plea of Defendants that without challenging the alleged Sale Deeds executed 12 years 46 O.S.No.26348/2012 ago, suit for declaration is not maintainable and barred by limitation - Suppression of fact as to execution of GPA and agreement of sale.
42. The principles laid down in the above decisions of Hon'ble Apex Court and Hon'ble High Court of Karnataka are aptly applicable to the case on hand. In the present suit also initially the Plaintiffs have filed the suit in the year 2012 and simply prayed the relief of partition and separate possession of their 2/8th share in the Suit Schedule 'A' & 'B' Properties. When the Defendant No.3 has appeared through his counsel and contended that without seeking the relief of declaration to declare the Release Deed dtd: 1.4.1998 as null and void, the present suit for partition is not maintainable, then only in the year 2016 and 2020 they got amended the plaint and inserted the relief of declaration with regard to the Release Deed dtd: 1.4.1998. When the prima-facie suit filed by the Plaintiffs after lapse of more than 20 years of execution of Release Deed and not prayed the relief for declaration to set aside the Release Deed at the time of filing of the suit and subsequent 47 O.S.No.26348/2012 amendment to the plaint and prayer itself would be clearly barred by limitation under Article 59 of Limitation Act.
43. Merely, clever drafting of the plaint to bring the suit within the period of limitation is not a ground to hold that the Plaintiffs are entitle for the reliefs as prayed in the suit. Further as aforesaid on careful perusal of plaint averments and also admission of PW.1, it can very well be said that the Plaintiffs were very much aware of transactions taken place with regard to Ex.D.2 and Ex.D.9, that took place in the year 1998 itself, they have suppressed the material facts of execution of Release Deed and filed the suit.
Further they did not challenge all those transaction for a quite long time, when even the Plaintiff No.1 was party to the Ex.D.2. Therefore, the Plaintiff do not get right to claim the said relief in the suit.
44. As aforesaid, PW.1 has admitted the signature of his mother on Ex.D.1 & Ex.D.2 and even in Ex.D.9 it is clearly mentioned that all the sisters and brother of Defendant No.3 by receiving an amount of Rs.1,00,000/- from the Defendant No.3 have released their right over the Suit Schedule 'A' 48 O.S.No.26348/2012 Property in favour of Defendant No.3. As aforesaid, the Plaintiffs have not at all claimed the relief of declaration with regard to Release Deed within the period of limitation. Even though the Defendants argued that the Plaintiffs were aware about the execution of Power of Attorney in the year 1998 and they first time filed the suit in the year 2012 only for the relief of partition of their share in the suit properties and subsequently got amended the plaint and sought the relief of declaration with regard to alleged Gift Deed in the year 2020. All those things would clearly indicates that the Plaintiffs impliedly admitted the ownership and possession of the Defendant No.3 over the Suit A Schedule Property. Even though the Plaintiffs were aware about the execution of Ex.D.2 & Ex.D.9 in the year 1998 itself they have not challenged the said General Power of Attorney and Release Deed within the period of limitation. Therefore, as contended by the Defendant No.3, the General Power of Attorney dtd: 14.2.1998 and Release Deed dtd: 1.4.1998 are clearly binding on the Plaintiffs and Defendant No.1, 2, 4 & 5. Therefore, I answer Issue No.1 in the Negative, Addl. Issue Nos.1 & 4 in the Affirmative.
49 O.S.No.26348/201245. Issue No.3 & 4:-
Since the above issues are inter related and finding on one issue is having bearing on the other, in order to avoid repetition of facts, the above issues have been taken up together for consideration.
46. The Defendant No.1 & 3 have taken up specific defense in their written statement that the suit of the Plaintiffs is bad for non-joinder of necessary parties and the Defendant No.3 has developed the Suit Schedule 'B' Property and has constructed a house in the Suit Schedule 'A' Property. The Defendant No.1 initially in the written statement itself has stated that the suit is not maintainable as one Manjunath the legal heir of S. Gopal Rao is left out and not arrayed as one of the necessary party to this suit. Even the family tree produced by the Plaintiffs is incomplete etc. In this connection, during the course of cross-examination made to PW.1 it is suggested that G. Manjunath is also the son of S. Gopala for that PW.1 admitted as true and correct. In Ex.P.1 the Plaintiffs have simply stated that Manjunatha is absconding. However, no steps have been taken by the Plaintiffs to traced out the 50 O.S.No.26348/2012 whereabouts of G. Manjunath. Even PW.1 admitted in the cross-examination that Manjunath was taking treatment in Cadabams Arogya Kendra, Kanakaapura Road, and he enquired about the whereabouts of Manjunath and he could not get any information. They have not lodged any missing complaint with the Jurisdictional Police. Further stated that he had filed application to impleading him in the year 2016 and on the basis of information furnished by Defendant No.3 he is stating that Manjunath is missing. No doubt, no effective steps have been taken to trace out the whereabouts of Manjunath or they not filed any suit to declare that the Manjunath is died as per law. Therefore, prima- facie the suit is suffering from non-joinder of necessary party.
47. On perusal of order sheet and the records, it is clear that later the Plaintiffs have moved IA.No.2/2022 under Order 1 Rule 10 R/w Section 151 of CPC to implead Manjunath as a party in this suit and the said application came to be allowed. However, the Plaintiffs have not taken effective steps to serve the summons on Defendant No.7 51 O.S.No.26348/2012 i.e,.Manjunatha. Thereafter, on 4.7.2023 this Court observed that insiptie of sufficient opportunities the Plaintiffs remained absent and did not take any steps against the Defendant No.7. Accordingly, the suit against the Defendant No.7 has been dismissed.
48. Likewise, on 17.7.2023, the Counsel for the Defendant No.3 had filed a memo reporting the death of Plaintiff No.2 in the year 2021. Even the Plaintiff No.1 has not chosen to produce the Death Certificate of Plaintiff No.2, though the Plaintiff No.2 is the maternal uncle of Plaintiff No.1(a) for obvious reasons. Further it is observed in the order sheet dtd:
5.12.2023 that no steps has been taken against the Lrs of Plaintiff No.2, as such the suit against the Plaintiff No.2 has been abated. In this connection, the PW.1 in his cross-examination admitted that Plaintiff No.2 is died about 03 years back, he survived by wife and two children and his wife name is Nagaratna and daughter name is Sowmya and son name is Raghavendra. He has no contact with them.
49. Admittedly, it was the duty of the Plaintiff No.1 to bring the Lrs of Plaintiff No.2 on record in this 52 O.S.No.26348/2012 suit. Even the Plaintiff No.1 has not made any efforts to traced out the whereabouts of legal heirs of Plaintiff No.2. Since the Plaintiff No.2 is the uncle of PW.1 he should have bring the Lrs of Plaintiff No.2 on record. Therefore, prima-facie it appears that the suit filed by the Plaintiffs for the relief of partition is not maintainable as the same is suffered from non-joinder of necessary parties. Therefore, the genealogy produced by the Plaintiffs as per Ex.P.1 is not in accordance with real facts. When the Plaintiffs have filed the suit for partition, all the legal heirs of deceased S. Gopal Rao should have been brought on record and they are necessary and proper parties to this suit. Unless and until all the legal heirs of deceased S. Gopal Rao are brought on record the Plaintiffs cannot entitle for the relief of partition in this suit.
50. The Defendant No.1 & 3 have contended that the Defendant No.3 has developed the Suit Schedule 'B' Property and constructed a house in the Suit Schedule 'A' Property. Admittedly, according Ex.D.1 all the brothers and sisters of Defendant No.3 have permitted the Defendant No.3 to avail loan from 53 O.S.No.26348/2012 the Society for construction of house in Suit Schedule 'A' Property. Even PW.1 clearly admitted that there was a house warming ceremony in the year 2000, PW.1 himself and his mother were attended the house warming ceremony. So this itself clearly goes to show that the Defendant No.3 had constructed building over the Suit Schedule 'A' Property by obtaining loan from the Society. It is further contention of the Defendant No1. & 3 is that the Defendant No.3 has developed the Suit Schedule 'B' Property. The documents produced by the Defendant No.3 reveals that one Chikkanna had filed an application before the Land Tribunal seeking occupancy right in respect of Suit Schedule 'B' Property and the revenue proceedings have been initiated in RRT/BS/44/1996-1997. Even the order has been passed in favour of one Venkataramaiah and it has been challenged and later the application filed before the Land Tribunal by Chikkanna was rejected. It appears that the Defendant No.3 had contested all the said proceedings on behalf of his mother before revenue courts.
51. The Defendant No.3 had contended that he has developed the Suit Schedule 'B' Property by 54 O.S.No.26348/2012 investing huge money. On the other hand, the Plaintiff No.1(a) is not aware about the said cultivation as he had visited the Suit Schedule 'B' Property about 15-20 years back. When such being the fact, from the oral and documentary evidence placed by the Defendants, it is clear that the Defendant No.3 had developed the Suit Schedule 'B' Property by investing money. Therefore, I answer Issue No.3 & 4 in the Affirmative.
52. Addl. Issue No.2:-
The Defendant No.3 has taken up contention in this suit that without seeking the relief of cancellation of Release Deed dtd: 1.4.1998 the suit filed by the Plaintiffs claiming the relief of partition is not maintainable. Admittedly, in this suit the Plaintiffs initially simply filed the suit for partition and thereafter claimed that the Release Deed dtd:
1.4.1998 is not binding on the Plaintiffs share over the Suit Schedule 'A' Property. Admittedly, the Plaintiffs should have claimed that the said Release Deed has to be declared as null and void. Anyhow, already this Court comes to conclusion that the Release Deed dtd: 1.4.1998 is binding on the Plaintiffs and Defendant No.1, 2, 4 & 5.55 O.S.No.26348/2012
53. Moreover, according to the decision relied upon by the counsel for the Defendant No.3 in 2019 (4) KCCR 3891, the Plaintiffs claiming the relief of possession of the Suit Property, he must sought for the relief of declaration to set aside the concerned Deeds which is claiming to be not binding on them. But in this suit simply claimed that Ex.D.9 is not binding on their shares over the Suit 'A' Schedule Property.
54. I have gone through the above decision. In Para No.8 of the said judgment it is held thus:
Para - 8. As regards limitation, in Para 38 of the plaint it is clearly stated that the cause of action arose on 18.03.2005, 29.03.2007 and 15.06.2016. 18.03.2005 is the date when the first defendant executed a sale deed in favour of third defendant. That means, the cause of action first arose on 18.03.2005. This is a suit for declaration and possession. Just because possession is claimed, 12 years period of limitation is not available. Unless the sale deeds are set aside and the plaintiffs' title is declared, they are not entitled to possession. Declaration is the main relief in the circumstances pleaded.
Article 58 of the Limitation Act is applicable and therefore the limitation is to be reckoned from the first date; the 56 O.S.No.26348/2012 subsequent dates pleaded do not extend the limitation period.
55. The principles of the above decision is aptly applicable to the case on hand. In this suit also the Plaintiffs contended that the Release Deed dtd:
1.4.1998 is not binding on the Plaintiffs. However, the Plaintiffs have not claimed any declaration to declare that the said Release Deed has to be set aside and her share has to be declared. Unless she prayed for setting aside the Release Deed she is entitle for the relief of partition. That apart, according to above decision, Article 58 of the Limitation Act is applicable and therefore, the limitation is reckoned from the first date and i.e., from the date of execution of Release Deed, the subsequent dates as pleaded by the Plaintiffs in their plaint do not extend the limit of limitation period. Therefore, this Court opines that the Plaintiffs ought to have claimed the relief of declaration to declare that the Release Deed dtd:
1.4.1998 has to be cancelled. Hence, I answer this Issue in the Affirmative.
56. Addl. Issue No.3:-
The Defendant No.1 & 3 in their written statement have contended that the Plaintiffs have not 57 O.S.No.26348/2012 properly valued the suit and the court fee paid by the Plaintiffs is not proper and correct. However, the Plaintiffs at the filing of this suit have filed valuation slip and paid court fee of Rs.425/- as per Section 35(2) of the Karnataka Court Fee and Suits Valuation Act. Further the Plaintiffs have valued the Suit Schedule 'A' & 'B' Properties for Rs.80,00,000/- and Rs.30,00,000/- each. It is true that after amendment of plaint the Plaintiffs have not paid the separate court fee for the relief of declaration. Admittedly, the Ex.D.9 executed on the basis of Ex.D.2 Power of Attorney executed by the Plaintiffs and other brothers and sisters of Defendant No.3. So the Plaintiffs are also parties to the Ex.D.9. Therefore, the Plaintiffs ought to have paid court fee under Section 38 of the Kartnataka Court Fee and Suits Valuation Act. Therefore, this Court opines that the court fee paid by the Plaintiffs is not sufficient and correct. Accordingly, I answer this Issue in the Negative.
57. Issue No.2:-
In view of detailed discussion and findings given by this Court on the foregoing issues, it is clear that though the Plaintiffs are having share over the Suit 58 O.S.No.26348/2012 Schedule 'A' Property, but in view of Ex.D.2 and Ex.D.9 they are not entitle for any share over the same. No doubt, the Suit Schedule 'B' Property belongs to the mother of the Plaintiffs and Defendants and the Plaintiffs are also having equal share over the same. Even the DW.1 has also clearly admitted the same in his cross-examination. The Defendant No.3 contended that his mother had executed General Power of Attorney as per Ex.D.23 and gave entire right of the Suit Schedule 'B' Property in his favour. Anyhow, as on today still the Suit Schedule 'B' Property is standing in the name of mother of the Plaintiffs. Even all the court proceedings before the revenue authority also took place in her name only. No doubt, the Plaintiffs and Defendants are having equal right over the Suit Property. However, in view of the Plaintiffs have not brought all the legal heirs of deceased S. Gopal Rao as parties in this suit and also in view of detailed discussion and findings given on foregoing issues, this Court cannot say that till today the Suit Schedule Properties are available for partition. Therefore, I answer this issue in the Negative.59 O.S.No.26348/2012
58. Issue No.5 & 6:-
In view of detailed discussion and findings given by this Court on the foregoing issues, it is clear that the Plaintiffs, Defendant No.2 & 5 have failed to prove that they are entitle for the relief of partition in the Suit Schedule Properties. Similarly, the Plaintiffs have failed to establish that they are entitle for the relief of declaration as claimed in the plaint prayer (a)(i) of the suit plaint. Hence, I answer these issues in the Negative.
59. Issue No.7:-
In view of the findings on the above issues, the suit of the Plaintiffs deserves to be dismissed with costs. 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 10th day of January 2025.) [Sri. Sreepada N] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73).60 O.S.No.26348/2012
SCHEDULE "A" PROPERTY All that piece and parcel of the residential house bearing Old No.31, presently BBMP No.45, 29 th Division, PID No.49-57-45, Ward No.49, Surveyor Street, K.G. Nagara, Basavanagudi, measuring East to West 23'.6" X 24'.3" and North to South 6'.2" X 12'.2", bounded on the-
East by : Private Property. West by : Private Property. North by : Conservancy.
South by : Common space leading for entrance to Surveyor Street & Private Property No.45/1.
SCHEDULE "B" PROPERTY All that piece and parcel of land bearing Sy.No.178/1 measuring 01 Acre 16 Guntas including 03 Guntas Kharab land situated at Ramapura @ Akkirampura Village, Holavanahalli Hobli, Koratagere Taluk, Tumkur District, bounded as on the-
East by : Jayamangala River.
West by : Gomala.
61 O.S.No.26348/2012
North by : Remaining land in same Survey Number.
South by : Gomala.
[Sri. Sreepada N]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73).
ANNEXURES
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1: N.G. Shivaprasad.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : Genealogical Tree.
Ex.P.2 & : Death Certificate of S. Gopal Rao & Ex.P.3 Smt. Sushilamma.
Ex.P.4 : Mutation Order No.40/2004-05.
Ex.P.5 : RTC in respect of Sy.No.178.
Ex.P.6 : Khata Extract.
Ex.P.7 : Endorsement dtd: 8.7.2022 issued by
BBMP.
Ex.P.8 : Certified copy of Release Deed dtd:
1.4.1998.
Ex.P.9 : Certified copy of Gift Deed dtd: 6.2.1946.
62 O.S.No.26348/2012
Ex.P.10 : 2 Mutation Order No.T19/2020-21. & Ex.P.11 Ex.P.12 : RTC in respect of Sy.No.178/1.
Ex.P.13 : Death Certificate of G. Geetha.
Ex.P.14 : Death Certificate of N.G. Pushpalatha.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1 : G. Subramanya. DW.2 : Mrs. Seethalakshmi N.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D.1 : Affidavit dtd: 5.7.1997.
Ex.D.2 : General Power of Attorney 14.2.1998.
Ex.D.3 : Certified copy of Final Decree in O.S.No.125/1995.
Ex.D.4 : Certified copy of Compromise Petition in O.S.No.125/1995.
Ex.D.5 : Encumbrance Certificate from 1.4.1968 to 23.9.1996.
Ex.D.6 : Recording of the Family Arrangement Deed dtd: 10.11.1983.
Ex.D.7 & : Khatha Bifurcation in the name of 63 O.S.No.26348/2012 Ex.D.7(a) Defendant No.3 dtd: 1.4.1995 and Khata Certificate dtd: 16.3.1996.
Ex.D.8 & : Khata Certificate dtd: 11.7.1998 and Ex.D.8(a) Endorsement given by BBMP dtd:
22.1.1998.
Ex.D.9 : Release Deed dtd: 1.4.1998.
Ex.D.10 : Memorandum of deposit of Title Deeds dtd: 2.1.1998.
Ex.D.11 : Discharge Certificate issued by Sir M. Visveshwaraiah Co-Operative Bank Ltd.
Ex.D.12, : 7 Encumbrance Certificates. Ex.D.12 (a to f) Ex.D.13 : Sanction Plan dtd: 1.2.1989.
Ex.D.14 : Electricity & Water connection related documents and payment receipts.
Ex.D.15 : Tax Paid Receipts from 1970 to 2024.
Ex.D.16 : Valuation Report dtd: 28.3.2000.
Ex.D.17 : IT Returns for Asst. Year 2000-2001.
Ex.D.18, : 6 Photographs with Pen Drive. Ex.D.18 (a to g) 64 O.S.No.26348/2012 Ex.D.19 : Entire Medical Discharge Report of Smt. Susheelamma.
Ex.D.20 : Hospital expenses and bills of Smt. Susheelamma.
Ex.D.21 : Conditional Gift Deed dtd: 6.2.1946.
Ex.D.22 : Deed of Gift from P. seetharamaiah.
Ex.D.23 : GPA dtd: 26.10.1998.
Ex.D.24 : Notice dtd: 25.7.2002.
Ex.D.25 : Final Order dtd: 30.8.2004.
Ex.D.26 : Amended Order in RRT(A): 68/2002-03.
Ex.D.27 : Survey Sketch.
Ex.D.28 : Tippani Report.
Ex.D.29 : Mutation Register of entire Sy.No.178/1.
Ex.D.30, : 15 RTCs.
Ex.D.30 (a to n) Ex.D.31 : E-Khatha for 2021-2022.
Ex.D.32 : E-Mutation Register.
Ex.D.33 : 4 Patta and Receipt Book.
Ex.D.33 (a to c) 65 O.S.No.26348/2012 Ex.D.34 : 14 Tax Paid Receipts from 1972 to 2022- Ex.D.34 2023.
(a to m) Ex.D.35 : Certificate issued by Chartered Accountant along with statement.
[Sri. Sreepada N] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73).