Bangalore District Court
Smt. Vanitha vs Sri. L. Balaram on 14 January, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 14th day of January, 2022.
O.S.No.26058/2013
Plaintiffs:- 1. Smt. Vanitha,
D/o Dakshinamurthy,
Aged about 46 years,
R/at No.33, Dooravani Medical Store
Behind, Nagappareddy Layout,
Ramamurthy Nagar,
Bangalore.
2. Sri. R. Balakrishna,
S/o Rama Murthy L,
Aged about 30 years,
R/at No.9, S. No. 4th Street,
Bharathinagar,
Bangalore-01.
[By Sri. C. R Raghavendra Reddy -
Adv]
V/s
2
O.S.No.26058/2013
Defendants:- 1. Sri. L. Balaram,
S/o Late L Lokaiah Naidu,
Aged about 68 years,
R/at No.21, 2nd Cross, 515,
ABW Colony, HAL 3rd Stage,
New Thanisandra,
Bangalore- 75.
(Since Deceased by his
legal representative)
1(a). Sri. Suresh,
S/o Late Balaram. L
Aged about 40 years,
R/at No.21, 2nd Cross, 515,
ABW Colony, HAL 3rd Stage,
New Thanisandra,
Bangalore- 75.
1(b). Smt. Sujatha,
D/o Late Balaram. L
W/o Raghunath,
Aged about 35 years,
R/at No.1116, Sapthagiri,
35th Cross, SIT Main Road,
Tumkur- 572103.
2. Sri. L. Rama Murthy @ Ramu,
S/o Late Lokaiah Naid,
Aged about 66 years,
R/at No.9, S. No. 4th Street,
Bharatinagar,
3
O.S.No.26058/2013
Bangalore- 01.
3. Sri. L. Ethiraj @ Ethirajulu,
S/o Late Lokaiah Naidu,
Aged about 64 years,
R/at No.264, 5th A Main Road,
3rd Cross, HBR Layout,
1st Stage, 2nd Block,
Bangalore.
4. Sri. L. Govindraj,
S/o Late Lokaiah Naidu,
Aged about 60 years,
R/at No.9, S. No. 4th Street,
Seppings Road Cross,
Shivajinagar,
Bangalore- 01.
5. Smt. Bharathi,
W/o P. Krishnakumar,
Aged about 45 years,
R/at No.31, 6th Cross,
Munigalappa Garden,
R. S Palya, M. S Nagar Post,
Bangalore - 33.
6. Sri. Firdose Pasha,
Aged about 45 years,
Working at No.11, Russel Market,
Shivajinagar,
Bangalore.
4
O.S.No.26058/2013
[By Sri. Naveen Kumar - Adv for D-2]
(Defendant No.1(a) to (b) -Exparte)
[By Sri. Kumara .L - Adv for D3 & 4]
Date of Institution of the suit 08.07.2013
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Partition
for injunction, etc.)
Date of the commencement of
17.11.2017
recording of the Evidence.
Date on which the Judgment was
14.01.2022
pronounced.
Year/s Month/s Day/s
Total duration 08 06 06
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
.
JUDGMENT
Plaintiffs have filed the present suit against the Defendants for the relief of Partition and Separate Possession, seeking 1/10th share in Item Nos.1 to 4 of the Suit Schedule Properties.
5O.S.No.26058/2013
2. The brief facts of the Plaintiffs case are as under:
It is the case of the Plaintiffs that, the Defendant Nos.1 to 4 are the children of Late Lokaiah Naidu and Late Kanamma. The Plaintiff No.1 and the Defendant No.5 are the daughters of Late Hamsaveni i.e., the elder daughter of Lokaiah Naidu and Kanamma; and the Plaintiff No.2 is the son of Defendant No.2, inturn the grandson of Lokaiah Naidu and Kanamma. The Plaintiffs and the Defendant Nos.1 to 5 constitute a Joint Undivided Family under the Hindu Mitakshara School of Law.
During the lifetime of Late Lokaiah Naidu, he was a fish vendor, at shop No.11 situated at Russel Market, Shivajinagar Bengaluru-1, the said shop is described as Item No.1 of the Suit Schedule Property. It is the family business and said Lokaiah Naidu was tenant of the said shop, under Bengaluru Mahanagar Palika Benglauru. After the demise of Lokaiah Naidu, his children are jointly running the said business and from the income derived out of the said business, they were 6 O.S.No.26058/2013 managing the joint family. Lokaiah Naidu and his children were jointly running a fish stall in Item No.1 of the Suit Schedule Property. So the Plaintiffs and the Defendant Nos.1 to 5 are the co-owners of the income derived from the said business, which is the only source of income to the Joint family.
Further contends that, Item No.2 of the Suit Schedule Property was purchased in the joint names of Lokaiah Naidu and his wife Kanamma and the consideration amount for such purchase was paid out of the income derived from the fish stall business. After the death of Lokaiah Naidu, the said business is continued by his children and grand children and the entire Item No.2 of the Suit Schedule Property was transferred in the name of Kanamma W/o Late Lokaiah Naidu.
Further contends that, out of the said fish business in Item No.1 of the Suit Schedule Property, the children of Lokaiah Naidu purchased Item No.3 of the Suit Schedule Property. The license of Item No.1 of the Suit Schedule Property was transferred in the name of the 7 O.S.No.26058/2013 Defendant No.3 and Item No.3 of the Suit Schedule Property was got registered in the name of Defendant No.3, as the Defendant No.3 was managing Joint family and also utilizing joint family funds for the betterment of the family.
Further contends that, Item No.4 of the Suit Schedule Property are the movable properties purchased by the Late Lokaiah Naidu and Kanamma. After their death, the said property is in the custody of the Defendant No.3. They and the Defendant Nos.2 to 5 are jointly enjoying the same, as Joint family property.
Further contends that, daughter of Lokaiah Naidu and Kanamma by name Hamsaveni died leaving behind her, her two children i.e., the Plaintiff No.1 and the Defendant No.5, who were aged about 3 and 1 year, respectively. And they were in the care and custody of their grandparents after the death of their mother- Hamsaveni. They are also the members of the joint family of Lokaiah Naidu and Kanamma. No partitions have effected inrespect of the properties left by Lokaiah Naidu and Kanamma. After the death of Kanamma the 8 O.S.No.26058/2013 dispute arose inbetween the Plaintiffs and the Defendant Nos.1 to 5. The Defendant No.2- the father of the Plaintiff No.2 is also not taking care of Plaintiff No.2, so the Plaintiffs have decided and have claimed their share in Item Nos.1 to 4 of the Suit Schedule Property with the Defendants. But the Defendants have failed to partition the Suit Schedule Properties and allott their respective shares.
The Plaintiff No.1 got issued a legal notice dtd.29.05.2013, calling upon the Defendants to effect partition in the Suit Schedule Property and to allot the shares. The Defendant No.3 has given reply to the said notice dtd.29.05.2013, contending that, he has acquired Item No.2 of the Suit Schedule Property under the Gift Deed dtd.20.08.2012 and he is having exclusive right over the said property and same is not the joint family property.
On verification they have revealed that, Late Kanamma has executed the Gift Deed infavour of the Defendant No.3, though she was not having any exclusive right over the said property, to gift the same to 9 O.S.No.26058/2013 the Defendant No.3. The very act of the Defendant No.3 demonstrate mismanagement of the joint family funds and properties, which is not binding on the Plaintiffs. So also, said Kanamma had no independent source of Income. So the property standing in the name of Kanamma is the joint family property and a portion of the same is in occupation of the Plaintiff No.2 and the Defendant No.2, being coparceners.
Further contends that, the Defendant No.6 is a domestic helper/servant under them and the Defendant Nos.1 to 5. The Defendant No.3 taking advantage of the situation, is making hectic attempts to transfer the running business in Item No.1 of the Suit Schedule Property, infavour of the Defendant No.6.
Since the Defendants have failed to allot their shares, they are constrained to file the present suit for the relief of Partition and separate possession in the Suit Schedule Properties; and to get declared the Gift Deed dtd.30.08.2012, as not binding to their shares.
Hence, prayed to decree the suit.10
O.S.No.26058/2013
3. Suit summons were issued to the Defendants. Defendants.
Defendant No.3 and 4 have appeared through their counsel on 08.08.2013 and have filed their separate Written Statements.
The Defendant No.2 has appeared through his counsel on 20.08.2013. The Defendant No.2 had filed an application at IA No.3/2021 on 01.12.2021 praying to permit him to file his Written Statement. The said application came to be rejected on 01.12.2021.
The Defendant No.1 died during the pendency of this suit and his legal heirs were brought on record, as Defendant No.1(a) and (b), as per orders on IA No.1/2019, 2/2019 and 3/2019 dtd.03.04.2019. Suit summons of the amended Suit Plaint were issued to the Defendant No.1(a) and (b). Defendant No.1(b) is placed 'Exparte' on 28.05.2019 and Defendant No.1(a) is placed 'Exparte' on 09.07.2019.
4. The Defendant No.3 in his Written Statement has denied the contentions taken up by the Plaintiffs in 11 O.S.No.26058/2013 the Suit Plaint, he had admitted the relationship inbetween the Plaintiffs and the Defendants with Lokaiah Naidu and Kanamma. Further he has contended that, Suit Schedule Properties are the not Ioint family properties, as contended by the Plaintiffs.
It is further contended that, his father was running a fish stall in Item No.1 of the Suit Schedule Property. He was a license holder of the said premises. The said premises belonged to BBMP authorities. During the lifetime of his father, he started continuing the business of fish vending. Later on, his father has given his leasehold rights over the said shop, to him. Since then, he is enjoying the said shop by running fish vending business in it, on getting transferred the leasehold rights in his favour; and on paying necessary rents/taxes to the BBMP. Lease hold rights enjoyed by his father was his self acquired; and he has delivered the same to him. Further contends that, due to his old age he has entered into a partnership agreement with the wife of the Defendant No.6 to run fish vending business in Item No.1 of the Suit Schedule Property.
12O.S.No.26058/2013 Further contends that, his father has purchased Item No.2 of the Suit Schedule Property in his name and in the name of his mother, jointly. It is the self acquired property of his parents and not the joint family property, as contended by the Plaintiffs. Further contends that, his parents have executed two different Wills and his mother has executed Gift Deed in his favour, by virtue of which he has become the absolute owner of the said property. Further contends that, his brother Govindaraj- Defendant No.4 has executed Release Deed, relinquishing his rights, over the said property. Khata pertaining to the said property was got transferred in his name and he is enjoying the said property, as the absolute owner thereof. He is paying taxes to the concerned authorities. This property was neither the joint family property, nor the same was acquired out of the joint family funds, as contended by the Plaintiffs.
Further contends that, Item No.3 of the Suit Schedule Property is purchased by him, out of his self earning and earning of his wife and children.
13O.S.No.26058/2013 Further contends that, Item No.4 of the Suit Schedule Property is not in existence and no such things have been left either by his parents, or he is in possession of the same.
Further contends that, Defendant No.2 is residing in portion of Item No.2 of the Suit Schedule Property, as a tenant. He has failed to pay necessary rents to him. Due to the brotherhood relationship inbetween him and the Defendant No.2, no any lease deed or rental agreement have been got executed from the Defendant No.2. Defendant No.2 is in permissive possession of the portion of Item No.2 of the Suit Schedule Property. No partitions have been effected during the lifetime of his parents, inrespect of the Item Nos.1 and 2 of the Suit Schedule Properties, as the said properties are not the joint family properties, but they are the self acquired properties of his father - Lokaiah Naidu.
Further contends that, his mother Kanamma was residing with him, during her last days. He has taken care of her health, food, clothing and medical expenses. Out of her love and affection, she has executed a Gift 14 O.S.No.26058/2013 Deed in his favour on 30.08.2012, inrespect of Item No.2 of the Suit Schedule Property.
Further contends that, the Plaintiff No.1 had issued a notice to him and to his siblings, calling upon them to effect partition in the Suit Schedule Properties. He has replied the said notice accordingly.
The Plaintiffs have filed the present suit in collusion with the other Defendants, inorder to knock out the properties belonging to him. Further contends that, the Plaintiff No.1 is neither the family member of the joint family, nor she is entitle for any share in the Suit Schedule Properties. So also, the Plaintiff No.2 who is the son of the Defendant No.2 is not entitle of any share in the Suit Schedule Properties.
Hence, prayed to dismiss the suit of the Plaintiffs.
5. The Defendant No.4 has filed his Written Statement. He has taken same and similar contentions as taken up by the Defendant No.3. The same is not reiterated inorder to avoid duplication and repeatation.
15O.S.No.26058/2013
6. On the basis of the above said pleadings, my learned predecessor in office, has framed the following issues on 18.01.2017, as under:
ISSUES
1. Whether Plaintiffs prove that Plaintiff No.1 and Defendant Nos.1 to 5 are the children of Late. Lokesh Naidu (sic Lokaiah Naidu) and Late.Kannamma and they have constituted a undivided Hindu Joint Family?
2. Whether Plaintiffs prove that Suit Schedule Item No.1 to 4 Properties are their Hindu Joint Family properties and the same are not partitioned till today?
3. Whether Plaintiffs prove that the alleged Gift Deed dated 29.05.2013, which is called as kannamma has got executed the same about the Item No.2 Schedule property in favour of Defendant No.3 is also a joint family property of the Plaintiff and Defendants No.1 to 5; hence, she had no exclusive right to execute the Gift Deed and same is not binding upon the Plaintiffs?
4. Whether Plaintiffs prove that the allegation made in Para No.15 of the plaint against the Defendant No.3 is true and correct and the Defendant No.3 16 O.S.No.26058/2013 is making attempt to transfer the Item No.1 property to running business in favour of Defendant No.6?
5. Whether Plaintiff proves that they are entitled for 1/10th share in the Suit Schedule Property?
6. Whether Plaintiffs prove that they are entitled for a declaratory reliefs sought in the plaint prayer column 'c'?
7. What order? What decree?
7. Inorder to prove the case, the Plaintiffs have led the evidence of Plaintiff No.1 as PW1 and have got marked 11- documents as ExP1 and Ex.P11(l). PW1 is cross examined on behalf of the Defendant Nos.3 & 4 on 23.10.2018 and 14.01.2019.
Per contra, the Defendant No.3 got examined himself examined as DW.1 and got marked 150 documents, as ExD1 to ExD150. DW.1 was cross examined on behalf of the Plaintiffs on 27.02.2020, 20.03.2021, 07.04.2021 and 30.08.2021. DW.1 was cross examined on behalf of the Defendant No.2 on 17.11.2021.
17O.S.No.26058/2013
8. The suit was initially allotted to CCH-29 and the same was transferred to CCH-21 on 29.01.2015, as per the Notification No.PPS(CCC)68/14, dtd.01.12.2014. Thereafter this suit came to be transferred to this Court on 10.08.2018 by virtue of Notification No.ADM- I(A)413/2018 dtd.31.07.2018, of the Principal City Civil and Sessions Judge, Bangalore.
9. Heard the Arguments of the Learned Counsels for the Plaintiffs and the Defendant Nos.3 and 4, respectively. The Learned Counsel for the Defendant No.2 has filed his Written Arguments.
I have carefully gone through the Written Arguments filed on behalf of the Defendant No.2.
10. My findings on the above said issues are as under:
Issue No 1: Partly in the Affirmative;
Issue No 2: In the Negative;
Issue No 3: In the Negative;
Issue No 4: In the Negative;
Issue No 5: In the Negative;
Issue No 6: In the Negative;
Issue No 7: As per final order for
the following
18
O.S.No.26058/2013
REASONS
11. On the basis of the pleadings of the parties, the undisputed facts are as under:
i) relationship inbetween the Plaintiffs and the Defendant Nos.1 to 5, interse and with Lokaiah Naidu and Kanamma;
ii) Lokaiah Naidu and Kanamma, were having five children - four sons and one daughter, viz., the Defendant No.1; Hamsaveni- the mother of the Plaintiff No.1 and Defendant No.5; Defendant No.2; Defendant No.3; and Defendant No.4.
12. ISSUE NO.1:-
12.01. The Plaintiffs contend that, mother of the Plaintiff No.1 by name Hamasaveni and Defendant Nos.1 to 5 are the children of Lokaiah Naidu and Kanamma and they constituted a Undivided Hindu Joint Family.
12.02. Percontra, the Defendant No.3 contends that, Defendant No.1, Defendant No.2 and Defendant No.4 were residing separately during the lifetime of his parents; and the mother of the Plaintiff No.1 by name 19 O.S.No.26058/2013 Hamasveni was given in marriage. Since they were not residing jointly, they were not the members of the Undivided Hindu Joint Family.
12.03. Admittedly, the relationship inbetween the Plaintiff and the Defendant Nos.1 to 5, interse and with Lokaiah Naidu and Kanamma, are not in dispute.
Lokaiah Naidu and Kanamma were having four sons viz., Balaram- Defendant No.1, Ramamurthy- Defendant No.2; Ethiraj- Defendant No.3; and Govindaraj- Defendant No.4. So also, they were having a daughter by name Hamasaveni and she was given in marriage.
Separate messing by the members of the Hindu Undivided Family, will not severe the status of the family. Unless severance of status is shown byway of material and cogent evidence, status of the family is to be presumed, to be joint.
Thus, Lokaiah Naidu and Kanamma; and their children, form the joint family, but the Plaintiff No.1 being the daughter of Hamsaveni, will not become the 20 O.S.No.26058/2013 member of the said joint family, though she might have been brought up, by her grandparents.
Hence, I am constrained to answer ISSUE NO.1 PARTLY IN THE AFFIRMATIVE.
13. ISSUE NOS.2 TO 4:-
Since all these three issues are interrelated to eachother, there are taken for joint discussion, inorder to avoid repeatation and confusion, in the discussion.
A) Withrespect to Item No.1 of the Suit Schedule Property.
Item No.1 of the Suit Schedule Property is a Fish stall, bearing shop No.11, situated at Russel Market, Shivajinagar, Bengaluru.
13.01. The Plaintiffs contends that, Lokaiah Naidu was running a Fish stall in Item No.1 of the Suit Schedule Property, which was a family business and the income derived from the said business is the joint family property.
21O.S.No.26058/2013 13.02. The Defendant No.3 contends that, though his father Lokaiah Naidu was running a Fish stall in Item No.1 of the Suit Schedule Property, but the said business is not the joint family business, as contended by the Plaintiffs. Further contends that, his father Lokaiah Naidu was running a business of vending fish, prior to the birth of all the parties to this suit. So neither the business conducted by Lokaiah Naidu is the joint family business, nor income derived from the said business is the joint family property.
13.03. Coming to the ocular evidence, withregard to right of Lokaiah Naidu over Item No.1 of the Suit Schedule Property.
a) cross examination of PW.1, at Page No.12, Para No.3, Line Nos.1 to 3, which reads as under:-
"It is true to suggest that my maternal grandfather Lokaiah Naidu and my maternal grandmother Kannamma have purchased Item No.2 suit schedule property out of their own funds."22
O.S.No.26058/2013 As per this evidence, Plaintiff No.1/PW.1 contends that, fish business conducted in Item No.1 of the Suit Schedule Property is the self acquired business of her maternal grandfather Lokaiah Naidu.
b) cross examination of PW.1, at Page No.20, Para No.1, Line Nos.1 to 3, which reads as under:-
"It is true to suggest that Ex.P11(a) to Ex.P11(l) are the tax paid receipts paid by my grandfather for running a fish stall. ..."
As per this evidence, Plaintiff No.1/PW.1 admits that, Ex.P11(A) to Ex.P11(L) are the tax paid receipt paid by her grandfather, for running a Fish stall.
c) cross examination of PW.1, at Page No.11, Para No.3, which reads as under:-
"It is true to suggest that Item No.1 suit schedule property - shop No.11 situate at Russal market, Shivajinagar, Bangaluru belongs to BBMP. It is true to suggest that my maternal grandfather Lokaiah Naidu was the licencee conducting a fish business in Item No.1 suit schedule property, he was doing 23 O.S.No.26058/2013 the said business for about 40 - 50 years."
As per this evidence, Plaintiff No.1/PW.1 admits that, Item No.1 of the Suit Schedule Property belongs to BBMP and her maternal grandfather Lokaiah Naidu was the licensee, conducting a Fish business, in it. He was doing the said business for about 40 to 50 years.
13.04. Coming to the documentary evidence, on this point. The Plaintiff has produced the tax paid receipts at Ex.P11(A) to Ex.P11(L). On perusal of the said receipts, it is seen that, Lokaiah Naidu, who is named as Lakshmaiah Naidu in some of the receipts has paid taxes inrespect of Shop No.11, Fish stall.
13.05. As per the above oral and documentary evidence, it can be said that, Lokaiah Naidu was running a Fish stall in Item No.1 of the Suit Schedule Property, belonging to BBMP, as a licensee therein, by paying taxes to BBMP. Further it is admitted by the Plaintiffs through PW.1 that, it is the self acquired business of Lokaiah Naidu.
24O.S.No.26058/2013
14. The Defendant No.3 contends that, his father Lokaiah Naidu has executed a Will on 26.05.1983 and has transferred the lease hold rights over the Item No.1 of the Suit Schedule Property.
14.01. Coming to the documentary evidence, on this point. The Defendant No.3 has produced the Will said to have been executed by Lokaiah Naidu at Ex.P9. As per this document, more specifically, Clause No.2 of the said document, there is recital which says that, the lease hold rights in Item No.1 of the Suit Schedule Property is given and bequeathed to the Defendant No.3.
14.02. Coming to the ocular evidence, on the point of execution of the Will by Lokaiah Naidu,
a) cross examination of DW.1, at Page No.14, Para No.3, which reads as under:-
"It is true to suggest that in Item No.2 of the Suit Schedule Property my father was also having a share. My father has given his share in Item No.2 of the Suit Schedule Property to myself 25 O.S.No.26058/2013 and my brothers Ramamurthy and Govindaraj, as per the Will executed by him. My father has executed a Will only inrespect of his half share in Item No.2 of the Suit Schedule Property."
As per this evidence, a suggestion made to the Defendant No.3/DW.1 on behalf of the Plaintiffs that, his father was also having share in Item No.2 of the Suit Schedule Property and he has bequeathed the said share to him and to his brother Ramamurthy and Govindaraj, as per the Will executed by him (father). The said suggestion is affirmed by the Defendant No.3/DW.1 and further contends that, his father has executed a Will only inrespect of his half share in Item No.2 of the Suit Schedule Property.
As per this evidence, the Plaintiffs admit the existence and execution of the Will by the father of the Defendant No.3 i.e., Mr. Lokaiah Naidu.
b) cross examination of DW.1, at Page No.20, Para Nos.2 and 3, which reads as under:-
"My Mother has written a Will on 26.05.1983. Even my Father had also written a Will on 26.05.1983, itself. As 26 O.S.No.26058/2013 per the said Will Item No.2 of the Suit Schedule Property is given to we the three Brother's i.e., myself, Defendant Nos. 2 and Defendant No. 4 and Item No.1 of the Suit Schedule Property - The Shop is given to me. Both parents had desired so.
Que : Whether as per the desire of your parents have you given shares to your Brother's in Item No.2 of the Suit Schedule Property ?
Ans : Since I have looked after my Parents, I have taken the said Property, as per the Gift deed executed by my Mother.
My Father has not executed any document, except the Will. It is false to suggest that I have not acted as per the desire of my Father, as per his Will dated : 26.05.1983."
As per this evidence, the Plaintiffs and the Defendant No.3 admits writing of the Will by Lokaiah Naidu on 26.05.1983.
c) cross examination of DW.1, at Page No.24, Para Nos.1 to 3, which read as under:-
"It is true to suggest that, Ex.D9 and Ex.D10 Will Deeds were executed 27 O.S.No.26058/2013 on the same day, by my parents. It is true to suggest that, my mother has bequeathed her property through Will- Ex.D10 infavour of her three sons viz., Defendant No.2- Ramamurthy, Defendant No.3- Yathiraju and Defendant No.4- Govindaraju.
It is true to suggest that, my father had bequeathed his property through Ex.D9- Will, in favour of his three sons vzi., Defendant No.2- Ramamurthy, Defendant No.3- Yathiraju and Defendant No.4- Govindaraju.
It is false to suggest that, I have not obeyed the Wills- Ex.D9 and Ex.D10, executed by my parents, respectively. As per the terms of said Wills- Ex.D9 and Ex.D10, I have not given any portion of the Suit Schedule Property, to my brother Defendant Nos.2 and 4."
As per this evidence, the Plaintiffs and the Defendant No.3 admits existence and writing of the Will by Lokaiah Naidu as per Ex.D9.
d) cross examination of PW.1, at Page No.13, Para No.4, which reads as under:-
"On questioning the witness that her maternal grandfather Lokaiah Naid 28 O.S.No.26058/2013 has executed a Will dt. 26.05.1983 infavour of defendant No.3 in respect of item No.1 of suit schedule property, the witness replies that they have taken my grandmother and got executed the document. On questioning the witness that after the death of Lokaiah Naidu defendant No.3 is managing the affairs of fish business situate in item No.1 of suit schedule property. Witness replies defendant No.3 as well as defendant No.2 are managing the said business. It is false to suggest that I have not produced any document to show that defendant No.2 is also managing the fish business situate in item No.1 of suit schedule property. It is false to suggest that I am deposing falsely that defendant No.2 is managing the affairs of fish business in item No.1 of the suit schedule property."
As per this evidence, Plaintiff No.1/PW.1 contends that, Defendant No.3 has taken her grandmother and got the Will dtd.26.05.1983 executed.
14.03. As per the above ocular and documentary evidence, more specifically Ex.D9, the existence, condition 29 O.S.No.26058/2013 and execution of the Will-Ex.D9, by Lokaiah Naidu is not in dispute.
14.04. Coming to the ocular evidence, on the point of acting over of the terms of Will-Ex.D9, inrespect of Item No.1 of the Suit Schedule Property.
a) cross examination of DW.1, at Page No.12, Para No.2, which reads as under:-
"It is true to suggest that Item No.1 of the Suit Schedule Property - shop No.11, situate at Russel Market, Shivajinagar, Bengaluru, belong to the ownership of BBMP. It is true to suggest that my father was a license holder of the said shop and he was paying Rs. 250/- per month as license fee, of which initially he was paying Rs. 5/- per month. It is false to suggest that all the children of Lokaiah Naidu was assisting him to conduct the fish vending business. It is true to suggest that my mother was not participating in conducting the fish vending business, conducted by my father. It is true to suggest that my mother was not having any source of income."30
O.S.No.26058/2013 As per this evidence, a suggestion is made to Defendant No.3/DW.1 on behalf of the Plaintiffs that, Item No.1 of the Suit Schedule Property belongs to the ownership of BBMP and his father Lokaiah Naidu was a license holder of the said shop, he was paying Rs.250/- per month as licensee fee and initially he was paying Rs.5/- per month, which affirmed by him. Further denies that, all the children of Lokaiah Naidu was assisting him to conduct the Fish vending business. His mother was not participating in conducting Fish vending business, conducted by his father. She was not having any source of income.
b) cross examination of DW.1, at Page No.30, Para No.2, which reads as under:-
"It is true to suggest that, my father was holding license in respect of Item No.1- shop."
As per this evidence, a suggestion is made to the Defendant No.3/DW.1 on behalf of Defendant No.2 that, his father was holding licensee inrespect of Item No.1 of Suit Schedule Property, which is affirmed by him.
31O.S.No.26058/2013
c) cross examination of DW.1, at Page No.18, Para No.1, which reads as under:-
"It is false to suggest that since, the rights over Item No.1 of the Suit Schedule Properties belongs to our joint family, so I have taken consent and no objections from my mother and brothers Ram Murthy and Govindaraj. Witness volunteers that his parents have given the said rights to him under their Will."
As per this evidence, Defendant No.3/DW.1 has denied the suggestion made to him that, the rights over Item No.1 of the Suit Schedule Property belonged to the joint family, so he has taken consent and no objection from his mother and brothers - Rammurthy and Govindaraj. Further he contends that, his parents have given the said rights to him, under their Will.
d) cross examination of PW.1, at Page No.13, Para No.4, which reads as under:-
"On questioning the witness that her maternal grandfather Lokaiah Naid has executed a Will dt. 26.05.1983 infavour of defendant No.3 in respect of item No.1 of suit schedule property, the witness replies that they have taken my 32 O.S.No.26058/2013 grandmother and got executed the document. On questioning the witness that after the death of Lokaiah Naidu defendant No.3 is managing the affairs of fish business situate in item No.1 of suit schedule property. Witness replies defendant No.3 as well as defendant No.2 are managing the said business. It is false to suggest that I have not produced any document to show that defendant No.2 is also managing the fish business situate in item No.1 of suit schedule property. It is false to suggest that I am deposing falsely that defendant No.2 is managing the affairs of fish business in item No.1 of the suit schedule property."
As per this evidence, Plaintiff No.1/PW.1 contends that, after the death of her maternal grandfather Lokaiah Naidu Defendant Nos.2 and 3 are managing the affairs of business situated in Item No.1 of the Suit Schedule Property, but she has not produced any document to show that, Defendant No.2 is managing the said Fish business.
33O.S.No.26058/2013 14.05. Withregard to change/transfer of license to conduct business in Item No.1 of the Suit Schedule Property.
a) cross examination of PW.1, at Page No.15, Para No.2, which reads as under:-
"It is true to suggest that after the death of my maternal grandfather, defendant No.3 has got changed licence to carry fish business in item No.1 suit schedule property, in his name and till today he is running the said business. Neither myself nor the plaintiff No.2 nor the defendant No.1, 2 and 5 have challenged the act of the defendantNo.3 in getting changed the licence of the item No.1 suit schedule property to run fish business in his favour."
As per this evidence, Plaintiff No.1/PW.1 admits that, after the her maternal grandfather Lokaiah Naidu, the Defendant No.3 had got changed the licensee to carry fish business in Item No.1 of the Suit Schedule Property, in his name and till the date of deposing, he was carrying the said business. Further contends that, neither she, nor Plaintiff No.2, nor the Defendant Nos.1 to 5 have challenged the said acts of the Defendant 34 O.S.No.26058/2013 No.3 in getting change the license of Item No.1 of the Suit Schedule Property, to run the Fish business, in his favour.
b) cross examination of DW.1, at Page No.17, Para No.3 (Que and Ans), which reads as under:-
"Que: Whether BBMP authorities have executed any document in your favour to say that, you are the owner of the Item No.1 of the Suit Schedule Property?
Ans: I am holding a license inrespect of Item No.1 of the Suit Schedule Property."
As per this evidence, Defendant No.3/DW1 contends that, he is holding a license inrespect of Item No.1 of the Suit Schedule Property.
c) cross examination of DW.1, at Page No.12, Para No.3, which reads as under:-
"I am also doing fish vending business, since, 40 years. When I started fish vending business my father was alive at that time."35
O.S.No.26058/2013 As per this evidence, Defendant No.3/DW.1 contends that, he is doing fish vending business since 40 years and he has started the said business during the lifetime of his father.
d) cross examination of DW.1, at Page No.13, Para Nos.1 and 2, which read as under:-
"I have continued the fish vending business in the shop wherein, my father was conducting the fish vending business, in Item No.1 of the Suit Schedule Property. The license pertaining to Item No.1 of the Suit Schedule Property was transferred to my name in the year 1996. It is true to suggest that the said license was transferred from my father Lokaiah Naidu, to my name. I have got transferred the said license in my name, after the death of my father. My mother Kannamma, my brothers Ramamurthy and Govindraj have given no objections, at the time of getting transferred the license of Item No.1 of the Suit Schedule Property in my name, since, my father had executed a Will in my favour on 25.06.1983. I have intimated the BBMP authorities that, as per the Will executed by my father, Item No.1 of the Suit 36 O.S.No.26058/2013 Schedule Property is to be transferred in my name. It is false to suggest that since, fish vending business is our family business so I have obtained No objections from by brothers Ramamurthy and Govindaraj and from my mother Kannamma.
At the time of getting transferred the license pertaining to the item No.1 of the Suit Schedule Property, by brother Balaram was alive, he has not given any no objections for transfer of license. Witness volunteers that he was not having any nexus as he was residing separately."
As per this evidence, Defendant No.3/DW.1 contends that, he has continued fish vending business in Item No.1 of the Suit Schedule Property, wherein his father conducted the said business. License pertaining to Item No.1 was got transferred in his name in the year 1996 from the name of his father to his name. The same was got transferred after the death of his father. His mother Kanamma and his brother Rammurthy and Govindaraj have given no objection at the time of getting transferred the license of the Item No.1 of the Suit Schedule Property in his name, as his father Lokaiah 37 O.S.No.26058/2013 Naidu had executed a Will in his favour on 25.06.1983. The fact of execution of the Will by his father was intimated to the BBMP authorities and accordingly the license was got transferred in his name. Further contends that, his brother Balaram- Defendant No.1 was not alive and he has not given any no objection for transfer of the said license.
14.06. Coming to the documentary evidence. 14.06.01.The Plaintiffs have produced the tax receipts pertaining to Item No.1 of the Suit Schedule Property, at Ex.P11(a) to Ex.P11(l).
14.06.02.The Defendant No.3 has produced the receipts at Ex.D18 to Ex.D74. As per this documents, it is seen that, the tax/ rent fee is paid by Defendant No.3 to BBMP authorities inrespect of Item No.1 of the Suit Schedule Property.
The Defendant No.3 has produced a notice issued by the BBMP authorities at Ex.D16. As per this document, it is seen that, a notice is issued by the 38 O.S.No.26058/2013 BBMP authorities to the Defendant No.3 on 14.02.2007, inrespect of Item No.1 of the Suit Schedule Property.
The Defendant No.3 has produced a Certificate at Ex.D17. As per this document, it is seen that, the Commissioner BBMP has certified that, the Defendant No.3 has participated in exhibition held on 24.12.2002 and 25.12.2002, which was satisfactory.
14.07. Thus, on the basis of above ocular and documentary evidence, it can be concluded that, Lokaiah Naidu was conducting a fish vending business in Item No.1 of the Suit Schedule Property, which was his self acquired business, on holding a license from the BBMP authorities. He has bequeathed the said lease hold rights over the Item No.1 of the Suit Schedule Property infavour of his son- Ethiraj- Defendant No.3, under his Will dtd.26.05.1983. After his death, the leasehold rights/ the license inrespect of Item No.1 of the Suit Schedule Property was got transferred in the name of the Defendant No.3, for which the mother of the Defendant No.3 by name Kanamma and the brothers of 39 O.S.No.26058/2013 the Defendant No.3 by name Ramamuthry - Defendant No.2 and Govindaraj- Defendant No.4 have expressed their no objection. Accordingly the license was got transferred in the name of Defendant No.3, in the year 1996. Since then the Defendant No.3 is running a fish vending business in Item No.1 of the Suit Schedule Property. The act of transferring of license by the Defendant No.3 in his name was neither challenged, nor questioned by the Plaintiffs and the Defendant Nos.1, 2, 4 and 5.
Thus, it can be concluded that, Lokaiah Naidu was having absolute lease hold rights in his favour, which he has bequeathed to his son- Defendant No.3. And the Defendant No.3 is exercising the rights of a licensee over Item No.1 of the Suit Schedule Property, as he has acquired the same under the Will dtd.26.05.1983-Ex.D9, executed by his father, which has remained undisputed either from the side of the Plaintiffs, or from the side of the Defendant Nos.1, 2, 4 and 5.
40O.S.No.26058/2013 Further, the lease hold rights enjoyed by deceased Lokaiah Naidu was his self acquired rights and was not the joint family rights. On its bequeath, the Defendant No.3 is entitle to enjoy the said rights, in his self acquired capacity.
So neither the Plaintiffs, nor the Defendant Nos 1, 2, 4 & 5 will get any rights over the Leasehold rights/License inrespect of Item No 1 of the Suit Schedule Properties.
15. B) Inrespect of Item No.2 of the Suit Schedule Property.
Item No.2 of the Suit Schedule Property is the house property bearing Municipal No.9/4, consisting of Old property Nos.9 and 10, situated at Seppings Road, 4th Street, Bangalore.
15.01. The Plaintiffs and the Defendant No.2 contend that Item No 2 of the Suit Schedule Properties has been acquired by Lokaiaiah Naidu, out of the Joint Family funds, derived from the Joint family Fish Vending Business, run by him; and the said acquisition 41 O.S.No.26058/2013 is made by him, in his name and in the name of his wife.
15.02. The Defendant No.3 contends that, Item No.2 of the Suit Schedule Property is the self acquired property of his father -Lokaiah Naidu, who had acquired the said property in his name and in the name of his wife Kanamma. Both his parents have executed separate Wills on 26.05.1983, as well as his mother has executed a Gift Deed in his favour on 30.08.2012, by virtue of which he has become the absolute owner in possession of the said property.
Further contends that, Defendant No.4 has executed Release Deed on 07.09.2012, in his favour, relinquishing his rights over the said property.
Further contends that, Defendant No.2 is residing in the portion of the said property, as his tenant, but he is not paying any to rent to him. Defendant No.2 is in permissive possession of the said property. He has filed a suit at SC No.1248/2013, for the eviction of the 42 O.S.No.26058/2013 Defendant No.2 from the portion of the Suit Schedule Property.
So he contends that, it was the self acquired property of his parents, who inturn have bequeathed the said property to him. So the said property is not the Joint family property; and neither the Plaintiffs, nor the Defendant Nos.1, 2, 4 and 5 are having any right, title or interest in the said property.
15.03. Withregard to acquisition of Item No.2 of the Suit Schedule Property.
15.03.01.Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW.1, at Page No.12, Para No.3, Line Nos.1 to 4, which reads as under:-
"It is true to suggest that my maternal grandfather Lokaiah Naidu and my maternal grandmother Kanamma have purchased Item No.2 of the Suit Schedule Property out of their own funds."
As per this evidence, Plaintiff No.1/PW.1 admits that, her maternal grandparents Lokaiah Naidu and 43 O.S.No.26058/2013 Kanamma have purchased Item No.2 of the Suit Schedule Property, out of their own funds.
b) cross examination of PW.1, at Page No.17, Para No.2, which reads as under:-
"It is true to suggest that suit schedule item No.2 property is the self acquired property of my grandfather Lokaiah Naidu and my grandmother Kannamma as per Ex.P1 Sale deed dt.21.01.1991."
As per this evidence, Plaintiff No.1/PW.1 admits that, Item No.2 of the Suit Schedule Property is a self acquired property of her grandparents, as per the Sale Deed dtd.21.01.1991-Ex.P1.
c) cross examination of PW.1, at Page No.18, Para No.2, which reads as under:-
"As per Ex.P3 to Ex.P6 pertaining to item No.2 of the suit schedule property shows that said property is the self acquired property of my grandfather-Lokaiah Naidu and my grandmother Kannamma."44
O.S.No.26058/2013 As per this evidence, Plaintiff No.1/PW.1 contends that, as per Ex.P3 to Ex.P6 pertaining to Item No.2 of the Suit Schedule Property, indicates that, it is the self acquired property of her grandparents.
d) cross examination of DW.1, at Page No.11, Para No.3, which reads as under:-
"Item No.2 of the suit schedule property was purchased in the joint name of my parents on 21.01.1981."
As per this evidence, Defendant No.3/DW.1 contends that, Item No.2 of the Suit Schedule Property was purchased in the joint names of his parents on 21.01.1981.
e) cross examination of DW.1, at Page No.12, Para No.4, which reads as under:-
"It is true to suggest that my father has paid the entire sale consideration amount to purchase the item No.2 of the Suit Schedule Property, under Sale Deed dt. 21.01.1981."
As per this evidence, Defendant No.3/DW.1 affirms the suggestion made to him on behalf of the 45 O.S.No.26058/2013 Plaintiffs that, his father has paid the entire sale consideration to purchase Item No.2 of the Suit Schedule Property, under the Sale Deed dtd.21.01.1981.
f) cross examination of DW.1, at Page No.30, Para No.2, which reads as under:-
"It is true to suggest that, Item No.2 of the Suit Schedule Property was acquired by my father in his name as well in the name of my mother -
Kannamma."
As per this evidence, Defendant No.3/DW.1 affirms the suggestion made to him on behalf of Defendant No.2 that, Item No.2 of the Suit Schedule Property was acquired by his father in his name and in the name of his mother Kanamma.
15.03.02.Coming to the documentary evidence, on the point of acquisition of the said property.
The Plaintiffs have produced certified copy of Sale Deed dtd.21.01.1981 at Ex.P1. As per this document, it is seen that, C Krishna Swamy and C Venugopal have sold the Item No.2 of the Suit Schedule Property to 46 O.S.No.26058/2013 Lokaiah Naidu and Kanamma for the valuable consideration of Rs.22,000/-. Further this document evidences that, the purchasers have been put into actual possession on the purchased property on the day of its purchase.
The Plaintiffs has produced Encumbrance certificate at Ex.P3. This document evidences the transaction of sale taken place inbetween C Krishnaswamy and C Venugoapl on one hand and S Lokaiah Naidu and Kanamma on the other hand, taken place on 21.01.1981, for the valueble consideration of Rs.22,000/-, which is registered at Doc No.3927 with the Office of Senior Sub-Register Indiranagar, Benglauru.
As per these documents, it is seen that, Item No.2 of the Suit Schedule Property is purchased by Lokaiah Naidu and Kanamma, under the Registered Sale Deed dtd.21.01.1981-Ex.P1.
15.03.03.Though the Plaintiffs and Defendant No.2 contend that, Item No.2 of the Suit Schedule 47 O.S.No.26058/2013 Property was acquired out of the joint family funds, but they have failed to show firstly, existence of the joint family nucleus; secondly, existence of the joint family funds in the said nucleus; and thirdly, acquisition of the said property from the alleged joint family funds.
As observed supra, the Plaintiffs and the Defendant No.2 have failed to show that, the Fish vending business run by Lokaiah Naidu, is the joint family business and the funds raised under the said business is the joint family funds.
As per the ocular evidence, referred to supra, the Plaintiffs through PW.1 on one hand; the Defendant No.2 on the other hand; and the Defendant No.3, still on the other hand, have admitted the mode of acquisition of Item No.2 of the Suit Schedule Property by Lokaiah Naidu and Kanamma, under the Registered Sale Deed dtd.21.01.1981.
Thus, it can be concluded that, Item No.2 of the Suit Schedule Property is the self acquired property of Lokaiah Naidu and Kanamma and not the joint family 48 O.S.No.26058/2013 property, acquired through the joint family funds, as contended by the Plaintiffs and the Defendant No.2.
15.04. The Defendant No.3 contends that, his parents have executed separate Wills on 26.05.1983.
15.04.01.As observed supra, withregard to ocular evidence/ material on record, wherein it is concluded that, neither the Plaintiffs, nor the Defendant No.2, nor the Defendant No.3 and 4 have denied the existence, execution and condition of the fact of execution of the Wills, by Lokaiah Naidu, as per Ex.D9; and by Kanamma, as per Ex.D10.
15.04.02.The Defendant No.3 has admitted in ocular evidence, referred to supra, that his father has bequeathed half portion of Item No.2 of the Suit Schedule Property, in his favour, as well as infavour of his two brothers viz., Ramurthy - Defendant No.2 and Govindaraj- Defendant No.4.
49O.S.No.26058/2013 15.05. The Defendant No.3 contends that, his mother has executed Gift Deed, in his favour on 30.08.2012, bequeathing her half share in Item No.2 of the Suit Schedule Property.
15.05.01.Coming to the ocular evidence, on this point, more specifically, cross examination of PW.1, at Page No.19, Para No.2(Que & Ans) & Para No.3, which read as under:-
"Que: As per Ex.P10 Kanamma has executed Gift Deed infavour of Defendant No.3 inrespect of Item No.2 of the Suit Schedule Property?
And: Kanamma has not executed it, she was taken and got executed the said document by Defendant No.3."
As per this evidence, Plaintiff No.1/PW.1 contends that, her maternal grandmother Kanamma has not executed Gift Deed as per Ex.P10 infavour of the Defendant No.3, but she was taken and got executed the said document by the Defendant No.3. Further she contends that, she has challenged the said Gift Deed and has produced the documents in this case to show such challenge. Further contends that, she cannot state in which Court she had challenge the said Gift Deed and 50 O.S.No.26058/2013 she cannot give the case of the said litigation. But admits that, her grandmother Kanamma was looked after by the Defendant No.3 in her old age and after execution of Ex.P10- Gift Deed, electricity requisition bill is coming in the name of the Defendant No.3.
As per this evidence Plaintiffs through PW1 admits execution and existence of the Gift Deed -Ex.P10; and that the said document has been acted over, as electricity requisition bill is coming in the name of the Defendant No.3 subsequent to execution of the said document.
b) cross examination of DW.1, at Page No.14, Para No.4, which reads as under:-
"My mother has given her share measuring 20 feet x 30 feet, in Item NO.2 of the Suit Schedule Property to me by way of Registered Deed. The share of my mother East to West : 30 feet and North to South : 20 feet. I have produced the said document in this case."
As per this evidence, Defendant No.3/DW.1 contends that, his mother has given her half share in 51 O.S.No.26058/2013 Item No.2 of the Suit Schedule Property, to him byway of registered deed and he has produced the same in this case.
15.05.02.Coming to the documentary evidence, on this point.
a) The Defendant No.3 has produced the certified copy of the Gift Deed dtd.30.08.2012 at Ex.P10.
As per this document, it is seen that, Smt. Kanamma has bequeathed Item No.2 of the Suit Schedule Property infavour of the Defendant No.3. there is a recital at page No.2 of the said document that, the doner and the donee are in actual possession of the said property as the absolute owner and enjoyment of the same. So also, there is recital at page No.4, Clause 3 of the said document, wherein it is stated that, the original documents relating to the scheduled property, under the said document are handed over to the donee on the date of execution of the Gift Deed. Further this document also indicates that, the donee has accepted the gift, made by the doner.
52O.S.No.26058/2013
b) The Defendant No.3 has produced Khata Certificate at Ex.D1; Khata Extract at Ex.D2; Electricity bills at Ex.D3 to Ex.D6; Tax paid receipts at ExD7, Ex.D8 and Ex.D11; BWSSB water bills at Ex.D147 and 150; and Electricity bills at Ex.D148 and Ex.D149. As per these documents, it is seen that, the name of Defendant No.3 is shown to be owner of Item No.2 of the Suit Schedule Property in the records maintained by the BBMP authorities; electricity meter pertaining to the said property has been got transferred in the name of the Defendant No.3; and the Defendant No.3 is paying necessary taxes of the said property to the BBMP authorities, as well as he is paying electricity charges inrespect of the said premises.
15.05.03.Coming to the ocular evidence, withregard to acting over of the Gift Deed dtd.30.08.2012-Ex.P10 executed by Kanamma, more specifically, cross examination of DW.1, at Page No.20, Para No.1, which reads as under:-
"On the basis of the Gift Deed executed by my mother my name came 53 O.S.No.26058/2013 to be entered in the records of Item No.2 of the Suit Schedule Property."
As per this evidence, Defendant No.3/DW.1 contends that, on the basis of Gift Deed executed by his mother, his name came to entered in the records of Item No.2 of the Suit Schedule Property.
15.05.04.The Defendant No.3 contends that, he has taken care of his mother during her last days; he has taken care of medical expenses of his mother.
The Defendant No.3 has produced medical receipts at Ex.D75 to Ex.D139. As per these documents, it is seen that, the said medical receipts pertain to Kanamma.
Further on perusal of the ocular evidence of PW.1, referred to supra, wherein Plaintiff No.1 has admitted that, her grandmother Kanamma was residing with the Defendant No.3.
15.05.05.The Plaintiffs and the Defendant No.2 would contend that, Kanamma was not the absolute owner and not having the absolute right to bequeath 54 O.S.No.26058/2013 Item No.2 of the Suit Schedule Property, under the Gift Deed dtd.30.08.2012-Ex.P10.
On perusal of the ocular evidence, referred to supra, wherein the Defendant No.3 has admitted that, his father Lokaiah Naidu was having half share in Item No.2 of the Suit Schedule Property; and his mother Kanamma is having half share in the said property.
15.05.06.Thus, on the basis of the above ocular and documentary evidence, coupled with admission withregard to existence and execution of Gift Deed dtd.30.08.2012-Ex.P10, it can be concluded that, Kanamma has bequeathed her half share in Item No.2 of the Suit Schedule Property to the Defendant No.3, through the Gift Deed dtd.30.08.2012-Ex.P10, though the said Gift Deed deals with the entire Item No.2 of the Suit Schedule Property, but it is to be restricted to the extent of half share of Kanamma, as she was having the ownership of half share in the said property.
15.06. The Defendant No.3 contends that, the Defendant No.4 has relinquished his rights over Item 55 O.S.No.26058/2013 No.2 of the Suit Schedule Property by executing a release deed dtd.07.09.2012.
15.06.01.The Defendant No.4 has filed his Written Statement in this suit and has admitted the facts of he and his family members executing a release deed infavour of the Defendant No.3 relinquishing his rights over the Item No.2 of the Suit Schedule Property.
15.06.02.Coming to the ocular evidence, on this point, cross examination of DW.1 at Page No.22, Para No.3, which reads as under:-
"My Brother Govindaraju -
Defendant No.4 has executed Release deed in my favour in respect of Item No.2 of the Suit Schedule Property.
Witness volunteers that since he has borne the marriage expenses of the daughter of Govindaraju, so he has executed Release deed in his favour." As per this evidence, Defendant No.3/DW.1 contends that his brother Govindaraj- Defendant No.4 has executed release deed in his favour inrespect of 56 O.S.No.26058/2013 Item No.2 of the Suit Schedule Property, since he had borne the marriage expenses of his daughter.
15.06.03.Coming to the documentary evidence on this point.
The Defendant No.3 has produced the original release deed dtd.07.09.2012 at Ex.D15.
As per this document, it is seen that, the Defendant No.4 has relinquished his rights over Item No.2 of the Suit Schedule Property infavour of the Defendant No.3. So also, it is seen that, the wife and children of Defendant No.4 have expressed their consent by joining to the execution of the said document, as consenting parties.
The Defendant No.3 has produced Encumbrance certificate at Ex.D14. This document evidences about the transaction of relinquishment taken place inbetween the Defendant No.4 and the Defendant No.2 on 07.09.2012 and the same is registered at Doc No.INR 1- 02806-2012-2013 with the office of Senior Sub-Register Indiranagar, Bengaluru.
57O.S.No.26058/2013 15.06.04.Thus, as per the ocular evidence, documentary evidence- Ex.D14 and Ex.D15; as well as, as per the admissions given by the Defendant No.4 in his Written Statement, it can be concluded that, the Defendant No.4 has relinquished all his rights in Item No.2 of the Suit Schedule Property, infaovur of the Defendant No.3, by virtue of Release Deed dtd.07.09.2012.
15.07. The Defendant No.3 contends that, the Defendant No.2 is in permissive possession of the portion of Item No.2 of the Suit Schedule Property, as his tenant, but he is not paying any rents to him. Due to the relationship the said transaction has not been transcribed either in the form of lease deed or rent agreement.
15.07.01.Percontra, the Plaintiff No.2 and the Defendant No.2 contends that, they are residing in the portion of Item No.2 of the Suit Schedule Property not as the tenant of the Defendant No.3, but in the capacity of the joint owners of the said property.
58O.S.No.26058/2013 15.07.02.Further the Defendant No.3 contends that, he has filed a suit for eviction against the Defendant No.2 at SC No.1248/2013 and the same is pending for its adjudication.
15.07.03.The Defendant has produced suit plaint in S Cno.1248/2013 at Ex.D140. As per this document, it is seen that, the Defendant No.3 has filed a Small Cause Suit against the Defendant No.2 contending that, he is his tenant and he is required to be evicted from the portion of Item No.2 of the Suit Schedule Property.
15.07.04.Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW.1 at Page No.16, Para No.2, which reads as under:-
"It is false to suggest that defendant No.2 Ramamurthy is residing in item No.2 suit schedule property as a tenant. Witness replies he is residing as owner thereof. It is false to suggest that I have not produced any document to show that defendant No.2 is the owner of item No.2 suit schedule property. It is 59 O.S.No.26058/2013 false to suggest that defendant No.2 is not the owner of the item No.2 suit schedule property, but he is a tenant, so I have not produced any documents to that effect. I do not know whether defendant No.3 has filed a proceedings for eviction of defendant No.2 from item No.2 suit schedule property by filing Small Cause Case bearing S.C.No. 1248/2013 pending on the file of Small Cause Court Hall No.11."
As per this evidence, Plaintiff No.1/PW.1 denies the suggestion made to her that, the Defendant No.2 is residing in Item No.2 of the Suit Schedule Property , as tenant.
b) cross examination of DW.1, at Page No.26, Para No.2, which reads as under:-
"SC.No. 1248/2013, is pending on the file of the SCC-11, the same is still pending. I have filed the suit against Defendant No.2, since he had not paid the rents and since he had failed to vacate the premises."
As per this evidence, Defendant No.3/DW.1 contends that, he has filed a suit at SC No.1248/2013 60 O.S.No.26058/2013 against the Defendant No.2, which is pending on the file of SCC-11, contending that, the Defendant No.2 has not paid the rents and he is required to be evicted from the said premises.
c) cross examination of DW.1 at Page No.30, Para No.5, which reads as under:-
"Defendant No.2 is residing in Item No.2 of the Suit Schedule Property, as my tenant. I do not have any document to show that, Defendant No.2 is residing in Item No.2 of the Suit Schedule Property, as the tenant. Witness volunteers that, Defendant No.2 is residing in the said property as tenant, on oral undertaking and since Defendant No.2 is his blood relative, so no Rental Agreement was entered into inbetween them. It is false to suggest that, since from the birth of Defendant No.2, he is residing in Item No.2 of the Suit Schedule Property."
As per this evidence, Defendant No.3/DW.1 contends that, Defendant No.2 is residing in Item No.2 of the Suit Schedule Property as his tenant, but he does not have any document to show Defendant No.2 residing in the said property, as tenant.
61O.S.No.26058/2013 15.07.05.The Learned Counsel for the Defendant No.2 would contend that, the Defendant No.2 has also filed a suit for the relief of Partition at OS No.26390/2013, which is pending for its adjudication, before this Court.
The Defendant No.3 has produced the certified copes of Suit Plaint in OS No.26390/2013 at Ex.D141; Written Statement filed by him, as Defendant No.2 in the said suit, at Ex.D142; the Written Statement filed by the present Defendant No.4, as Defendant No.3 in the said suit, at Ex.D143; Vakalathnamma filed on his behalf and on behalf of Defendant No.4 at Ex.D144 andEx.D145; and Issues at Ex.D146.
As per this documents, it is seen that, the Defendant No.2 has also filed asuit for partition inrespect of present Suit Schedule Property against the present parties and the same pending for its adjudication.
15.07.06.Thus, as per the above and ocular and documentary evidence, it can be concluded that, 62 O.S.No.26058/2013 Firstly, the Defendant No.3 admits that, Defendant No.2 is his brother and son of Lokaiah Naidu;
Secondly, the Defendant No.3 admits that, his father Loakaiah Naidu has executed a Will on 26.05.1983-Ex.D9, wherein he has bequeathed his half share in Item No.2 of the Suit Schedule Property, infavour of his three sons i.e., Ramamurthy- Defendant No.2; Ethiraj- Defendant No.3; and Govindaraj- Defendant No.4. So, the Defendant No.2 is also having the share in Item No.2 of the Suit Schedule Property, as per the Will-Ex.P9 executed by Lokaiah Naidu;
Thirdly, the Defendant No.2 has neither bequeathed, nor relinquished his rights over Item No.2 of the Suit Schedule Property, infavour of the Defendant No.3, as the one relinquished by the Defendant No.4 as per Ex.D15.
Thus, the Defendant No.2 will be entitle to 1/3rd share out of the half share of his father Lokaiah Naidu, in Item No.2 of the Suit Schedule Property as per the terms of Will -Ex.P9, executed by Lokaiah Naidu.
63O.S.No.26058/2013 The Defendant No.3 will be entitle to have the first half share of his mother Kanamma in Item No.2 of the Suit Schedule Property, as per the terms of the Gift Deed dtd.30.08.2012. Secondly, he will be entitled to receive 1/3rd share out of the half share of his father Lokaiah Naidu, in Item No.2 of the Suit Schedule Property, as per the terms of the Will dtd.26.05.1983-Ex.D9. And thirdly, he will entitle to receive 1/3rd share out of the half share of the his father Lokaiah Naid in Item No.2 of the Suit Schedule Property, bequeathed to his brother Govindaraju, as per the person of the Will dtd.26.05.1983-Ex.D9, who inturn as relinquished his rights in the said property in his favour as per the Release Deed -Ex.D15. Thus, the Defendant No.3 will be entitle to have 1/2 share + 1/6th share + 1/6th share, totally he will be entitled to have 5/6 th share in the Item No.2 of the Suit Schedule Property.
The Plaintiffs and the Defendant No.1 and 4 will not have any interest in Item No.2 of the Suit Schedule Property. So the Plaintiffs are not entitle for the relief of 64 O.S.No.26058/2013 declaration withregard to the Gift Deed executed by Kanamma, as prayed for by them.
16. C) Inrespect of Item No.3 of the Suit Schedule Property.
Item No.3 of the Suit Schedule Property is Site bearing No.264, situate at HBR, 1st Stage, 2nd Block extension, Bengaluru.
16.01. The Plaintiffs and Defendant No.2 contends that, since the Fish vending business taken by Defendant No.3 is the family business, so out of the funds gained from the said business, the Defendant No.3 has acquired Item No.3 of the Suit Schedule Property. Therefore, Item No.3 of the Suit Schedule Property will become the joint family property.
16.02. The Defendant No.3 and 4 contends that, Item No.3 of the Suit Schedule Property is purchased by the Defendant No.3 out of his self earnings and not from the joint family funds, as contended by the Plaintiffs.
65O.S.No.26058/2013 16.03. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW.1, at Page No.14, Para No.3, which reads as under:-
"It is false to suggest that defendant No.3 has earned item No.3 suit schedule property out of his own funds. It is false to suggest that I have not produced any document to show that item No.3 suit schedule property is purchased out of the joint family funds. It is false to suggest that I am deposing falsely that item No.3 suit schedule property is purchased out of the joint family funds without producing any document to that effect. I came to know about the purchase of item No.3 suit schedule property during existence of the joint family itself. Neither myself nor plaintiff No.2 nor the defendant No.2,4 and 5 have questioned the purchase of item No.3 suit schedule property by the defendant No.3 on 07.09.2000 - Ex.P2, nor we have issued any notice to him, to that effect."
As per this evidence, Plaintiff No.1/PW.1 denies the suggestion made to her on behalf of the Defendant Nos.3 and 4 that, Defendant No.3 has earned Item No.3 66 O.S.No.26058/2013 of the Suit Schedule Property out of his own funds. She contends that, the said property is purchased out of the joint family funds.
b) cross examination of DW.1, at Page No.25, Para No.4, which reads as under:-
"It is true to suggest that Item No.3 Suit Schedule Property is purchased by me out of the funds, earned by me, by vending fish in Item No.1 of the Suit Schedule Property."
As per this evidence, Defendant No.3/DW.1 affirms the suggestion made to him on behalf of the Plaintiffs that, Item No.3 of the Suit Schedule Property is purchased by him out of the funds earned by him by vending fish in Item No.1 of the Suit Schedule Property.
16.04. Coming to the documentary evidence, on this point.
16.04.01.The Plaintiff has produced the certified copy of the Sale Deed dtd.07.09.2000 at Ex.P2.
As per this document, it is seen that, Markendey K S/o Krishnappa Naidu has sold Item No.3 of the Suit 67 O.S.No.26058/2013 Schedule Property to the Defendant No.3 for the valuable consideration of Rs.4,81,000/-. Further this document indicates that, the purchaser has been put into possession of the purchased property on the day of its purchase. So also, this document also indicates that, the consideration amount is paid by the purchaser to the seller.
16.04.02.The Defendant No.3 has produced the khata certificate at Ex.D12 and khata extract at Ex.D13.
As per these document, it is seen that, the name of the Defendant No.3 is shown to be the owner in possession of Item No.3 of the Suit Schedule Property.
16.05. Though the Plaintiffs and the Defendant No.2 contend that, Item No.3 of the Suit Schedule Property is acquired by the Defendant No.3 from the joint family funds raised under the family fish vending business, carried in Item No.1 of the Suit Schedule Property, but they have failed to show that, the fish vending business is a family business; and the funds 68 O.S.No.26058/2013 raised under the said business are the joint family funds.
16.06. Thus, under such circumstances, as well as, as per the ocular and documentary evidence, placed on record, it can be concluded that, Item No.3 of the Suit Schedule Property is not the joint family property, as contended by the Plaintiffs and the Defendant No.2. But it is the self acquired property of the Defendant No.3.
Further neither the Plaintiffs, nor the Defendant No.1, nor the Defendant No.2, and nor the Defendant No.4 will have any right, title or interest in Item No.3 of the Suit Schedule Property.
17. D) Inrespect of Item No.4 of the Suit Schedule Property.
Item No.4 of the Suit Schedule Property is gold ornaments of 30 sovereigns, consisting of gold bangles and gold, together waving 30 sovereigns.
69O.S.No.26058/2013 17.01. The Plaintiffs and the Defendant No.2 contends that, Item No.4 of the Suit Schedule Property is the property acquired by Lokaiah Naidu and Kanamma, after the death the said property is with the Defendant No.3.
17.02. Percontra, the Defendant Nos.3 and 4denies the existence of Item No.4 of the Suit Schedule Property; as well as denies that the said property is in possession of Defendant No.3.
17.03. When the Defendant Nos.3 and 4 have denied the existence of Item No.4 of the Suit Schedule Property and when the Plaintiffs and the Defendant No.2 asserts, existence of the said property, then it is for the Plaintiffs and the Defendant No.2 to prove the fact of existence of Item No.4 of the Suit Schedule Property, as Sec.101 and 103 of Indian Evidence Act.
17.04. Coming to the ocular evidence, on the point of existence of Item No.4 of the Suit Schedule Property, more specifically, 70 O.S.No.26058/2013
a) cross examination of PW.1, at Page No.15, Para No.4, which reads as under:-
"It is false to suggest that I have not produced any documents to show that item No.4 suit schedule property is in existence and it belongs to the joint family. It is false to suggest that I am deposing falsely that item No.4 suit schedule property is in existence and belongs to the joint family property without producing any document."
As per this evidence, Plaintiff No.1/PW.1 denies the suggestion made to her on behalf of the Defendant Nos.3 and 4 that, Item No.4 of the Suit Schedule Property is not in existence and such property does not belonged to the joint family.
b) cross examination of DW.1, at Page No.12, Para No.1, which reads as under:-
"It is false to suggest that family of my father was consisting of gold ornaments of 30 Sovereigns in the form of gold bangles and gold weighing 30 Sovereigns, as shown as item No.4 of the Suit Schedule Property. My parents were not owining any gold ornaments."71
O.S.No.26058/2013 As per this evidence, Defendant No.3/DW.1 denies the suggestion made to him on behalf of the Plaintiffs that, the family of his father was possessing 30 sovereigns gold ornaments in the form of bangles and the gold, as shown as Item No.4 of the Suit Schedule Property. Further the Defendant No.3 has specifically denied that, his parents have never owned any gold ornaments.
c) cross examination of DW.1, at Page No.27, Para No.1, which reads as under:-
"During the lifetime of my mother, she was having earrings, as her jewellery. It is false to suggest that, my mother has left 30 sovereigns of gold ornaments consisting of gold bangles, etc., It is false to suggest that, I am deposing falsely that, my mother has not left any jewellery."
As per this evidence, Defendant No.3/DW.1 denies the suggestion made to him on behalf of the Plaintiffs that, his mother has left 30 sovereigns of gold ornaments consisting of gold bangles etc., 72 O.S.No.26058/2013 17.05. The Plaintiffs and the Defendant No.2 have failed
a) to show existence of Item No.4 of the Suit Schedule Property;
b) either Lokaiah Naidu, or Kanamma have left 30 sovereigns of gold ornaments in the form of gold bangles and gold.
17.06. Thus, when the Plaintiffs and the Defendant No.2 have failed to prove existence of Item No.4 of the Suit Schedule Property; and when they have failed to prove that, such property has been left by either Lokaiah Naidu or Kanamma, then under such circumstances, they will not be entitle to claim any share in the property, which is not in existence.
18. Thus, the Plaintiffs have failed to show that, Item Nos.1 to 4 of the Suit Schedule Properties are the joint family properties and they are liable for partition, as claimed by them; that the Gift Deed dtd.29.05.2013 executed Kanamma infavour of Defendant No.3, inrespect of Item No.2 of the Suit Schedule Property is 73 O.S.No.26058/2013 not in accordance with law, resulting in depriving their right over the said property; and that the Defendant No.3 taking the advantage of the situation is making hectic attempts to transfer Item No.1 of the Suit Schedule Property to the so called domestic helper- Defendant No.6.
Hence, I am constrained to ISSUE NOS.2 TO 4 IN THE NEGATIVE.
19. ISSUE NO.5:
Since the Plaintiffs have failed to show that, they are having right, title and interest over Item Nos.1 to 3 of the Suit Schedule Property; and since they have failed to show the existence of Item No.4 of the Suit Schedule Property, then they are not entitle for any share in the said properties, muchtheless to the extent of 1/10th share as claimed by them.
It is needless to mention that, the Defendant No.2 being one of the beneficiaries under the Will dtd.26.05.1983-Ex.D9, executed by Lokaiah Naidu, he 74 O.S.No.26058/2013 will be entitle to have 1/6th share in Item No.2 of the Suit Schedule Property.
Since Defendant No.2 is alive and he is the beneficiaries under the Will dtd.26.05.1983-Ex.D9, on the death of Lokaiah Naidu, the Plaintiff No.2, being son of Defendant No.2, will not be entitle for any share, in the said property, as claimed by him.
Hence, I am constrained to answer ISSUE NO.5 IN THE NEGATIVE.
20. ISSUE NO.6:-
When the Plaintiffs have failed to show their right, title and interest in Item No.2 of the Suit Schedule Property, then they will not entitle for the relief of declaration as claimed, under Prayer (c) of the Suit Plaint.
Hence, I am constrained to answer ISSUE NO.6 IN THE NEGATIVE.75
O.S.No.26058/2013
21. ISSUE NO.7:-
For having answered Issue No.1 Partly in the Affirmative; and Issue Nos.2 to 6 in the Negative, I proceed to pass the following:
ORDER The suit of the Plaintiffs is hereby Dismissed.
It is declared that, the Plaintiffs, Defendant No.1 and Defendant No.4 are not having any share in Item Nos.1 to 4 of the Suit Schedule Properties.
Further it is declared that the Defendant No.2 is having 1/6th share in Item No.2 of the Suit Schedule Property. And the Defendant No.2 is not having any share in Item Nos.1, 3 and 4 of the Suit Schedule Properties.
Further it is declared that, the Defendant No.3 is having 5/6th share in Item No.2 of the Suit Schedule Properties.
Further it is declared that the leasehold rights/ Licensing rights inrespect of Item No.1 of the Suit 76 O.S.No.26058/2013 Schedule Property and Item No.3 of the Suit Schedule Property are the Self Acquired Properties of the Defendant No.3.
Partition be effected in Item No.2 of the Suit Schedule Properties, inbetween the Defendant Nos.2 and 3, as per the Partition Act.
Looking to the special facts and circumstances of the case, both the parties are directed to bear their respective costs.
Draw Preliminary Decree
accordingly.
----
(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 14th day of January, 2022) (Abdul-Rahiman. A. Nandgadi.) LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 77 O.S.No.26058/2013 Schedule Properties:
Item No.1:-
All that piece and parcel of Fish stall bearing Shop No.11 Russel Market, Shivajinagar, Bangalore, measuring East to West 10 feet and North to South 8 feet:
East by: Road, West by: Other Shops, North by: Shop No. 12, South by: Shop No. 11. Item No.2:-
All that piece and parcel of House Property bearing Municipal Number 9/4, (old No.9 and 8), Seppings Road, "S' No.4th Street, Division No.55, Civil Station Bangalore, on the Eastern side North- Eastern portion old No.8 New No.9, S. No.4th Street, sepping Road, Baharathinagar Bangalore, comprising of Ground floor and first floor measuring to an extent of 6.5 + 12.79/2x9.16+7.84+22/2 bounded on:
East by: Private Property,
West by: Private Property,
North by: Road,
South by: Private Property.
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O.S.No.26058/2013
Item No.3:-
All that piece and parcel of Site No.264 in HBR 1 st Stage, 2nd Block Extension, Bangalore, measuring East to West 9.14 meters and North to South 12.19 meters in all measuring 111.42 square meters bounded on:
East by: Site No. 265, West by: Site No. 263, North by: Road, South by: Site No. 267. Item No.4:-
Gold ornaments of 30 sovereigns consisting of gold bangles and a gold together weighing 30 sovereigns.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 79 O.S.No.26058/2013 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Vanitha.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1: Certified copy of the Sale Deed dtd.21.01.1981. Ex.P2: Certified copy of the Sale Deed dtd.07.09.2000. Ex.P3 & 4: Encumbrance Certificates. Ex.P5: Assessment receipt.
Ex.P6: Acknowledgment.
Ex.P7: Electricity Requisition. Ex.P8: Office copy of the Notice. Ex.P8(a) to (g): 4 postal receipt & 3 acknowledgment. Ex.P9: Reply notice.
Ex.P10: Certified copy of registered Gift Deed dtd.30.08.2012.
Ex.P11, 11(a) to (i): 12 receipts.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: Ethirajulu.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS: Ex.D1 & 2: Certified copy of Khata certificate & Khata extract.
Ex.D3 & 4: Certified copies to two electricity bill requisition. Ex.D5 & 6: Certified copies of two water bill requisition.
Ex.D7 & 8: Certified copy of 2 property tax receipts.80
O.S.No.26058/2013 Ex.D9: Registered Will dtd:26.05.1983 executed by Lokaiah Naid.
Ex.D10: Registered Will dtd:26.05.1983 executed by Kanamma.
Ex.D11: Property tax receipt. Ex.D12: Certificate issued by the BBMP authorities. Ex.D13: Extract from the assessment list. Ex.D14: Encumbrance certificate. Ex.D15: Registered Release Deed. Ex.D16: Notice issued by the BBMP authorities. Ex.D17: Certificate issued by the Commissioner. Ex.D18 to 74: 57 Receipts.
Ex.D75 to 139: 65 Medical receipts. Ex.D140: Certified copy of amended plaint in SC No.1248/2013.
Ex.D141 to 146: Certified copy of the Suit Plaint, Written Statements, Vakalathnama of Defendant No.2 and Vakalathnama of Defendant No.3, in OS No.26390/2013. Ex.D147 to 150: 4 electricity bill requisitions.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)