Bangalore District Court
Smt. Ramakka vs Sri. Doddamuniyappa on 10 February, 2021
IN THE COURT OF XV ADDITONAL CITY CIVIL &
SESSIONS: JUDGE AT BENGALURU (CCH.NO.3)
Dated this 10 th day of February 2021
O.S. No.369/2011
Plaintiff's :- 1. Smt. Ramakka
W/o Late Chinnappa,
Aged about 70 years.
2. Smt. Krishnamma,
D/o Late Chinnappa,
Aged about 51 years,
3. Sri. Venkatalakshmi,
D/o Late Chinnappa,
Aged about 45 years.
All are residing at No. 295,
7th B Cross, Yelahanka Main
Road,Jakkur Village,
Jakkur Post,
Yelahanka Hobli, Bangalore
North Taluk, Bangalore-560064
(P.1 to P.3)
(Rep.by A.K.L., Advocate)
V/s
Defendant's :- 1. Sri. Doddamuniyappa,
S/o Late Kariyappa,
Aged about 64 years.
2. Sri. Chikkamunaiah,
S/o Late Kariyappa,
Aged about 60 years.
3. Sri. Subramani
S/o Late Kariyappa,
Aged about 54 years.
All are residing at Jakkur
Village, Jakkur Post,Yelahanka
Hobli, Bangalore North Taluk,
Bangalore-560064
(D.1 to D.3)
(Rep.by S.K.S., Advocate)
4. M/s. Shobha Inner City
Technopolice Pvt.Ltd.,
Represented by its
Director/authorized
signatory Having its
registered office at No. E-
106, Sunrise Chambers,
No.22, Ulsoor Road,
Bangalore-560042
(Rep.by M.D., Advocate)
Date of Institution of the
suit 11.01.2011
Nature of the Suit (suit for
pronote, Suit for Suit for Partition and
declaration and possession, Separate possession
Suit for injunction, etc.):
Date of the commencement
of recording of the 16.09.2016
Evidence:
Date on which the
Judgment was pronounced: 10.02.2021
Total duration: Year/s Month/s Day/s
10 00 29
J U D GM E N T
The plaintiffs have filed this suit for partition and
separate possession of their ½ share in the suit schedule
property by metes and bounds and to hold that the
alleged sale deed dated 13.06.2001 is not binding on
their share.
2. The brief averments of the plaint are as follows :-
That late Chinnappa who is the husband of first
plaintiff and father of the plaintiff Nos. 2 and 3 and late
Kariyappa, the father of the defendants No. 1 to 3 are
sons of one Late. Venkatappa S/o Late. Purukalappa.
The suit schedule property was belonged to said Late.
Venkatappa and it was granted to him by the
Government on 30.08.1952 by the Deputy Commissioner.
The Government has also issued Grant Certificate dated
22.02.1953. The said Late Venkatappa died intestate
leaving behind his three sons Puttanna, Kariyappa and
Chinnappa. Puttanna died intestate without marriage.
There is no partition or settlement with respect to the
suit schedule property during the lifetime of Venkatappa
or his children. Kariyappa and Chinnappa died leaving
behind them and the defendants No.1 to 3 as their legal
heirs and successors to the suit schedule property. since
deferences arose in the family, they are living separately
from the defendants No.1 to 3. On 07.07.2010, they
demanded the defendants No.1 to 3 to effect partition of
the suit schedule property. But, the defendants have
postponed the same. When the Panchayath was weld
through well wishers on 16.12.2010 to effect partition,
they came to know from the defendants that one
R.Venkatesh and S.Raghunath colluding with the
defendant No.4, have fraudulently created and concocted
a General Power of Attorney in their favour alleged to be
executed by the defendants No.1 to 3 along with their
mother late Sadamma without their knowledge and
consent. The defendants No.1 to 3 allegedly filed a
petition before the Assistant Commissioner, Bangalore
North for restoration of suit schedule property in their
favour. However, the said proceedings were not within
their knowledge. They have no knowledge about the
transaction made between the defendants. On
18.12.2010, they went to Sub-registrar to verify the
alleged fact and they found that the sale deed dated
22.12.2010 has been executed by defendants No.1 to 3 in
favour of defendant No.4. The allegation was made only
with an intention to defraud their rights over the
schedule property and the said sale deed created is and
concocted behind their back. The defendant No.4 has no
manner of right, title and possession over the suit
schedule property. Though, the alleged sale deed dated
13.06.2001 is allegedly executed by GPA Holders of
defendants No.1 to 3, the said GPA is concocted and
created and fraud has been played on them. The said sale
deed will not affect their right over the suit schedule
property and it is not binding on their legitimate share.
They are entitled for ½ share in the suit schedule
property. Hence, the suit.
3. The defendants No.1 to 3 though appeared
through their Counsel, they did not file any written
statement. The defendant No.4 Company has appeared
through its Counsel and has filed its written statement
and has contended as follows :-
That the suit is not maintainable either in law or on
facts. They dispute the alleged relationship of the
plaintiffs with the deceased Chinnappa and the
defendants No.1 to 3. The plaintiffs have filed this suit in
with collusion with the defendants No.1 to 3 in order to
harass them and to hold them for huge ransom. They are
in possession and enjoyment of the schedule property
and hence Court fees paid is insufficient. In the guise of
filing the suit for partition, the plaintiffs are challenging
the sale deeds executed in their favour in the year 2001.
Hence, they are liable to pay the Court fees on the market
value of the property. It is also not disclosed as to
whether the suit schedule property is the only property
available for partition or there are other properties which
are also available for partition. The suit is barred by
limitation. The suit is also bad for non-joinder of
necessary parties. The suit schedule property was
granted to one Venkatappa in the year 1952. After his
death in view of the family arrangements held between
his sons Channappa and Kariyappa, the suit schedule
property was fallen to the share of the said Kariyappa
and Revenue records were got mutated into IHC 7/1984-
85. After the death of Kariyappa, the katha was created
to the name of mother of the defendants No.1 to 3 Smt.
Sadamma. Smt. Sadamma was in need of money for her
family arrangements and hence she had executed a
registered agreement of sale dated 16.06.1995 in favour
of one H.Yeshwanth Shenoy. On the same day, she
executed a GPA in favour of one S. Raghunath and
R.Venkatesh. Later, she applied for permission to sell the
schedule property under PTCL Act and Government
granted permission on 23.02.2000. She got converted
the schedule property for residential use on 27.09.1999
vide order bearing No. B.DIS ALN (NA) SR:18/1999-2000.
Subsequently, GPA holders representing Smt.Sadamma
along with defendants No.1 to 3 had executed a
registered sale deed dated 13.06.2001 in its favour who is
the nominee of Mr. H. Yeshwanth Shenoy. Since then the
Company is in possession and enjoyment of the suit
schedule property having absolute right, title and interest
over the same. The defendants No.1 to 3 along with their
family members have also executed a registered deed of
declaration in their favour on 07.09.2004 admitting and
affirming the sale deed executed and the acts and deeds
done by their GPA Holders. The plaintiffs who are no way
connected with the suit schedule property in with
collusion with the defendants, have come up with this
suit. Subsequent to purchase of the suit schedule
property, they obtained permissions from various
authorities during the year 2002-03 and put up
construction of a Apartment and it was completed in the
year 2005. During the period of construction and
thereafter until filing the suit, the plaintiffs have not
raised any claim or dispute against them with respect to
suit schedule property. The plaintiffs were very well
aware that they have no right, title and interest over the
suit schedule property. They did not object for
development of the suit schedule property by them. Now
with ulterior motive, they have filed the suit and hence it
is not maintainable. After completion of the construction
of apartments, they have sold and alienated all the
apartments and Row Houses to third parties along with
undivided share in the land and common amenities
during the year between 2004 to 2006. This alienation
made are well within the knowledge of the plaintiffs. Only
to humiliate and to extract money, the suit has been
filed. The purchasers have formed 'Sobha Zircon
Apartment Owners Association' registered on 23.02.2006,
Sobha Amber Apartment Owners Welfare Association
registered on 24.01.2007 and 'Sobha Malachite Home
Owners Welfare Association registered on 17.02.2007.
They have also formed a Federation namely 'Sobha
Ultima Home Owners Association' having its office at
Sobha Ultima Campus, behind Jakkur Plantations,
Yelahanka Hobli, Bengaluru. The said Apartment/Row
Houses owners are not only in possession of respective
Apartment/Row houses and also the land comprising the
composite property including the suit schedule property.
They are taking care of the maintenance and all the
Apartments and common amenities. As such, The
plaintiffs have no right over the said property. Since the
entire Apartment/Row Houses have been sold, the
Company is not the necessary party to the suit. Hence,
the suit is liable to the dismissed. There is nothing to be
sold or alienated by them at present. According to the
plaintiff, the suit schedule property is the agricultural
land but it is not as on today. Since all the
Apartment/Row Houses completely sold to the various
purchasers in between the year 2004 and 2006.
Therefore, the entire property i.e., land and building
belongs to the purchasers or third parties. The claim of
the plaintiff is misconceived, baseless and illegal. The
plaintiffs have put to strict proof of the alleged
relationship between them and defendants No.1 to 3. As
per the representation given to them by the defendants
No.1 to 3, the said Channappa had no issues. Only to
knock off the valuable property, the suit has been filed.
The averments made in paras No. 3 to 5 are all false. It is
false that the plaintiffs and defendants are in joint family
and they are in joint possession of the suit schedule
property. The plaintiffs have not come forward to disclose
the date of death of the said Chinnappa. This itself leads
to lots of suspicion. The averment made in para No.7 to
9 are also false. The plaintiffs are no way connected with
the suit schedule property or with the family of
Venkatappa and they have no locus standi to file the suit.
The cause of action is created for the purpose of filing of
the suit. On all these grounds, they have prayed for
dismissal of the suit.
4. Basing on the above pleadings, the following
issues and additional issues have been framed in this
case :-
I S S U E S
1.Whether plaintiffs prove that suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3 and the same has been granted by the Government in favour of Venkatappa ?
2. Whether defendant No.4 proves that he is the bonafide purchaser of the suit property ?
3. Whether plaintiffs prove that they are entitle for partition and separate possession of half share in the suit property by metes and bounds ?
4. What order ?
ADDITIONAL ISSUES FRAMED ON 20.03.2018
1. Whether defendant No.4 proves that suit is bad for nonjoinder of necessary parties?
2. Whether defendant No.4 further proves that suit is barred by limitation ?
3. Whether defendant No.4 further proves that plaintiff has not paid proper Court fees ?
4. Whether defendant No.4 further proves that suit property is not identifiable and it cannot be divided by metes and bounds?
ADDITIONAL ISSUE NO.5 FRAMED AS PER ORDER DATED 04.11.2020
5. Whether the suit for partial partition is maintainable ?
5. In order to prove their case, the plaintiffs have examined plaintiff No.3 as P.W.1 and one witness as P.W.2 and they have got marked 45 documents as Exs.P.1 to P.45 on their behalf. The Authorized Signatory of defendant No.4 Company has examined him self as D.W.1 and got marked 38 documents as Exs.D.1 to D.38. 6 . I have heard the arguments of both sides and perused the entire materials on record. Having regard to the same, I answer the above issues as here under :-
Issue No. 1 :- In the affirmative
Issue No.2 :- In the negative
Issue No.3 :- In the affirmative
Issue No.4 :- As per final order
Addl.Issue No.1 :- In the negative
Addl.Issue No.2 :- In the negative
Addl.Issue No.3 :- In the negative
Addl.Issue No.4 :- In the negative
Addl.Issue No.5 :- In the negative
R E AS O NS
7. Issue Nos. 1 to 3 :- Since these issues are inter connected they are taken up together for discussion to avoid repetition. It is not in dispute in this case, the suit schedule property was originally granted to late Sri. Venkatappa s/o Purukalappa. The plaintiffs have alleged in the plaint at para 3 that the suit schedule property was granted to late Sri. Venkatappa by Government in Order No.R6079-81 LR 468-49 dated 30.08.1952 communicated in DC/s memo No. M2-2853/48-9 dated 31.10.1952 and SDC's memo B4 No. PR 42/52-53 dated 10.11.1952 at free cost amongst other conditions that he shall not alienated forever. The Government has also issued Grant Certificate dated 22.02.1953.
8. The plaintiff who is examined as P.W.1 has reiterated the same in his evidence. In support of his oral evidence, he has produced the Original Grant Certificate and it is marked as Ex.P.13 and the typed version is marked as Ex.P.13(a). The said Grant Certificate reveal that the suit schedule property has been granted in favour of Venkatappa S/o Purukalappa on 22.02.1953. Further, condition No.8 mentioned in the said Grant Certificate show that a condition of non alienation has been imposed. P.W.1 has also got marked the RTC Extracts of the suit schedule property for the period from 1966-67 to 1975-76 as Exs.P.26 and P.27. The said documents reveal that subsequent to grant, khatha has been made out in the name of Venkatappa and his name is shown both in column Nos.9 and 12(2) of the RTC Extracts.
9. The defendant No.4 Company has also admitted in para 9(a) of its written statement that the suit schedule property was granted to Venkatappa in the year 1952. The name of said Venkatappa is shown in the Genealogical Tree produced by the plaintiff marked as Ex.P.1 and also in the copy of the Genealogical Tree marked by the defendant No.4 through D.W.1 as Ex.D.36. As such, there is no dispute between the parties that the suit schedule property was granted in favour of Venkatappa S/o Purukalappa on 22.02.1953.
10. Further, the relationship of the plaintiffs with the defendants No.1 to 3 is seriously disputed by the defendant No.4. As such, it has to be decided as to whether the plaintiffs have proved that they are the wife and children of Chinnappa or Channappa who is the son of Venkatappa. The defendant No.4 admit that Venkatappa had a son by name Channappa. But, they are contending that he died issueless.
11. The case of the plaintiffs is that the husband of the plaintiff No.1 and father of plaintiffs No.2 and 3 by name Chinnappa and father of defendants No.1 to 3 by name Kariyappa are the sons of said late Sri. Venkatappa S/o Purukalappa. The plaintiffs have pleaded about the same in para 2 of the plaint. P.W.1 has also stated the same in para 1 of his affidavit filed in lieu of his examination in chief. He has also got marked the Genealogical Tree as Ex.P.1 and in the said document it is shown that Chinnappa and Kariyappa are the children of Late Venkatappa S/o Purukalappa.
12. The defendant No.4 Company has denied the relationship of the plaintiffs with the said Venkatappa and they have contended in para 2 of their written statement that they dispute the alleged relationship of plaintiffs with the deceased Chinnappa. At para 10 of their written statement they have contended that the name of the bother of said Kariyappa is not Chinnappa, but it is Channappa. As per the representation made by defendants No.1 to 3 to them, the said Channappa had no issues.
13. During the course of the arguments, the Counsel for the plaintiff argued that it is not in dispute that Chinnappa and Kariyappa are the children of Venkatappa. The defendant No.4 has denied the relationship of the plaintiffs with the defendants No.1 to
3. But, Genealogical Tree marked as Ex.P.1 clearly proves the relationship. One witness is also examined as P.W.2 and he has also clearly stated about the relationship. Nothing is elicited during the cross examination of P.W.1 and P.W.2 to disprove their evidence regarding the relationship between the plaintiffs and the defendants No.1 to 3. The Genealogical Tree produced by the defendant No.4 marked as Ex.D.36 is concocted and created and it has been tampered and the word ''ಸಸತತನ ವಲಲ " has been inserted later. It can be seen that the ink and the handwriting of the said word is totally different than other writings in the said document. It is a xerox copy and the original document is also not produced and as such the said document is not proved. The plaintiffs have placed sufficient materials to prove the relationship and hence it has to be held that the plaintiffs are the children of late Chinnappa.
14. On the other hand, the Counsel for the defendant No.4 argued that they have denied the relationship of the plaintiffs with defendants No.1 to 3 in the written statement. In the affidavit evidence of D.W.1,has stated that the plaintiffs are no way concerned with Venkatappa as well as Chennappa. At page 13 of deposition of P.W.1, when it is the suggested that Chinnappa had no issues, it is denied by him. He has stated in his evidence that he has not obtained Survival Certificate and the entries in Aadhar Cards produced by him are made as per the information given by him. If necessary, he will examine the witnesses to the Genealogical Tree as witnesses. In M.R No. 1/84-85 marked as Ex.P.14, it is mentioned that Venkatappa had two children and no other legal heirs. Even in Ex.D.36, it is shown that Venkatappa had only two children. Ex.P.2 is the Registered Sale Deed dated 13.06.2001 produced by P.W.1 and Ex.D.1 is marked by confronting the same during the course of cross examination of P.W.1. At page 3 of Ex.P.2 and Ex.D.1 it is clearly mentioned that "both Channappa and wife having died issueless". However, in the entire plaint or evidence on behalf of the plaintiffs, the contents of the said documents are not disputed. In Ex.P.35 which is the Aadhar Card of plaintiff No.2, her father name is shown as Chinnappa.H. The said initial 'H' is not available for any other documents produced by the plaintiffs including Exs.P.1, P.33, P.35, P.36 and P.38. The plaintiffs have not produced any other documents show that they are the children of Chinnappa. Ex.P.1 Genealogical Tree is self made declaration and unless there is corroborative and documentary evidence, the same cannot be accepted. The plaintiffs have not bothered to examine two witnesses alleged to have signed in Ex.P.1. They have also not examined any of their relatives to prove the relationship. P.W.2 has deposed in his cross examination that he has no knowledge about the family and he know only about Rajanna, who is plaintiff No.3. As such, the evidence of P.W.2 is no use to the plaintiffs to prove the relationship. As per Section 32(5) and 50 of Evidence Act, the relationship is not proved. Hence, it has to be held that the plaintiffs have failed to prove their relationship with the defendants No.1 to 3.
15. In support of his arguments, the Counsel for the defendant No.4 has relied on a decision reported in (1983) 3 SCC 118 in which in the case of State of Bihar V/s Tadha Krishna Singh and others it is held that "genealogical tree is the very basis of the plaintiffs case and since there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the courts should endeavour to do justice on the materials and records uninfluenced and undaunted by any extraneous circumstances". He has also relied on another decision rendered in RFA 2412/2007 dated 14.11.2013 in which in the case of Smt. Sarojamma V/s Smt. Vimala the Hon'ble High Court has held that "mere production the Genealogical Tree issued by the Village Accountant, Marriage invitation Card, Photographs, Transfer Certificate are not sufficient unless original registered pertaining to said documents are marked in respect of Genealogical Tree".
16. The plaintiffs have pleaded In para 2 of the plaint that the husband of the plaintiff No.1 and father of plaintiffs No.2 and 3 by name Chinnappa and father of defendants No.1 to 3 by name Kariyappa are the sons of said late Sri. Venkatappa S/o Purukalappa. P.W.1 has also stated the same in his affidavit. He has got marked the Genealogical tree as Ex.P.1 and the Voter Id card, death ceremony card of his mother and also the Aadhar cards of himself and the plaintiff No.2 as Ex. P. 33 to 36. The plaintiffs have also examined one witness as P.W.2 and he has also stated about the relationship of the plaintiffs and defendants No.1 to 3 in his examination in chief.
17. The authorized signatory of defendant No.4 Company who is examined as D.W.1 has stated in para 15 of his affidavit filed in lieu of his examination in chief that the plaintiffs are not the children of Channappa. The plaintiffs are total strangers to the suit schedule property. The defendants No.1 to 3 have represented to them that Late Channappa was not having any children and he died without any issue. As Channappa without any issue, the plaintiffs alleged claim as children of Channappa/Chinnappa is not maintainable. He has have also got marked the Genealogical Tree alleged to be furnished to them by defendants No.1 to 3 as Ex.D.36.
18. As such, two Genealogical Trees are produced in this case. The Genealogical Tree is produced by the plaintiffs marked as Ex.P.1 and copy of another Genealogical Tree is marked by the defendant No.4 Company through D.W.1 as Ex.D.36. Though, the defendant No.4 has disputed the relationship of plaintiffs with the defendants No. 1 to 3, they have admitted that late Venkatappa S/o Purukalappa had two sons. They contend that they are Channappa and Kariyappa. The plaintiffs are contending that the names of the sons of Venkatappa are Chinnappa and Kariyappa. In Ex.P.1, it is mentioned that Venkatappa had three sons by name Puttanna, Kariyappa and Chinnappa. It is also mentioned that Puttanna died issueless and the defendants No.1 to 3 are the sons of Kariyappa and plaintiffs No.1 to 3 are the wife and children of Chinnappa. In Ex.D.36, it is shown that Venkatappa had only two children by name Chinnappa and Kariyappa and it is also mentioned that Chinnappa died issue less. Though, the defendant No.4 has contended that the name of the one of the sons of Venkatappa is Channappa and not Chinnappa, it can be seen that his name is shown as Chinnappa in Ex.D.36. Even D.W.1 has very clearly admitted in his cross examination at para 20 that it is true to suggest that Kariyappa and Chinnappa are brothers. Further, there is no mention of another son by name Puttanna in Ex.D.36. D.W. 1 has stated in his cross examination at page 15 that he do not know that moolapurusha Venkatappa s/o Purukalappa had 3 sons by name Puttanna, Kariyappa and Chinnappa and he do not know that Puttanna was a bachelor and he died at young age. It can also be seen in Ex.D.36 that Chinnappa is shown as elder son. But, it is not in dispute in this case that Kariyappa is the elder son of Venkatappa and the same is shown as Ex.P.1. The defendant No.4 admits that Kariyappa is the elder son and they have contended that khatha was changed to his name after the death of Venkatappa. it is suggested by them during the cross examination of P.W.1 at page 9 that his father had given consent to change the khatha of suit property in the name of his elder brother Kariyappa. As such, there is clear admission by them that Kariyappa was the elder brother. But, in Ex.D.36 he is shown as younger brother.
19. Further, in Ex.D.36 that the wife of Chinnappa is shown as dead. Though, the name of wife of Kariyappa is shown as Sadamma, the name of wife of Chinnappa is not shown. The wife of Chinnappa is shown in the plaint as the 1st plaintiff in this case and her name is Ramakka. She was alive when the suit was filed. The date of issuance is also not mentioned in Ex.D.36. Further, it can also be seen in Ex.D.36that the word ''ಸಸತತನವಲಲ " written below the name Chinnappa is in different ink and it is also different handwriting. All these facts creates a serious doubt with regard to the genuineness of the said document and it supports the contention of the plaintiffs that it is created to defeat the rights of the plaintiffs over the suit schedule property. The defendant No.4 has got marked the said document stating that the said copy was given to them by defendants No.1 to 3. The defendants No.1 to 3 have not filed any written statement and they have also not stepped into the witness box. When the plaintiffs have seriously disputed the genuineness of the said document and contended that it has been tampered, it should have been the duty of the defendant No.4 to examine the author of the same or the defendants No. 1 to 3.
20. Further, the plaintiffs have also got marked the Election I.D Card, Death Ceremony Invitation Card of plaintiff No.1 as Ex.P.33 and 34 and the Aadhar Cards of plaintiffs No.2 and 3 as Exs.P.35 and P.36. In Exs.P.33 and 34, the name of husband of plaintiff No.1 is shown as Chinnappa and in Ex.P.36 the name of the father of plaintiff No.3 is also shown as Chinnappa. As such, Exs.P.1 and P.33 to 36 clearly prove the relationship of plaintiff with defendants No.1 to 3 and the said documents supports the case of the plaintiff and they are the wife and children of Chinnappa s/o late Venkatappa. Further, at page 9 of the cross examination of P.W.1, it is suggested by the defendant No.4 that his father has given consent to change the khatha of suit schedule property in the name of his elder brother Kariyappa. By this suggestion the defendant No.4 has admitted that Chinnappa is the brother of Venkatappa and father of P.W.1. This fact also prove the relationship of the plaintiffs with the defendants No.1 to 3.
21. Further, The plaintiffs have also examined one witness as P.W.2 and he has also stated in his examination in chief that late Venkatappa had three sons by name Puttanna, Chinnappa and Kariyappa. Out of three sons, Puttanna died unmarried and he had no issue. Kariyappa died leaving behind his wife Smt. Sadamma and the defendants, Chinnappa died leaving behind the plaintiffs. There is no suggestion in his cross examination that the plaintiffs are not the children of Chinnappa.
22. As such, if the entire materials on record and the evidence of P.W.1 and P.W.2 and the documents marked as Ex.P.1, P.33 to P.36 are taken into consideration, they clearly show that the plaintiffs are the children of Chinnappa who is the son of late Venkatappa and the brother of Kariyappa. Absolutely, there is no doubt regarding the same. Hence, the decisions relied on by the Counsel for the defendant No.2 will not in any way help the defendant No.4 and they are not applicable to the facts of this case.
23. Further, the case of the plaintiffs is that the suit schedule property is the joint family property of plaintiffs and the defendants No.1 to 3 and they are in joint possession of the suit schedule property. The suit schedule property continued as the joint family property without any division between them and the defendants No.1 to 3. The plaintiffs have pleaded in para 3 of the plaint that during the lifetime of Venkatappa or during the lifetime of his children there was no partition or settlement with respect to the suit schedule property. At para 5 they have pleaded that after the death of Kariyappa and Chinnappa, they and the defendants have succeeded to the suit schedule property and it continued as the joint family property. The plaintiff No.3 who is examined as P.W.1 has also reiterated the same in para 3 and 4 of his examination in chief. He has further stated that due to difference of opinion in the joint family property, he and other plaintiffs started to live separately from defendants No.1 to 3 and the suit schedule property continued to remain as a joint family property without any division. He has also got marked the RTC Extracts pertaining to the suit schedule property as Exs.P.3 to P.12 and Exs.P.26 to P.31. He has also got marked the Mutation Register Extract as Exs.P.14 and P.15 and the Death Certificate of his father as Ex.P.16. Ex.P.21 is the certified copy of Akar Bandh and Ex.P.22 is the Encumbrance Certificate. P.W.1 has also got marked Grant Certificate as Ex.P.13.
24. On the other hand, the defendant No.4 has contended that there was a family arrangements between sons of Venkatappa and as per the same the suit schedule property has fallen to the share of Kariyappa. After the death of Kariyappa his wife and children who are the defendants No.1 to 3 became the owner of the same and they have sold the suit schedule property in their favour and they are the absolute property of the suit schedule property.
25. As such, it is the case of the plaintiffs that, the suit schedule property is the joint family property of plaintiff and defendants No.1 to 3 and they are having right of ½ share in the same. On the other hand, the defendant No.4 Company has contended that the suit schedule property was fallen to the share of Kariyappa in the family arrangement and it has purchased the same from him and as such it is the absolute owner of the suit schedule property. As observed above, it is not in dispute that the suit schedule property was granted to Venkatappa under Ex.P.13 Grant Certificate. The RTC Extracts marked as Exs.P.26 and P.27 reveal that the khatha for the years 1966-67 and 1975-76 was standing in the name of said Venkatappa S/o Purukalappa. After that, the name of Kariyappa has been entered from the year 1986-87 and in Ex.P.28 the name of Kariyappa is shown for the period from 1986-87 to 1987-88. Further, it can also be seen in Exs.P.28 to P.31 that the name of mother of defendants No.1 to 3 Smt. Sadamma has been entered from the year 1987-88 and it continued till the year 2000-2001. Ex.P.31 further reveal that the name of defendant No.4 Company is entered from the year 2001- 2002. Exs.P.3 to P.12 reveal that the name of defendant No.4 Company is continued in the RTC from 2001-2002 to 2010-2011.
26. Further Ex.P.14 is the Mutation Register Extract bearing No.1/84-85 and it reveal that on the basis of the same, the khatha was changed from the name Venkatappa to the name of Kariyappa. It is mentioned in the said document that based on the statement of Chinnappa, khatha has been changed to the name of Kariyappa. Ex.P.15 is the Mutation Register Extract bearing M.R No.4/87-88 and it reveal that after the death of Kariyappa, the khatha of the schedule property and other two properties have been changed to the name of Smt. Sadamma who is the mother of defendants No.1 to 3 after the death of Kariyappa.
27. The plaintiffs are alleging that the suit schedule property is still continued to be the joint family property of plaintiffs and defendants No.1 to 3. The defendant No.4 Company has contended in para No.9(b) of its written statement that after the death of Venkatappa in view of the family arrangements held between Channappa and Kariyappa the suit schedule property was fallen to the share of said Kariyappa and the Revenue records were got mutated into the name of said Kariyappa as per IHC No. 7/1984-85. Then, after the death of Kariyappa khatha was changed to the name of mother of defendants No.1 to 3 namely Smt. Sadamma. As such, defendant No.4 Company is mainly relying on Ex.P.14 Mutation Register Extract contending that under the family arrangement, the suit schedule property was fallen to the share of Kariyappa. Even at para No.14 of their written statement they have contended that in view of the family arrangements between the said Channapppa and his brother Kariyappa and they started living separately and the schedule property has come to the share of Kariyappa.
28. The plaintiff who is examined as P.W.1 has stated in para No.3 of his affidavit that there was no partition or settlement with respect to the suit schedule property. Though, it is suggested in the cross examination of P.W.1 at page 13 that a partition was took place between two sons of Venkatappa namely Kariyappa and Chinnappa, he has denied the same. In his cross examination at page 9 he has admitted that his father had given consent to change the khatha of suit schedule property in the name of his elder brother Kariyappa. Even at page 13 of his cross examination, he has admitted that it is true that as per family settlement the name of Kariyappa has been entered in the RTC's. As such, though he has admitted that the name of Kariyappa has been entered in the revenue records as per the family settlement and consent of his father, he has denied the partition between his father Chinnappa and Kariyappa. The Authorized Signatory of defendant No.4 Company who is examined as D.W.1 has stated in his affidavit at para 2 that during the year 1984-85 there was a family arrangements/ settlement between the sons of Venkatappa namely Channappa and Kariyappa and as per the family arrangements/settlement, the suit schedule property was fallen to the share of Kariyappa and the Revenue records got mutated to the name of said Kariyappa vide M.R. No. 1/84-85. Accordingly, Kariyappa became the absolute owner of the suit schedule property. In his cross examination at page 16, D.W.1 has stated that khatha has been changed to the name of Chinnappa's elder brother Kariyappa on the basis of statement given by Chinnappa. At page 18 of his cross examination, he has stated that he has not produced any documents regarding the family arrangement and it is mentioned in the Mutation Register Extract. He has further sated that he do not know which properties fell to the share of Chinnappa in the family arrangement.
29. During the course of the arguments, the Counsel for the plaintiff argued that the suit schedule property is the joint family property of plaintiffs and defendants. But, the same came to be alienated in favour of the 4 th defendant without allotting ½ share to the plaintiffs. The first son of the propositor of the family Puttanna died long back without marriage, The second son Kariyappa died prior to 1984. He was married to Sadamma and defendants No.1 to 3 are their children. The said Sadamma also died during the year 2003. The third son of the propositor Chinnappa was married to plaintiff No.1 and he died long back. The plaintiffs are the legal representatives of Chinnappa. Second and third sons of the propositor of the family have got equal share in respect of the suit schedule property. As such, the plaintiffs have succeeded to the share of third son Chinnappa with respect to ½ share in the suit schedule property. When the plaintiffs requested the defendants No.1 to 3 to partition the suit schedule property on 07.07.2010, they refused to effect partition and when a Panchayath was held on 16.12.2010 the plaintiffs came to know that the defendants No.1 to 3 have fraudulently created and concocted the GPA and they have sold the suit schedule property along with their mother on 13.06.2001 in favour of defendant No.4 Company. The family tree filed and got marked by the defendant No.4 as Ex.D.36 is a concocted document. The plaintiffs have placed sufficient materials to show that Chinnappa is the son of Venkatappa and the plaintiff No.1 is the wife of Chinnapppa and plaintiffs No.2 and 3 are his children. Under Ex.P.14 khatha has been made out as late Chinnappa had no objection for entering the name of Kariyappa, he being the elder member of the family. But, the said Chinnappa had not relinquished his right over the said property. There is no mention in Ex.P.14 regarding the same. As such, it has to held that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3.
30. On the other hand, the Counsel for the defendant No.4 argued that the plaintiffs have admitted that there was family settlement between Chinnappa and Kariyappa and as per the said family settlement, the name of Kariyappa entered in the Revenue records. P.W.1 has admitted the same in page 13 of his cross examination. The defendant No.4 is the bonafide purchaser and since the property was challenged to defendants No.1 to 3. They have purchased the same from Smt. Sadamma and defendants No.1 to 3. In the Revenue records, Smt. Sadamma is shown as the owner of the suit schedule property. She had obtained permission from the Government for sale of the same in favour of defendant No.4 and the documents are also produced regarding the same. The plaintiffs have never challenged the said sanction accorded by the Government of Karnataka in favour of Smt. Sadamma. Since there was a family settlement between Chinnappa and Kariyappa and since the suit schedule property was allotted to the share of Kariyappa in the said family settlement and there is an entry regarding the same in Ex.P.14, it has to be held that the suit schedule property was exclusively belonged to Kariyappa and after his death his wife and children have acquired the title over the same. Since they have sold the said property in favour of the defendant No.4, they have became the owner of the same. As such, there are no materials to hold that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3.
31. As such, the plaintiffs are contending that the suit schedule property is the joint family property. The defendant No.4 Company is contending that the suit schedule property was allotted to the share of Kariyappa in the family arrangement. Though, the defendant No.4 Company has taken the defence that there was a family arrangement/settlement between Chinnappa and Kariyappa and the suit schedule property was fallen to the share of Kariyappa, no documents are produced by them with regard to the alleged family arrangement/settlement. The defendant No.4 Company does not say that it is a partition. They are contending that it was a family arrangement/settlement. They have not examined any witnesses to prove the alleged family arrangement/settlement. They are mainly relying on Ex.P.14 Mutation Register Extract to prove the alleged family arrangement/settlement.
32. In Ex.P.14, it can be seen that it is mentioned that Venkatappa died about 20 years back and he has two sons by name Kariyappa and Chinnappa and Chinnappa has given statement for change of khatha to the name of Kariyappa. The khatha has been changed to the name of Kariyappa under the said Mutation proceedings. Further, the said change of khatha is shown to be made under IHC No. 7/84-85. Even in the RTC Extract marked as Ex.P.28 also it is mentioned in Column No.10 that the khatha has been made out to the name of Venkatappa under IHC No. 7/84-85. As such, the contents of Ex.P.14 and the entry in Column No.10 of Ex.P.28 RTC reveal that the khatha has been changed to the name of Kariyappa on inheritance basis. If the said khatha has been changed as per the family arrangement/settlement or partition, they should have given the M.R. number and the khatha should not have been made as IHC. Since it is mentioned that the khatha has been changed to the name of Kariyappa on inheritance basis, it goes against the contention of the defendant No.4 Company that there was a family arrangement/settlement. If there was a family arrangement/settlement or a partition, then some property should have been fallen to the share of Chinnappa. But, no documents are produced as to which property was fallen to the share of Chinnappa. If he had relinquished his share, then it should be by a registered deed. No such Release deed or Relinquishment deed is produced by the defendant No.4 Company to prove that Chinnappa had relinquished or released his right of share over the suit schedule property in favour of Kariyappa. Even there is no mention regarding the same in Ex.P.14 Mutation Register Extract.
33. Further, D.W.1 has stated in his cross examination at page 20 that he do not know which properties fell to the share of Chinnappa in the family arrangement. Since it is an admitted fact that suit schedule property was granted to Venkatappa, Chinnappa and Kariyappa are his two sons, the property has to be devolved upon Chinnappa and Kariyappa after the death of Venkatappa and they were having right of ½ share each. In the decision relied on by the Counsel for the plaintiffs reported in 2014 (2) KCCR 1196 in which in the case of Rathnamma and another V/s Hiriyamma and others it is held that "if the defense takes the plea of prior partition by way of oral partition, the burden is on the defendant to prove the factum of oral partition. The burden cannot be placed on the plaintiff to prove that the properties are joint family properties". As such, in this case since the defendant No.4 Company has taken a contention that there was a family settlement between Kariyappa and Chinnappa and the suit schedule property was allotted to the share of Kariyappa, the burden is on them to prove the same. But, no documents or oral evidence is placed on record to prove the alleged family arrangement/settlement. The contents of Ex.P.14 is totally contrary to the contention taken by them.
34. Further, it is not in dispute that, the defendant No.4 Company has purchased the suit schedule property from the defendants No.1 to 3 and their mother under the sale deed dated 13.06.2001. Ex.P.15 which is the Mutation Register Extract bearing M.R. No. 4/87-88 reveal that after the death of Kariyappa, the khatha was changed to the name of mother of defendants No.1 to 3 Smt. Sadamma. On the basis of the same, Smt. Sadamma and defendants No.1 to 3 have executed the sale deed in favour of the defendant No.4 Company. The plaintiffs have got marked the certified copy of the sale deed executed by Smt. Sadamma and defendants No.1 to 3 in favour of defendant No.4 and it is marked as Ex.P.2. The defendant No.4 has also confronted the said document to P.W.1 and got marked the same as Ex.D.1. Under the said sale deed, the suit schedule has been sold in favour of the defendant No.4 Company. Further, D.W.1 has also got marked regarding the order passed in favour of Smt. Sadamma to sell the suit schedule property and also the documents regarding the conversion of suit schedule property into non agricultural purpose and they have been marked as Exs.D.3 to D.21. Exs.D.23 is the Encumbrance certificate and Ex.d.24 is the certified copy of the sale deed which is also marked as Ex.D.1. They have got the RTC Extract as Ex.D.25. Further, the defendant No.4 Company has contended that they have constructed Apartment over the suit schedule property and other properties and the flats have been sold to the purchasers. D.W.1 has also got marked the list of flat owners as Ex.D.22 and also the Photographs and CD of the schedule property and other properties as Exs.D.34 and D.35.
35. Admittedly, the plaintiffs are not parties to the said sale deed marked as Ex.D.1 P.2 and D.24. As observed above, the defendants have not placed any materials on record to show that there was a family arrangement/settlement between Chinnappa and Kariyappa and the suit schedule property was fallen to the share of Kariyappa. It is a settled principle of law as per Section 8 of Transfer of Property Act that a person can only transfer to other person a right, title or interest in any property which he is possessed of, to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the said property. So, once it is proved that on the date of transfer of any property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer. In a decision reported in AIR 1955 Supreme Court 376 in which in the case of Jugalkishore Saraf V/s M/s Raw Cotton Co. Ltd., it is held that " As per Section 8 of T.P. Act, the transferor cannot pass any interest which is not in existence on the date of transfer". In another decision reported in 2015(1) Karnataka Page 259 in the case of Godha Realtors (India) Private Limited, Bangalore V/s Gangavathi Sugar Mils Limited (In Liquidation), Bangalore and Another it is held that "under Section 8 of TP Act, 1882 a transferor passes to the transferee the interest which the transferor is then capable of transferring and nothing more".
36. Further, Section 44 of the Transfer of property states that "Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. In the decision relied on by the Counsel for the plaintiffs reported in ILR 2004 Kar 2928 the Hon'ble High Court has held in which in the case of U.G. Srinivasa Rao V/s Vinayakumar and others it is held that "alienation made by one co-sharer without the consent of other co-sharer is void in so far as the co-sharers who have not consented to the said alienation. But, the said transaction cannot be said to be void as against the alienating co-sharer and it binds his undivided interest". In another decision relied on by him reported in (2008) 7 Supreme Court Cases 46 in which in the case of Hardeo Rai V/s Sakuntala Devi and others it is held that " even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of other coparceners cannot get possession of what he has purchased. Such a purchasers, however acquires a right to sue for partition". As such, it is clear that if one of the co-parceners transfers a property, the purchaser acquires only his share of interest.
37. Though, the legal heirs of Kariyappa have executed the sale deed with respect to the entire suit schedule property in favour of the defendant No.4 Company, the Company will acquire right only with respect to the share of Kariyappa and not of Chinnappa who is the husband of plaintiff No.1 and father of plaintiffs No.2 and 3. Since the defendant No.4 Company has not placed any materials to show that there was a family arrangement between Kariyappa and Chinnappa and the suit schedule property was fallen to the share of Kariyappa and since Ex.P.14 show that only on inheritance basis, khatha was changed to the name of Kariyappa, it has to be held that the right of Chinnappa over the suit schedule property is not extinguished. As such, the defendant No.4 will not acquire any right under the sale deed marked as Ex.P.2 and Ex.D.1 with respect to the share of Chinnappa who is the husband of plaintiff No.1 and father of plaintiffs No.2 and 3. The right of Chinnappa over the suit schedule property will only to be extinguished, if he had executed a registered release deed or registered relinquishment deed as per law. But, no such materials are placed by the defendant No.4 Company to prove the same. As such, since Kariyappa had no right to execute the sale deed with respect to the entire suit schedule property, the sale deed executed with respect to share of Chinnappa is null and void and it is not binding on the legal heirs of Chinnappa. Even though conversion order is obtained, permission is obtained for sale and Apartment is constructed and alienated it will not affect the rights of the plaintiffs over the suit schedule property. All the said documents and the construction are illegal as for as the share of plaintiffs over the suit schedule property is concerned. As such, it has to be held that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3 and the plaintiffs are entitled for partition and separate possession of ½ share in the suit schedule property. Since Smt. Sadamma and defendant No.1 to 3 had no right to execute the sale deed with respect to the entire suit schedule property, it cannot be held that the defendant No.4 is a bonafide purchaser. The defendant No.4 has contended that it has constructed the Apartment in the suit schedule property and other adjoining properties, it should have been their duty to enquire about the title over the suit schedule property. Ex.D.36 clearly show that it is not a genuine document. As such, it cannot be held that the defendant No.4 is a bonafide purchaser. Hence, I answer issue Nos. 1 and 3 in the affirmative and issue No.2 in the negative.
38. Addl.Issue No.1:- The defendant No.4 Company has contended in its written statement at para 8 that the suit is bad in the eye of law for non joinder of proper and necessary parties. They have also contended that they have constructed Apartment and Row Houses in the suit schedule property and they have been sold to various persons. The said alienation are within the knowledge of the plaintiff and hence the suit is liable to be dismissed. But, it is a well settled principal of law that the purchasers are only proper parties to a partition suit and not necessary parties. As such, the suit filed for partition cannot be dismissed on the ground that the purchasers are not made as parties to the suit. Hence, I answer this issue in the negative.
39. Addl.Issue No.2 :- The defendant No.4 Company has taken a contention at para 7 of its written statement that the suit is barred by limitation and as such it is not maintainable in law. This is a suit for partition and it is a well settled principal that for filing a suit for partition, there is no limitation. Even in the decision relied on by the Counsel for the plaintiffs reported in 2012 (4) AIR Kar 424 in which in the case of S.K. Lakshminarasappa (since dead by L.Rs) and others V/s B. Rudriah (since dead by LR's) and others it is held that "there is no period of limitation prescribed for filing of suit for partition. The share of the coparceners cannot be denied benefit of possession on ground that they are not in possession on the date of suit. The plaintiff would be entitled to recover for possession from 3 rd party also who is in possession of suit schedule property". In another decision relied on by the Counsel for the plaintiffs reported in 2015(2) KCCR 1437 (DB) in which in the case of Smt. Nanjamma V/s Smt. Allayamma since dead by her Lr's and other it is held that " though the agricultural land was converted for non agricultural purpose and layouts is formed it does not take away the right to claim share in property. The limitation Act prescribes no time limit for filing a suit for partition by a co-sharer or co-owner". As such, it is clear that there is no limitation for filing a suit for partition. Hence, the suit cannot be dismissed on the ground that the suit is barred by limitation. Hence, I answer this issue in the negative.
40. Addl.Issue No.3 :- The defendant No.4 Company has taken a contention at para 4 that it is in possession and enjoyment of the schedule property. The Court fees paid on the plaint is totally insufficient and proper Court fees has to be paid under provision of law. At para 5 they have contended that in the guise of filling a suit for partition, the plaintiffs are challenging the sale deeds executed in its favour in the year 2001. Hence, they are liable to pay Court fees on the market value of the property. But, the plaintiffs have filed the suit for partition and separate possession of their share alleging that they are in joint possession and enjoyment of the same. They have valued the suit under Section 35(2) of Karnataka Court Fees and Suit Valuation Act and have paid the fixed Court fees of Rs.200/-. In the decision relied on by the Counsel for the defendant No.4 reported in ILR 2001 KAR 3988 in which in the case of B.S. Malleshappa V/s Koratagigere B. Shivalingappa and others it is held that " if the plaintiff claims that he is in joint possession of a property seeking partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fees only under Section 35(2) of the Act. If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit my be dismissed. But, the question of the Court treating the suit as one falling under Section 35(1) of the Act directing the plaintiff to pay the Court fees under Section 35(1) of the Act does not arise. Even after written statement and evidence, (which may demonstrate absence of possession or joint possession) if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fees applicable thereto, he takes the chance of suit getting dismissed or relief being denied".
41. As such, it is clear that the Court fees has to be paid on the allegations made in the plaint. In this case the plaintiffs have alleged that they are in joint possession and enjoyment of the suit schedule property and they are entitled for ½ share in the schedule property. The materials on record also show that the plaintiffs have got right ½ share in the schedule property. The plaintiffs have sought for relief of declaration that the sale deed dated 13.06.2001 is not binding on their shares. It is a consequential relief and the plaintiffs are not parties to the said sale deed. As such, they did not pay Court fees on the market value of the suit schedule property. Since joint possession is alleged in the plaint and since the suit is filed for partition and separate possession, the Court fees paid is proper and sufficient. Hence, I answer this issue in the negative.
42. Addl.Issue No.4 :- The defendant No.4 Company has contended in para 9 of the written statement that they have purchased the suit schedule property and other adjacent properties and obtained permissions from various authorities to develop the composite property during the year 2002-2003 and they have put up construction of the Apartment and Row Houses in the year 2005. Now the suit schedule property is a part of composite property comprising larger extent of converted land and hence the suit property is not identifiable. The plaintiffs have shown the suit schedule property as the land bearing No.1 Block 21 measuring 1 Acre situated at Jakkur Plantations, Yelahanka Hobli, Bengalore North Taluk and they have also shown the boundaries. The defendant No.4 Company has admitted in para 9 of the written statement that the suit schedule property was granted to one Venkatappa in the year 1952 and later khatha was changed to the name of Kariyappa and then to Smt. Sadamma. After that, Smt. Sadamma and defendants No.1 to 3 have sold the schedule property under the agreement of sale dated 16.06.1995 and the registered sale deed dated 13.06.2001 and they are in possession of the same. As such, they admit the existence of suit schedule property in the written statement. Only because the construction is made, they cannot contend that suit schedule property is not identifiable and it cannot be identified by metes and bounds. The suit schedule property can be identified even if there are buildings. Hence, I answer this issue in the negative.
43. Addl.Issue No.5 :- The defendant No.4 has contended in its written statement at para No.6 that the plaintiffs have not disclosed whether the suit schedule property is the only property available for the alleged partition or there are other properties which are also available for partition. As such, the suit is very vague and liable to be dismissed. The plaintiffs have alleged that they are entitled for ½ share in the suit schedule property. The defendants have not placed any documents to show that the plaintiffs and defendants No.1 to 3 are possessing other joint family properties. The plaintiff No.3 who is examined as P.W.1 has got marked the RTC Extracts of Sy. Nos. 7/3, 7/4 and Sy. No. 1/B Block 14 as Exs.P.37 to P.45. In Ex.P.37 the name of one Venkatappa S/o of Akkimuniyappa is shown in Column No. 9. It is not the name of grand father of plaintiffs No.2 and 3 and defendants No.1 to 3. His name is Venktappa S/o Purukalappa. In Column No.12 of the said RTC, the name of Kariyappa is shown. Further, in Ex.P.38 which is the RTC Extract pertaining to Sy. No. 7/3, the name of Kariyappa is shown in both in Column Nos. 10 and 12/2 and in Column No.10 it is mentioned that the khatha has been made out as per M.R. No. 2/85-86 as per the sale deed. The same is also shown in Exs.P.39 and P.40 RTC Extracts. In Ex.P.41 which is the RTC Extract pertaining to Sy. No. 7/4, the name of one Kempaiah is shown. As such, the said document show that the said property does not belong to plaintiffs and defendants No.1 to 3. In the RTC Extract pertaining to Sy. No.1/B Block 14, the name of Kariyappa is shown column No.9 and 12. In the RTC Extracts marked as Exs.P.42 and P.43, in Column No.10 it is shown that the khatha has been made out as per M.R. No. 2/60-61 and it is also shown that as per sale deed khatha has been made out in the name of Kariyappa. D.W.1 has also got marked RTC Extracts of Sy. Nos. 1/B Block 14 as Exs.P.29 to P.33. As such, the above said documents show that the properties in Sy. No. 7/3 and Sy. No.1 /B Block 14 have been purchased by Kariyappa. No documents are produced by the defendant No.4 Company to show that there are other joint family properties which belonged to the family of plaintiffs and defendants No. 1 to 3. The materials on record the suit schedule property is the only property which is the joint family property of plaintiffs and defendants No.1 to 3 and as such it cannot be held that the suit is filed for partial partition. Though the Counsel for defendant No.4 has relied on a decision reported in (1994) 4 SCC 294 in which in the case of Kenchegowda (since deceased) by legal representatives V/s Siddegowda Alias Motegowda it is held that " suit for partial partition is the joint family properties are no made the subject matter of the suit nor the co sharer impleaded is not maintainable and the decision reported in ILR 1998 KAR 681 in which in the case of Sri. Tukaram V/s Sri. Sambhaji and others it is held that "the suit for partial partition is not maintainable as the inclusion of all the joint family properties is necessary, they are not applicable to the case on hand as this suit is not filed for partial partition. The Counsel also relied on the Judgment passed by 44 th Additional City Civil and Session Judge on 17.03.2020 in O.S. No. 11229/2006. The same will not any way help the defendant No.4 Company. Hence, I answer this point in the negative
44. Issue No.4 :- In view of the above findings on issue Nos. 1 to 3 and Addl. issues No.1 to 5, the plaintiffs are entitled for ½ share in the suit schedule property. Though, the defendant No.4 Company has contended that buildings have been constructed and flats have been sold, the sale deed executed in their favour is null and void as for as the share of the plaintiffs is concerned. As such, the sale deed is not valid in law and the constructions made are also illegal. The share of the plaintiffs can be identified and their share can be demarketed by metes and bounds in the final decree proceedings. Hence, the following is made :-
O R DE R The suit of the plaintiffs is decreed.
The plaintiffs are entitled for partition and separate possession of their ½ share in the suit schedule property by metes and bounds. The sale deed dated 13.06.2001 executed by Smt. Sadamma and defendants No.1 to 3 in favour of defendant No.4 Company is null and void as for as the share of the plaintiffs over the suit schedule property and it is not binding on the share of the plaintiffs.
The parties to the suit shall bear their own costs.
Office is directed to draw
preliminary decree accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then
pronounced by me in the open court on this the 10 th day of February 2021) (Jaishankar) XV Addl.City Civil & Sessions Judge, Bengaluru.
A N N E X U R E WITNESSES EXAMINED FOR THE PLAINTIFFS :-
P.W.1 :- J.C. Rajanna P.W.2 :- Chikkanarasimhaiah
DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:-
Ex.P.1 Genealogical Tree
Ex.P.2 Certified copy of the registered Sale
deed
Exs.P.3 to 12 RTC Extract
Ex.P.13 Original Grant certificate
Ex.P.13(a) Typed copy of the same
Ex.P14 Pavathi Khatha
Ex.P.14(a) Typed Copy
Ex.P.15 Certified copy of the Tahsildar's Order
dated 25.04.1988
Ex.P.15(a) Typed Copy
Ex.P.16 Death Certificate
Ex.P.17 Certified copy of Registered
Agreement of sale dated
16.06.1995
Ex.P.18 Certified copy of the letter
issued by the BDA dated
12.03.2012
Ex.P.19 Certified copy of the
Endorsement dated 19.03.2012
Ex.P.20 Certified copy of the Letter
Ex.P.21 Certified copy of the Akarband
Revision Settlement
Ex.P.22 Copy of Encumbrance
Certificated dated 22.11.2011
Ex.P.23 Certified copy of the Registered
Declaration deed dated
07.09.2004
Ex.P.24 Certified copy of the Letter dated
24.04.2014
Ex.P.25 Certified copy of the Letter dated
31.01.2015
Exs.P.26 to 31 RTC Extracts
Ex.P.32 C.D.
Ex.P.33 Voter ID
Ex.P.34 11th Day Ceremoney Card
Ex.P.35 Aadhar Card of plaintiff No.2
Ex.P.36 Adhar Card of Plaintiff No.3
Ex.P.37 RTC pertaining to Sy. No. 7/3
Ex.P.38 RTC pertaining to Sy. No. 7/3
from the year 1981-82 to 1985-
86
Ex.P.39 Sy. No. 7/3 for the year 1988-89
Ex.P.40 RTC pertaining Sy. No. 7/3 from
the years 1988-89 to 1992-93
Ex.P.41 RTC Extract pertaining to Sy.
No. 7/4
Ex.P.42 Village Form II of Sy. No.1/B
Block 14
Exs.P.43 to 45 RTC pertaining to Sy. No.1/B
Block 14
WITNESSES EXAMINED FOR THE DEFENDANTS:-
D.W.1 :- Keshavamurthy
DOCUMENTS MARKED ON BEHALF OF THE
DEFENDANTS:-
Ex.D.1 Xerox copy of the Sale deed
Ex.D.2 Certified true copy of the Resolution
Ex.D.3 Certified copy of the Conversion
Order dated 23.02.2000
Exs.D.4to D.19 Certified copies of the Conversion order passed by the Deputy Commissioner Exs.D.20 & 21 Certified copy of two Certificate of Registration of Society Ex.D.22 List of Unit Owners residing in Shobha Ultima Project Ex.D.23 Encumbrance Certificate Ex.D.24 Certified copy of the Registered Sale deed dated 13.06.2001 Ex.D.25 RTC pertaining to land in Sy. No. 1B of Jakkuru Plantation Village Exs.D.26 to 28 Encumbrance Certificates Ex.D.29 Certified copy of the RR Extract Exs.D.30 to 33 True copies of four RTC Extracts Ex.D.34 Photographs Ex.D.35 C.D Ex.D.36 Genealogical Tree Ex.D.37 Copy of Resolution Ex.D.38 I.D. Card (Jaishankar) XV Addl.City Civil & Sessions Judge, Bengaluru.