Bangalore District Court
Smt.C.L.Sujatha vs Smt.Sarojamma on 9 January, 2020
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT: SRI. SHUBHAVEER B., B.Com.,LL.B.
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 9TH DAY OF JANUARY, 2020
O.S.No.9127/2011
Plaintiff- Smt.C.L.Sujatha
@ Sujatha Shree,
d/o. Late C.Lingegowda,
w/o. K.N.Shivananja,
Aged about 46 years,
r/at. No.13, "Ameya"
1st Main (Old 4th Main)
Karekallu, Kamakshipalya,
Behind SBI Officer's colony,
Basaveshwara Nagara,
Bengaluru -560079.
(By Sri.H.P.Leeladhar- advocate)
-vs-
Defendants- 1. Smt.Sarojamma,
w/o. Late C.Lingegowda,
Aged about 62 years.
2. Sri.C.L.Shivakumar,
s/o. Late C.Lingegowda,
Aged about 37 years.
Both defendants No.1 & 2
2
O.S.No.9127/2011
R/at No.4, 6th 'B' Main,
Tata Silk Farm,
Bengaluru -560082.
3. Sri.C.L.Shivaprakash,
s/o. Late C.Lingegowda,
Aged about 35 years.
4. Smt.M.R.Deepa Shree,
w/o. C.L.Shivaprakash,
Aged about 32 years.
Both defendants No.3 & 4
r/at. No.517/9, "Kushi"
8th cross, 7th Block,
Jayanagar, Bengaluru-560028.
5. Smt.C.L.Sunitha,
d/o. Late C.Lingegowda,
w/o. Mallikarjunaiah,
Aged about 43 years,
R/at No.3418/92,
Sri Guru Mallesha Krupa,
2nd Main Road, 13th cross,
Shastri Nagara, BSK 2nd
stage, Bengaluru -560028.
and also working in
Administrative Department,
Bengaluru Hospital,
No.202, R.V.Road,
Basavanagudi,
3
O.S.No.9127/2011
Bengaluru -560004.
6.Smt.C.L.Savitha,
d/o. Late Lingegowda,
Aged about 42 years,
r/at No.2, 2nd cross,
2nd main, Kashi Nagara,
Yelachenahalli,
Kanakapura Main Road,
J.P.Nagar post,
Bengaluru -560078.
And also working as
Superintendent
O/O the Director of
Horticulture, HOPCOMS
Office, Double Road Gate,
Lalbagh, Bengaluru -4.
(By Sri.M.S.Bhagwath- advocate)
Date of Institution of the suit : 31.12.2011
Nature of the suit : Partition, separate
possession, declarations
mense profits &
permanent injunction
Date of commencement of
recording of the evidence : 30.01.2014
Date on which the Judgment
was pronounced : 09.01.2020
Total Duration Years Months Days
4
O.S.No.9127/2011
: 08 00 09
(SHUBHAVEER B.)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
The above suit is filed for partition, separate possession, mense profits, declarations and for permanent injunction.
2. The brief facts of the case of the plaintiff are that the plaintiff, defendants 2,3,5 and 6 are the daughters and defendant No.1 is the wife of Linge Gowda, who was serving in a Government department, who died intestate, on 31.08.1985, leaving behind the plaintiff, defendants 1 to 3, 5 and 6 as his successors and legal heirs.
3. It is further alleged that the suit schdule item No.1, i.e., Sy.No17/2, now Sy.No17/4 and 5, mesuring 1 acre situating at Arehosahalli and Sy.No.30 measuring 5 acre 15 guntas situating at Arehosahalli village are the ancestral 5 O.S.No.9127/2011 properties of the father of the plaintiff. During the lifetime of said C.Linge Gowda, Khatha of the siad property was transferred in the name of the father of the plaintiff/C.Linge Gowda. Subsequent to the death of the father of the plaintiff, now suit schedule item No.1 property stands in the name of defendants 1 to 3. After the death of said C.Linge Gowda, now the Khatha of the suit schdule item No. 1 and 2 properties stands in the joint names of defendants 1 to 3.
5. It is further alleged that the suit schedule item No.3 property, i.e., house property, bearing old No.3, present Corporation No.4, situated at 6 th 'B' main road, Tata Silk Farm, measuring 36 x 23 ft., consisting of ground, first floor and two rooms in the 2nd floor; was purchased by the father of the plaintiff, as per registered sale deed, dated 12.08.1970. After the death of the said C.Linge Gowda, the Khatha of the same 6 O.S.No.9127/2011 was standing in the name of the 1 st defendant and subsequently, now stands in the name of defendants 2 and 3.
6. It is further alleged that after the death of the said C.Linge Gowda, all the retirement benefits and other monetary benefits of the father was paid to the 1 st defendant/wife of late C.Linge Gowda. In addition to it, in suit schedule item No.3, there are four tenaments and two independent rooms, in which the 1st defendant is residing in the 1st floor. The ground floor and the 2nd floor and the 2 rooms were leased out and the defendants are getting rent of Rs.35,000/-, per month. The 1 st defendant purchased suit schedule item No.4 property, i.e., vacant site No.575, situating at 3 rd block, 6th stage, Banashankari, Bengaluru; as per registered sale deed, dated 30.09.2005 from and out of necleus of the ancestral property, from the monetary benefits left by the deceased father of the plaintiff as well as out of the income generated by rent 7 O.S.No.9127/2011 received by the 1st defendant. Till date, the suit schedule properties are not divided. The plaintiff is in joint possession of the suit schedule properties.
7. It is further alleged that with a fraudulent intention, the 1st defendant, without having absolute right, title, or interest, executed a registered gift deed, dated 23.01.2008, in favour of 2 nd defendant, in respect of a portion on the northern side of suit schedule item No.3 property, measuring East to West: 23 ft. and North to South 28 ft. and on the same date, the 1 st defendant executed a registered gift deed, in favour of defendant No.3, in respect of the southern portion of suit schedule item No.3 property, measuring East to West: 23 ft. and North to South: 28 ft.
8. It is further alleged that after executing the said gift deeds, since there were some mistakes therein, the 1 st 8 O.S.No.9127/2011 defendant also executed registered rectification deeds, both dated 27.10.2010, in favour of defendants 2 and 3 respectively.
9. It is further alleged that the defendants 1 to 3, 5 and 6, in order to deprive the legitimate right, title, or interest, or share, of the plaintiff in suit schedule item Nos.1, 2 and 3, created a false registered release deed, dated 01.12.2011, in favour of defendant No.2, releasing their right, title, or interest, over the suit schedule item Nos.1, 2 and 3 properties, upon which, none of the defendants had absolute right, title, or interest, or authority to execute the release deed.
10. It is further alleged that on the very same date, defendants No.1, 3, 5 and 6 executed a registered release deed, dated 01.12.2011, in favour of defendant No.2, in respect of suit schedule item Nos.1, 2 and 3, properties in order to deprive the legitimate right, title and share of the plaintiff over the same.
9
O.S.No.9127/2011
11. It is further alleged that the 1 st defendant, without having any absolute right, fraudulently has executed a registered gift deed, on 12.06.2009, in favour of 4 th defendant, in respect of suit schedule item No.4 property. All the above registered documents are not binding on the plaintiff and the said documents are void, ab-initio.
12. It is further alleged that the demand made by the plaintiff to effect partition was of no use. The defendants are trying to alienate some of the suit schedule properties. Hence the above suit is filed seeking the reliefs of partition, separate possession, mense profits and the following reliefs:
(c) the registered gift deed, executed by the 1 st defendant in favour of 2nd defendant on 23.01.2008, vide Book-I, Doc.No.JAY1-03775-07-08 incorporated in CD No.JAYD-101, dated 25.01.2008, vide document No.9 is null and void and not binding on the plaintiff;10
O.S.No.9127/2011
(d) the registered gift deed, executed by the 1 st defendant in favour of 3rd defendant on 23.01.2008, vide Book-I, Doc.No.JAY1-03776-2007-08 incorporated in CD No.JAYD-101, dated 25.01.2008, vide document No.10 is null and void and not binding on the plaintiff;
(e) the registered rectification deed, executed by the 1 st defendant in favour of 2nd defendant on 27.10.2010, vide Book- I, Doc.No.JAY1-013778-2010-11 incorporated in CD No.JAYD- 121, dated 11.11.2010, vide document No.12 is null and void and not binding on the plaintiff;
(f) the registered rectification deed, executed by the 1 st defendant in favour of 3rd defendant on 27.10.2010, vide Book- I, Doc.No.JAY1-01339-2010-11 incorporated in CD No.JAYD- 121, dated 11.11.2010, vide document No.11 is null and void and not binding on the plaintiff;
11
O.S.No.9127/2011
(g) the registered release deed dated 01.12.2011, executed by the defendants No.1, 3, 5 & 6 in favour of 2 nd defendant, vide Book-I, Doc.No.JAY1-01726-2011-12 incorporated in CD No.JAYD-134, dated 01.12.2011, vide document No.14 is null and void and not binding on the plaintiff;
(h) the registered release deed dated 01.12.2011, executed by the defendants No.1, 2, 5 & 6 in favour of 3 rd defendant, vide Book-I, Doc.No.JAY1-01727-2011-12 incorporated in CD No.JAYD-134, dated 01.12.2011, vide document No.13 is null and void and not binding on the plaintiff;
(i) the registered gift deed dated 12.06.2009, executed by the 1st defendant in favour of 4th defendant, vide Book-I, Doc.No.JPN-1-01019-2009-10 incorporated in CD No.JPND-44, 12 O.S.No.9127/2011 dated 12.06.2009, in the suit schedule No.4 is null and void and not binding on the plaintiff vide document No.15;
(j) grant permanent injunction restraining the defendants, or agents, or anybody claiming under them, from interfering with the peaceful possession and enjoyment of her 1/6 th share in the suit schedule properties.
13. The defendants in their written statement, except admitting the relationship between the plaintiff and defendants; execution of registered gift deeds, registered rectification deeds and three registered release deeds; denied all other allegations made in the plaint.
14. The defendants contend that after the death of late C.Linge Gowda/father in 1986, oral partition took place among the defendants and plaintiff and the properties were transferred in the names of defendants 1 to 3. The suit schedule item Nos.1,2 and 3 properties were already partitioned orally. The 13 O.S.No.9127/2011 father/C.Linge Gowda expired on 31.08.1985. The 1 st defendant, being his wife, received his pensionary benefits and drawing family pension. The suit schedule item No.4 property, i.e., vacant site No.575, is the self-acquired property of the 1st defendant. Even under the pension Rules, the 1 st defendant is entitled to for the benefit of the family pension. The suit schedule item Nos.1 and 2 properties are agricultural properties, in respect of which, paalu patti was already executed in 1986. Therefore, the plaintiff is not entitled to any share. Since the partition had already taken place in 1986 in respect of joint family properties, the plaintiff is not entitled to any right in any of the suit schedule properties. Hence prayed for dismissal of the suit.
15. From the pleadings the following issues are framed -
1. Whether plaintiff proves that she is having 14 O.S.No.9127/2011 1/6th share in the suit schedule properties?
2. Whether plaintiff proves that the registered gift deed, executed by defendant No.1, in favour of defendant No.3 on 23.1.2008, vide book-I, document No.JAY-1-03776-2007-08 incorporated in CD No. JAYD-101, dated 25.01.2008, item No.1 on the southern side, vide document No. 10 is null and void and not binding on the plaintiff?
3. Whether plaintiff proves that the rectification deed, executed by defendant No.1, in favour of defendant No.2 on 27/10/2010, vide Book- I, document No. JAY-1-01338-2010-11 incorporated in CD No. JAYD-121, dated 11.11.2010,vide document No.12 is null and void and not binding on the plaintiff?
4. Whether plaintiff proves that the registered rectification deed, executed by defendant No.1, in favour of defendant No.3 on 27/10/2010, vide Book-I, document No. JAY- 1-01339-2010-11 incorporated in CD No. JAYD-121, dated 11.11.2010, vide document No.11, is null and void and not binding on the plaintiff?
5. Whether plaintiff proves that the registered release deed, dated 1.12.2011, executed by 15 O.S.No.9127/2011 defendant Nos.1, 3, 5 and 6, in favour of 2 nd defendant, vide Book-I, document No. JAY-1- 01726-2011-12 incorporated in CD No. JAYD- 134, dated 01.12.2011, in respect of item No.3, on the northern side and southern side of item No.1, southern side of item No.2, in the schedule vide document No.14, is null and void and not binding on the plaintiff?
6. Whether plaintiff proves that the registered release deed, dated 1.12.2011, executed by defendant Nos.1, 2, 5 and 6, in favour of 3 rd defendant, vide Book-I, document No. JAY-1- 01727-2011-12 incorporated in CD No. JAYD- 134, dated 01.12.2011, in respect of item No.3, on the northern side and southern side of item No.1, southern side of item No.2, in the schedule vide document No.13, is null and void and not binding on the plaintiff?
7. Whether plaintiff proves that the registered gift deed, dated 12.6.2009, executed by 1 st defendant, in favour of 4th defendant, vide book-I, document No.JPN-1-01019-09-10 incorporated in CD No. JPND-44, dated 12.06.2009, in respect of item No.4 in the schedule is null and void and not binding on the plaintiff?
8. Whether defendants prove that the oral 16 O.S.No.9127/2011 partition took place between plaintiff and defendants long back in the year 1986 and plaintiff is not entitled for any share in the suit schedule properties as alleged in para-12 of the written statement?
9. Whether defendants prove that the court fee paid is not sufficient as alleged in para-15 of the written statement?
10. Whether plaintiff is entitled for the relief sought for?
11. What order, or decree?
16. On behalf of the plaintiff, the plaintiff examined herself as P.W.1, who deposes in accordance with the allegations made in the plaint. Ex.P1 to Ex.P22 are marked. On behalf of the defendants, 3 rd defendant himself got examined as D.W.1, who deposes in accordance with the pleadings in the written statement of the defendants. (However, there are certain evidence, without pleadings, which cannot be considered as per principles of ruling reported in 17 O.S.No.9127/2011 AIR 1987 SC, 1242). Ex.D1 to Ex.D80 are marked. Arguments heard.
17. The answers to the above issues are-
Issue No.1 Partly positive
Issue No.2 In the positive
Issue No.3 In the positive
Issue No.4 In the positive
Issue No.5 In the positive
Issue No.6 In the positive
Issue No.7 In the negative
Issue No.8 In the negative
Issue No.9 In the negative
Issue No.10&11 As per final order, for the
following-
REASONS
18. Issue No.1 - The undisputed, or admitted facts of this case are the relationship between the plaintiff and defendants; suit schedule item Nos.1 and 2 properties are the ancestral properties of the father of the plaintiff/C.Linge Gowda(even at the time of advancing the final arguments also, 18 O.S.No.9127/2011 on behalf of the defendants, it was fairly conceded that suit schedule item Nos.1 and 2 properties are the ancestral properties); the suit schedule item No.2 property was purchased by the father, who was a Government employee. It is also an admitted fact that suit schedule item No.4 property was purchased in the name of the 1st defendant/Sarojamma. It is also an undisputed fact that the father of the plaintiff, defendants 2,3,5,6 and husband of defendant No.1/C.Linge Gowda died intestate.
19. Even though the plaintiff contends that the suit schedule item No.4 property was purchased in the name of 1 st defendant/Sarojamma, the same was purchased from and out of joint family nucleus. The defendants have denied the same and contend that it was the self-acquired property of the 1 st defendant. To establish the same, no material is produced by the plaintiff, nor there is any admission in that regard by the 19 O.S.No.9127/2011 defendants. Ex.P9- certified copy of registered sale deed, dated 13.09.2005, executed in favour of Sarojamma, in respect of suit schedule item No.4, there is no recital with regard to contribution by any of the children of 1 st defendant. It is also admitted that the 1st defendant, received the family pension benefits of deceased C.Linge Gowda, who was working for Government of Karnataka and died while serving. As per law, the 1st defendant, being the wife of the deceased, alone was entitled to for the family pension benefits. In that event, it cannot be said that for the purchase of item No.4 property, there was contribution by the children , or it was purchased from and out of joint family nucleus. Hence as per Sec.14 of Hindu Succession Act, the suit schedule item No.4 property shall be considered as the self-acquired property of 1 st defendant and except the 1 st defendant, no other person had got any right, title, or interest, over the same. 20
O.S.No.9127/2011
20. Undisputedly, the suit schedule property item Nos.1 and 2 are the ancestral properties of the fatehr of plaintiff and defendants No.2,3,5 & 6. The suit schedule item No.3 property was purchased by the father/C.Linge Gowda. He died intestate on 31.08.1985. In that event, the suit schedule item Nos.1 and 2 properties cannot be considered as the ancestral properties of the plaintiff/C.L.Sujatha, defendant No.5-C.L.Sunitha and defendant No.6-C.L.Savitha; as per the principles of the rulings reported in (2016) 2 SCC 36 (Prakash & Otrs. vs. Phulavati & Otrs.) and (2018) 15 SCC 662 (Mangammal @ Thulasi & anr. Vs. T.B.Raju & Otrs.).
21. It is the contention of the defendants that after the death of the father, on 31.08.1985, there was an oral partition, but they produced the alleged written partition deed-Ex.D2. The said document cannot be considered as proved since it is only marked and no independent evidence, including the 21 O.S.No.9127/2011 evidence of defendant No.1 is led; as per the principles of the ruling, reported AIR 1971 SC 1865 (Sait Tarajee khimchand & Ors, Vs. Yelamarti Sathyam & Otrs.) which states mere marking of a document as an exhibit, does not dispense with its proof.
22. Further, it is an undisputed fact that the father/C.Linge Gowda died on 31.08.1985, prior to the alleged execution of panchayath parikath, dated 18.1.1986/Ex.D2. The recitals of the said document do not show how the properties shown therein were acquired. It is only shown therein that the husband of the 1st defendant died on 31.08.1985. The defendants 2 and 3 were minors and the 1 st defendant/mother, stood guardian for them. Since there should not be any dispute in future with regard to her family properties, the properties are divided as schedule 'A and B' and schedule 'A' shown 22 O.S.No.9127/2011 therein was allotted to defendant No.2 and schedule 'B' shown therein was allotted to defendant No.3.
23. It is not shown therein that property shown therein were the ancestral properties, or self-acquired properties of father C.Linge Gowda. It is not shown therein that the defendants 2 and 3 had two sisters, namely- defendants No.5 and 6. As on the date of the alleged partition deed/Ex.D2, i.e., on 12.09.1986, the defendant No.4 was aged 18 years and defendant No.5 was aged 17 years, since their age is shown in the cause title, which has not been denied by the defendants. In the event of death of the father, the 1st defendant, plaintiff, defendants 5 and 6 were also entitled to a share in the 1/3rd share of their father, in respect of the ancestral properties, i.e., suit schedule item Nos. 1 and 2. Since the suit schedule item No.3 was the self- acquired property, on the death of the father, intestate; the 23 O.S.No.9127/2011 plaintiff, defendants 1,2,3 as well as 5 and 6 equally succeeded to the said property. Inspite of it, nothing is shown in the said alleged partition deed, marked Ex.D2, dated 12.01.1986.
24. D.W.1 in his cross-examination, in page-18 and 19 has specifically admitted that the contents/recitals of Ex.P16,19 and 21 are true. On going through Ex.P15 and P16, registered gift deeds, executed by defendant No.1, in favour of defendants 2 and 3 respectively, it is recited therein "ಆದದಗ ನನನ ಯಜಮದನರದದ ಶಶಶ ಸ.ಲಲಗಗಶಗಗಡ ರವರರ ದನದಲಕ 31.08.1985 ರಲದರ ಕದಲವದದರರ. ಇವರ ಕದಲದನಲತರ ಮಶಲಲಲಡ ಪಪರದರ ಸಸತರತ ಪತನ -ಸರಗರಶಜಮಮ ಆದ ನನನ ಸದಸಧಶನಕಗಲ ಬಲದದರದ ಸದರಶ ಸಸತತನ ಬದಬರತ ಖದರಗ ಇರದತದ ದದಖಲಗಗಳನರನ ಶಶಶ ಲಲಗಗಶಗಗಡರವರ ಪವತ ತತಖಗತ ಮಶರಗಗಗ ಪತನ ಶಶಶಮತ ಸರಗರಶಜಮಮ ಆದ ನನನ ಹಗಸರಗಗ ವಗದರಯಸಕಗರಲಡರ ಕಲದದಯವನರನ ಪದವತ ಮದಡರರದತ ಆಲದಗದಯರತವನಲದಲರ ಇದರವರಗವಗರ ಸದರಶ ಪಪರದರ ಸಸತರತ ನನನ ಸಸಲತ ಸದಸಧಶನದನರಭವ ಮದಲಶಕತಸ ಹದಗರ ಹಕರಲದದರಕಗಗಗ ಒಳಪಟಟದರದ 24 O.S.No.9127/2011
-------." Further D.W.1, in his cross-examination, in page-18 has admtited the same.
25. Further, Ex.P19, P20 and P21, certified copies of release deeds, all dated 01.12.2011, executed among defendant Nos.1,2,3,5 and 6 themselves; show "whereas, the schedule 'A' properties are the self-acquired and ancestral property of Sri.C.Linge Gowda, husband of 1 st Releasor herein/1st defendant herein and father of 2 to 4 th Releasors and Releaseee herein/ defendants 2,3,5 and 6 herein.----Whereas, after the demise of Sri.C.Linge Gowda, on 31.08.1985, his legal heirs the Releasors and Releasee succeeded to his estate as absolute co-owners."
26. If really, for the sake of argument, partition was held in the year 1986, there was no necessity to recite in the said release deeds, or gift deeds, that the defendants 1,2,3,5 and 6 succeeded to the estate of the father/C.Linge Gowda. 25
O.S.No.9127/2011 Further the said release deeds, or gift deeds, were executed subsequent to the alleged partition deed, dated 12.01.1986. If really the said partition deed was executed, there was no necessity to release the rights of the defendants 1,5 and 6 in favour of defendant No.2, or defendant No.3. The recitals of the said gift deeds, Ex.P15 and Ex.P16 and certified copies of release deeds, Ex.P19, Ex.P20 and Ex.P21; are contrary to the recitals shown in Ex.D2-partition deed. When in the said release deeds the defendants 1,2,3,5 and 6 contend that they succeeded to the estate of C.Linge Gowda, then since the plaintiff is also a daughter/successor of said C.Linge Gowda, she should also succeed to the estate of the said C.Linge Gowda. Hence the plaintiff has got undivided share in suit schedule item Nos.1,2 and 3 properties, as per the principles of the ruling reported in AIR 2004 Karnataka 430 (Subbayyajoga Naik Vs. Narayanai and Otrs.). 26
O.S.No.9127/2011
27. With regard to limitation, it is contended on behalf of the defendants that the plaintiff has neither alleged, nor deposed when she has come to the knowledge of the said execution of gift deeds, or release deeds. It is also contended by the defendants that even though the suit was filed on 31.01.2011, whereas Ex.P15 and P16, registered gift deeds, were executed on 25.01.2008. Hence the suit is barred by limitation, since the same was not filed within the period of 3 years from 25.01.2008, as per Art.58 of Limitation Act. It is true that the plaintiff has not alleged, nor deposed when and on which date she has come to the knowledge of the said execution of the gift deeds. But she has alleged and deposed that recently she came to know the same. In the cross- examination of P.W.1, nothing is elicited by the defendants to show when she came to know with regard to execution of gift deeds. Further, the certified copies of Ex.P15, P16, P17, P18, 27 O.S.No.9127/2011 P19, P20 and P21 were obtained in the month of November, 2011, or December, 2011.
28. On behalf of the defendants, it is contended that the plaintiff had the knowledge of the gift deed, as per law, as on the date of execution of the said gift deeds, because, Sec.3 of T.P.Act, states-
3. "a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful absentation from an enquiry, or search which he ought to have made, or gross negligence, he would have known it.
Explanation I,- Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property, or any part of, or share, or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or 28 O.S.No.9127/2011 where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908(16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share, or interest, is being acquired, is situated.
Provided that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908(16 of 1908), and the rules made thereunder, (2) the instrument, or memorandum has been duly entered, or filed, as the case may be, in books kept under section 51 of the Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act.
29
O.S.No.9127/2011 Explanation II.- any person acquiring any immovable property, or any share, or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation.III -
........................................................
29. On going through the said provision carefully, it relates to the persons acquiring interest over the property under a registered document. Here, in this case, the plaintiff has not acquired any interest under the registered documents, such as Ex.P15, Ex.P16, Ex.P17, Ex.P18, Ex.P19, Ex.P20 and Ex.P21, registered gift deeds, registered rectification deeds and registered release deeds. Hence in that event also, it cannot be said that the suit is barred by limitation. Hence viewed from any angle, the plaintiff has got share in suit schedule item Nos.1,2 and 3 properties only.
30
O.S.No.9127/2011
30. When the father was alive, in suit schedule item Nos.1 and 2 properties, which were the ancestral properties, the father had 1/3rd share, defendants 2 and 3, each, had 1/3rd share. Since the father died in 1985, the 1/3 rd share of the father, upon his death, was succeeded by the plaintiff, defendants No.1,2,3,5 and 6, as Class-I heirs. In that event, the share of the plaintiff in suit schedule item Nos.1 and 2 is 1/18th . The defendant No.1 has got 1/18th and defendant No.2 has got (1/3+1/18)=7/18th , defendant No.3 has got 7/18th share, defendant No.5 has got 1/18th and defendant No.6 has got 1/18th share in suit schedule item Nos.1 and 2 properties.
31. It is an undisputed fact that suit schedule item No.3 is the self-acquired property of the father/C.Linge Gowda, who died intestate. In that event, with regard to suit schedule item No.3 property, all the legal heirs of C.Linge Gowda, i.e., plaintiff, defendants 1,2,3,5 and 6 each, got equal 31 O.S.No.9127/2011 share. In that event, plaintiff, defendants 1,2,3,5,and 6 each, gets 1/6th share in suit schedule item No.3 property. Hence issue No.1 is answered accordingly.
32. Issue Nos. 2,3,4,5,and 6 - Since these five issues are interrelated, the same are considered together. In issue No.1, it is already held that the plaintiff has got an undivided share in suit schedule item Nos.1,2 and 3 properties. Inspite of it, the said gift deeds, rectification deeds and release deeds were executed by defendants 1,2,3,5 and 6. In that event, the said gift deeds, rectification deeds as well as release deeds; are not binding on the share of the plaintiff. Hence these five issues are answered accordingly.
33. Issue No.7 - In issue No.1,it is already held that the suit schedule property item No.4 was the self- acquired/absolute property of defendant No.1-Sarojamma. In that event, she could execute the gift deed, as she liked, since 32 O.S.No.9127/2011 no other person had got any right, or title, over the said property. Hence it cannot be said that the said registered gift deed, dated 12.062009, executed by 1 st defendant, in favour of defendant No.4, in respect of suit schedule item No.4 property, is void and not binding on the plaintiff. Hence this issue is answered accordingly.
34. Issue No.8 - Even though the defendants contend that there was oral partition after the death of father/ C.Linge Gowda, the same is not deposed by D.W.1. On the contrary, they have produced Ex.D2- unregistered 'paalu parikath'. Even there is no admission in that regard by the plaintiff. Hence the defendants have failed to establish with regard to oral partition took place in 1986. Hence this issue is answered negatively.
35. Issue No.9- With regard to the relief of partition, the plaintiff has valued the suit u/s. 35(2) of Karnataka Court 33 O.S.No.9127/2011 Fees & Suits Valuation Act, contending that she was in joint possession of the suit schedule properties. Even for the sake of argument, if the gift deeds and release deeds are considered, the 2nd defendant is in possession of suit schedule item Nos.1,2 and 3 properties. Defendant No.2 is also brother of the plaintiff. In that event, the possession of the one of the co-owners/brother is to be considered as constructive possession of the plaintiff. Hence with regard to the relief of partition, the valuation arrived at by the plaintiff is correct.
36. With regard to other documents, such as gift deeds, rectification deeds and release deeds; the plaintiff was not a party to the said document. Hence as per the principles of the Judgment passed in Civil Appeal Nos.2811-2813 of 2010(Suhrid Singh @ Sardool Singh Vs.Randhir Singh & Ors.) by Hon'ble Supreme Court, the valuation arrived at by the plaintiff, with regard to the said documents, u/s. 24 of 34 O.S.No.9127/2011 Karnataka Court Fees & Suits Valuation Act, is correct and the plaintiff has accordingly paid the required court fees. Considering the facts and circumstances of this case as well as the ruling passed in the above said Judgment, with due respect to the ruling reported in 2012 SCW 6519 (Shailendra Bhardwaj and Ors. Vs.chandra Pal and Anr.) is not applicable to the present set of facts, because the facts and circumstances of this case and law applicable to this case are different from the facts and circumstances and law applicable in the said ruling, are different. Hence this issue is answered negatively.
37. Issue Nos. 10 and 11 - Since these two issues are interrelated, same are considered together. Undisputedly, as per the discussions made above, the plaintiff is joint /co-owner of suit schedule item Nos.1, 2 and 3 properties. One co-owner cannot seek permanent injunction against other co-onwer praying to restrain other co-owners from interfering with the 35 O.S.No.9127/2011 possession of undivided property. Hence the plaintiff is entitled to for the relief of permanent injunction.
38. Considering the special facts and circumstances of the case, there is no order as to costs. In view of the answers to issue Nos. 1 to 9, the following-
ORDER The suit is partly decreed.
No order as to costs.
The suit schedule item Nos.1,2 and 3properties shall be partitioned and the plaintiff is entitled to 1/18th share in suit schedule item Nos. 1 and 2 only and separate possession of the same shall be delivered to her.
Further, the plaintiff is entitled to 1/6th share in suit schedule item No.3 property and separate possession of the same shall be delivered to her.
The defendants No.1, 5 and 6, each, is entitled to 1/18th share in suit schedule item Nos.1 and 2 properties and 1/6th share in suit schedule item 36 O.S.No.9127/2011 No.3 property and if required fee is paid, separate possession of the same shall be delivered to each of them.
Each of the defendants 2 and 3 is entitled to 7/18th share in the suit schedule item Nos.1 and 2 properties and 1/6th share in suit schedule item No.3 property and if required fee is paid, separate possession of the same shall be delivered to the defendants 2 and 3.
The plaintiff is entitled to for mesne profits, quantum of which is to be decided in the proposed FDP.
It is declared that the registered gift deed, executed by the 1st defendant in favour of 2 nd defendant on 23.01.2008, vide Book-I, Doc.No.JAY1- 03775-07-08 incorporated in CD No.JAYD-101, dated 25.01.2008, vide document No.9 is null and void and not binding on the plaintiff;
It is declared that the registered gift deed, executed by the 1st defendant in favour of 3rd defendant on 23.01.2008, vide Book-I, Doc.No.JAY1- 37 O.S.No.9127/2011 03776-2007-08 incorporated in CD No.JAYD-101, dated 25.01.2008, vide document No.10 is null and void and not binding on the plaintiff;
It is declared that the registered rectification deed, executed by the 1 st defendant in favour of 2nd defendant on 27.10.2010, vide Book-I, Doc.No.JAY1-013778-2010-11 incorporated in CD No.JAYD-121, dated 11.11.2010, vide document No.12 is null and void and not binding on the plaintiff;
It is declared that the registered rectification deed, executed by the 1st defendant in favour of 3 rd defendant on 27.10.2010, vide Book-I, Doc.No.JAY1- 01339-2010-11 incorporated in CD No.JAYD-121, dated 11.11.2010, vide document No.11 is null and void and not binding on the plaintiff;
It is declared that the registered release deed dated 01.12.2011, executed by the defendants No.1, 3, 5 & 6 in favour of 2 nd defendant, vide Book-I, Doc.No.JAY1-01726-2011-12 incorporated in CD No.JAYD-134, dated 01.12.2011, vide document 38 O.S.No.9127/2011 No.14 is null and void and not binding on the plaintiff;
It is declared that the registered release deed dated 01.12.2011, executed by the defendants No.1, 2, 5 & 6 in favour of 3 rd defendant, vide Book-I, Doc.No.JAY1-01727-2011-12 incorporated in CD No.JAYD-134, dated 01.12.2011, vide document No.13 is null and void and not binding on the plaintiff;
Draw preliminary decree accordingly. (Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this 9 th day of January, 2020.) (SHUBHAVEER B.) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff-
P.W.1 - Smt.C.L.Sujatha 39 O.S.No.9127/2011 II. List of witnesses examined on behalf of defendants-
D.W.1 - Sri.C.L.Shiva Prakash III. List of documents exhibited on behalf of plaintiff-
Ex.P1 Genealogical tree
Ex.P2 Death certificate
Ex.P3 RTC extract
Ex.P4 RTC extract
Ex.P5 Certified copy of sale deed
Ex.P6 Khatha certificate
Ex.P7 Khatha extract
Ex.P8 Tax paid receipt
Ex.P9 Certified copy of sale deed,
dated 13.09.2005
Ex.P10 Tax paid receipt
Ex.P11-P14 Encumbrance certificates
Ex.P15 Certified copy of gift deed, dated
23.1.2008
Ex.P16 Certified copy of gift deed
Ex.P17 Certified copy of rectification deed
Ex.P18 Certified copy of rectification deed
Ex.P19 Certified copy release deed, dated
01.12.2011
Ex.P20 Certified copy of Release deed, dated
1.12.2011
Ex.P21 Certified copy release deed, dated
01.12.2011
Ex.P22 Certified copy of gift deed, dated
12.6.2009.
40
O.S.No.9127/2011
IV. List of documents exhibited on behalf of defendants-
Ex.D1 Certified copy of sale deed
Ex.D2 Panchayath Parikath, dated
12.01.1986
Ex.D3 Marriage invitation card
Ex.D4 Electricity bill
Ex.D5 Electricity bill
Ex.D6 Bill pertaining to digging of
borewell
Ex.D7 Bill pertaining to digging of
borewell
Ex.D8 Invoice
Ex.D9 Invoice
Ex.D10 Bill
Ex.D11 Letter
Ex.D12&13 Bills
Ex.D14 Letter
Ex.D15 Estimation
Ex.D16 Estimation
Ex.D17 Letter dated 6.2.1988
Ex.D18 Letter issued by Mahajan
Borewell Co.,
Ex.D19 Bill issued by Venkateshwara
Electricals
Ex.D20 Letter issued by KEB dated
15.1.1986
Ex.D21-24 Notices
Ex.D25-D32 8 Receipts
Ex.D33&D34 Two notices
Ex.D35-D42 8 receipts
Ex.D43&D44 Two pass books
41
O.S.No.9127/2011
Ex.D45 Sanctioned plan
Ex.D46 &D67 22 receipts
Ex.D68 GPA, 26.6.1995
Ex.D69 Encumbrance certificate
Ex.D70 Acknowledgment
Ex.D71-D79 8 photographs
Ex.D80 Certified copy of sale deed,
11.11.2013.
(SHUBHAVEER.B)
XLIII Addl.City Civil & Sessions Judge, Bengaluru Digitally signed by SHUBHAVEER JAIN B DN: cn=SHUBHAVEER JAIN B,ou=GOVERNMENT OF SHUBHAVEER KARNATAKA,o=HIGH JAIN B COURT OF KARNATAKA,st=Karnataka,c =IN Date: 2020.01.14 14:23:57 IST 42 O.S.No.9127/2011 (Judgment pronounced in open court) ORDER The suit is partly decreed.
No order as to costs.
The suit schedule item Nos.1,2 and 3properties shall be partitioned and the plaintiff is entitled to 1/18th share in suit schedule item Nos. 1 and 2 only and separate possession of the same shall be delivered to her.
Further, the plaintiff is entitled to 1/6th share in suit schedule item No.3 property and separate possession of the same shall be delivered to her.
The defendants No.1, 5 and 6, each, is entitled to 1/18th share in suit schedule item Nos.1 and 2 properties and 1/6th share in suit schedule item No.3 property and if required fee is paid, separate possession of the same shall be delivered to each of them.
Each of the defendants 2 and 3 is entitled to th 7/18 share in the suit schedule item Nos.1 and 2 properties and 1/6th share in suit schedule item No.3 property and if required fee is paid, separate possession of the same shall be delivered to the defendants 2 and 3.
The plaintiff is entitled to for mesne profits, quantum of which is to be decided in the proposed FDP.
43
O.S.No.9127/2011 It is declared that the registered gift deed, executed by the 1st defendant in favour of 2nd defendant on 23.01.2008, vide Book-I, Doc.No.JAY1- 03775-07-08 incorporated in CD No.JAYD-101, dated 25.01.2008, vide document No.9 is null and void and not binding on the plaintiff.
It is declared that the registered gift deed, executed by the 1st defendant in favour of 3rd defendant on 23.01.2008, vide Book-I, Doc.No.JAY1-03776-2007-08 incorporated in CD No.JAYD-101, dated 25.01.2008, vide document No.10 is null and void and not binding on the plaintiff.
It is declared that the registered rectification deed, executed by the 1st defendant in favour of 2nd defendant on 27.10.2010, vide Book-I, Doc.No.JAY1-013778-2010-11 incorporated in CD No.JAYD-121, dated 11.11.2010, vide document No.12 is null and void and not binding on the plaintiff.
It is declared that the registered rectification deed, executed by the 1st defendant in favour of 3rd defendant on 27.10.2010, vide Book-I, Doc.No.JAY1-01339-2010-11 incorporated in CD No.JAYD-121, dated 11.11.2010, vide document No.11 is null and void and not binding on the plaintiff.
It is declared that the registered release deed dated 01.12.2011, executed by the defendants No.1, 3, 5 & 6 in favour of 2 nd defendant, vide Book-I, Doc.No.JAY1-01726-2011-12 incorporated in CD 44 O.S.No.9127/2011 No.JAYD-134, dated 01.12.2011, vide document No.14 is null and void and not binding on the plaintiff.
It is declared that the registered release deed dated 01.12.2011, executed by the defendants No.1, 2, 5 & 6 in favour of 3rd defendant, vide Book-I, Doc.No.JAY1-01727-2011-12 incorporated in CD No.JAYD-134, dated 01.12.2011, vide document No.13 is null and void and not binding on the plaintiff.
Draw preliminary decree accordingly. 45 O.S.No.9127/2011