Bangalore District Court
Share In The 'A' Schedule Property. The vs No.6 Appeared Through Separate ... on 20 December, 2021
O.S. No.8083/2007
1
KABC010165442007
IN THE COURT OF THE XXXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
Dated this the 20th day of December, 2021
Present :
Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge,
Bengaluru.
O.S. No.8083/2007
Between:
1. Sri. B.M. Girimadhoji Rao
S/o Late Mannaji Rao,
Hindu, Aged about 54 years,
No.488, 13th Main, 4th Cross,
4Th Block, Nadine Layout,
Bangalore - 560 096.
Since dead by LRs
a) Smt. Shobha
W/o late Girimadhoji Rao
Hindu, aged about 64 years,
b) Sri. Pavan
S/o Late Girimadhoji Rao,
Hindu, aged about 35 years,
c) Smt. Prathima
D/o late Girimadhoji Rao,
Hindu, aged about 32 years,
O.S. No.8083/2007
2
All are now at No.488,
13th Main Road, 4th Block,
Nandini Layout,
Bangalore - 560 096.
2. Smt. Bhavani
D/o Late Mannaji Rao,
W/o Late Lokesh,
Hindu, aged about 51 years,
Residing at No.53, 4th Cross,
Sameerapura, K.G. Nagar,
Chamarajapet,
Bangalore - 560 018.
3. Smt. N. Lakshmi Bai
D/o Late Mannaji Rao,
W/o Sri. Nagaraja Rao,
Hindu, aged about 44 years,
Residing at No.53, 4th Cross,
Sameerapura, K.G. Nagar,
Chamarajapet,
Bangalore - 560 018. .. PLAINTIFFS
(By: Sri. S. Gangadhara Aithal, Advocate)
And
1. Sri. B.M. Ganesh Rao
S/o Late Mannaji Rao,
Hindu, aged about 48 years,
Residing at No.B88, Sameerapura,
1st Cross, K.G. Nagar,
Chamarajapet,
Bangalore - 560 018.
2. Sri. B.M. Ramachandra Rao
S/o Late Mannaji Rao,
Hindu, aged about 42 years,
Residing at No.B88, Sameerapura,
1st Cross, K.G. Nagar,
O.S. No.8083/2007
3
Chamarajapet,
Bangalore - 560 018.
3. Smt. B.M. Indra Bai
D/o late Mannaji Rao
W/o Anantha Rao
Hindu, aged about 35 years,
Residing at No.B88, Sameerapura,
1st Cross, K.G. Nagar,
Chamarajapet,
Bangalore - 560 018.
4. Kumari. Divya
D/o Sri. Nagesh Rao Sindhe,
Hindu, aged about 14 years,
Minor represented by her natural guardian
Sri. Nagesh Rao Sindhe,
Residing at No.21/30, 1st Floor,
1St 'E' Main Road,
Rajendraprasad Road,
Girinagar, Bangalore - 560 085.
(Now having attained majority )
5. Master Ajay
D/o Sri. Nagesh Rao Sindhe,
Hindu, aged about 16 years,
Minor represented by his natural guardian
Sri. Nagesh Rao Sindhe,
Residing at No.21/30, 1st Floor,
1St 'E' Main Road,
Rajendraprasad Road,
Girinagar, Bangalore - 560 085.
(Now having attained majority )
6. The Canara Bank,
K.G. Nagar Branch,
Bangalore. .. DEFENDANTS
(Defendant No.1 : By Sri. Rajeswara P.N., Advocate,
O.S. No.8083/2007
4
Defendant No.2 : Exparte,
Defendant Nos.3 : By Sri. S.N. Madhu., Advocate,
Defendant No.4 : By Sri. Ramesha K.R., Advocate,
Defendant No.5 : By Sri. Girish M.B., Advocate,
Defendant No.6 : By Smt. Latha Shetty., Advocate )
Date of Institution of the suit: 11/10/2007
Nature of the suit : Partition and separate possession
Date of commencement of : 30/11/2010
recording of evidence.
Date on which the judgment : 20.12.2021
was pronounced.
Total Duration Years Months Days
14 02 09
XXXIV Addl. City Civil & Sessions Judge
Bengaluru.
JUDGMENT
This suit under Order VII Rule 1 R/w Section 26 of Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs for partition and separate possession of the suit schedule 'A' and 'B' properties by declaring that the plaintiffs 1 to 3 are entitled for 1/7th share each in the suit 'A' and 'B' schedule properties, for direction to the defendant No.6 to pay 1/7th share each out of the suit schedule 'B' property to the plaintiffs 1 to 3, for court costs etc., and for O.S. No.8083/2007 5 such other relief/reliefs deemed fit to grant in the circumstances of the case.
2. The brief facts of the case of the plaintiffs are as under:
The plaintiff No.1 and defendants No.1 and 2 are the sons and plaintiffs No.2 and 3 and the defendant No.3 are the daughters of Late Mannaji Rao and Smt. Akkamma Bai. Late Mannaji Rao and Smt. Akkamma Bai had two daughters Smt. B.M. Shyamala Bai and Sudha Bai. Smt. B.M. Shyamala Bai died leaving behind her two children, the defendants No.4 and 5. Smt. Sudha Bai died issueless.
Late Mannaji Rao purchased suit schedule 'A' property from one Sri. Nagappa Karanth, under a registered sale deed dated 19.4.1950. Late Mannaji Rao died on 11.1.2007. After his death, the Khata was transferred in the name of Smt. Akkamma Bai.
Smt. Akkamma Bai died on 11.1.2007 leaving behind plaintiffs and the defendants 1 to 5 as her only legal heirs. The plaintiffs and the defendants are in joint possession and enjoyment of the suit schedule 'A' property even to this date. The plaintiffs and the defendants 1 to 3 are entitled to 1/7th share each and defendants 4 and 5 jointly entitled to 1/7th share in the 'A' schedule property.
O.S. No.8083/2007 6 After the death of Smt. Akkamma Bai, the plaintiffs demanded with the defendants 1 to 3 to have a partition of the 'A' schedule property by metes and bounds. In spite of several demands and requests the defendants 1 to 3 have not come forward to give plaintiffs share in the 'A' schedule property. The defendants 1 to 3 have taken certain signatures of plaintiffs 2 and 3 to blank papers and also on some stamp papers stating that the same is required for the purpose of change of Khatha and for submitting the same before the Corporation of the City of Bangalore.
Late Akkamma Bai had kept 'B' schedule property i.e., a sum of Rs.1,73,000/ in her Savings Bank account No.789101 4022 and a sum of Rs.15,500/ in her R.D. account No.789181 703 with the 6th defendant. Plaintiffs 1 to 3 and the defendants 1 to 3 are entitled to 1/7th share each and defendants 4 and 5 jointly entitled to 1/7th share in the said amount. The defendants 1 to 3 have refused to share the said amount also.
3. After the institution of the suit, suit summons were issued and served to the defendants. Defendant No.1, 3, 4, 5 and defendant No.6 appeared through separate counsels. Defendant No.1, 3 to 5 together filed their written statement. Defendant No.6 O.S. No.8083/2007 7 filed its written statement. After attaining majority defendant No.4 has filed her written statement. In spite of service of summons to defendant No.2, he did not appear. Hence, defendants No.2 has been placed ex parte.
4. a) The brief contentions of the written statement of the defendants No.1, 3 to 5 are as under:
The 'A' schedule property was purchased by Mannaji Rao. Mannaji Rao had alienated the 'A' schedule property in favour of one Nanjappa. That on 21.3.1966 said Nanjappa sold the 'A' schedule property in favour of Smt. Akkamma Bai. Smt. Akkamma Bai was carrying on milk vending business, she had also tethered cows and buffaloes in her house. The 'A' schedule property was purchased from out of self earnings and self acquisitions of Akkamma Bai as her separate property.
Smt. Akkamma Bai gave birth to Defendants 1 to 3 and Smt.Shyamala Bai and Lakshmi Bai. Akkamma Bai had to maintain the family. Mannaji Rao was not responsible towards the family and Akkamma Bai had to borrow huge sums of money. Smt. Akkamma Bai, had mortgaged the property in order to discharge the loan liability. Smt. Akkamma Bai also borrowed O.S. No.8083/2007 8 loans from Sri Satyanarayana Setty on 7.6.1973. Plaintiffs 1 and 2 never cooperated and they neither objected to mortgaging the properties and borrowing loans.
Immediately after the death of Mannaji Rao in the year 1976, the 1st plaintiff along with the 2 nd Plaintiff, abandoned the entire family of Smt. Akkamma Bai, disclaimed Smt. Akkamma Bai as their mother and also disclaimed Plaintiff No.3 and defendants as their brothers and sisters, consequent upon their disclaiming relationship, they have extinguished their rights pertaining to the 'A' schedule property. Plaintiffs 1 and 2 had extinguished their rights by the ousterous possession of Akkamma Bai and her children.
There is no amount of Rs.1,73,000/ with interest in the Savings Bank account No.7891014022 of Smt. Akkamma Bai. The said amount is not available.
The impleadment of the 6th defendant is a misjoinder of the party.
b) The brief contentions of the written statement of the defendant No.4 are as under:
Smt. Durga Bai is the 1st wife of late Mannaji Rao. Plaintiffs O.S. No.8083/2007 9 No.1 and 2 are son and daughter of Smt. Durga Bai and Mannaji Rao. After the death of Durga Bai, Sri. Mannaji Rao had married Akkamma Bai. Plaintiffs No.3 and Defendant Nos.1 to 3 and Smt. B.M. Shyamala Bai i.e., mother of Defendant Nos.4 and 5 and deceased Smt. Sudha Bai are the children of Smt. Akkamma Bai and Mannaji Rao. Smt. Akkamma Bai had purchased the 'A' schedule property from Sri. M.Nanjappa on 21/3/1966 under the registered sale deed. Sri. M.Nanjappa had purchased the said property from Mannaji Rao on 8/12/1960 under a registered sale deed. Sri. Mannaji Rao died in the year 1976 and Smt. Akkamma Bai died in the year 2007. Smt. Akkamma Bai had sufficient income from the milk vending business. Plaintiff Nos.1 and 2 are not children of Smt. Akkamma Bai, they have no right to seek for partition and separate possession.
c) The brief contentions of the written statement of the defendant No.6 are as under:
A sum of Rs.1,73,000/ and Rs.15,500/ were kept in Canara Bank, K.G. Nagar Branch, by the late Akkamma Bai. In the Nomination Slip, Mrs. Akkamma Bai had nominated Mrs. B.M. Indira, her daughter as her nominee. After the death of Mrs. O.S. No.8083/2007 10 Akkamma Bai, her nominee had filled the claim form and obtained the amount deposited in the Bank. The nominee also signed the acknowledgement form for having received the amount and further discharged the bank from all liabilities and obligations of any persons claiming the amount.
5. My predecessor has framed the following issues for consideration.
ISSUES
1. Whether the Plaintiffs prove the relationship pleaded by them?
2. Whether the Plaintiffs prove the existence of suit properties?
3. Whether the plaintiffs prove that suit properties are the joint family properties of plaintiffs and defendants 1 to 5?
4. Whether the plaintiffs are entitled for a share in the suit properties?
5. Whether defendant Nos.1 to 5 prove that suit A schedule property is self acquired property of Smt. Akkammabai as pleaded by them?
O.S. No.8083/2007 11
6. Whether the suit is bad for non joinder of necessary parties?
7. Whether the suit is barred by limitation?
8. What order?
6. In order to prove the case, the plaintiff No.1 examined himself as PW.1 and marked 15 documents as Ex.P1 to Ex.P15. The typed copies of Ex.P6 to Ex.P9 are marked as Ex.P6(a) to Ex.P9(a). Shri.Sarvesh, Senior Manager of defendants No.6 examined himself as DW.1 and marked 3 documents as Ex.D1 to Ex.D3. In order to disprove the case of the plaintiffs and to prove their case, defendants No.1 examined himself as DW.2 and marked 22 documents as Ex.D4 to Ex.D25.
7. Heard the arguments of the learned counsel for the plaintiffs and counsel for the defendant No.1.
8. My findings on the above issues are as follows: Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: In the Affirmative Issue No.4: In the Affirmative O.S. No.8083/2007 12 Issue No.5: Does not survive for consideration Issue No.6: In the Negative Issue No.7: In the Negative Issue No.8: As per final order for the following:
REASONS
9. Issue No.1: Plaintiffs have pleaded in their plaint at para No.2 that plaintiff No.1 and defendants No.1 and 2 are the sons and plaintiffs No.2 and 3 and the defendant No.3 are the daughters of Late Mannaji Rao and Smt. Akkamma Bai, Late Mannaji Rao and Smt. Akkamma Bai had two daughters Smt. B.M. Shyamala Bai and Sudha Bai., Smt. B.M. Shyamala Bai died leaving behind her two children, the defendants No.4 and 5 and Smt. Sudha Bai died issue less.
Defendant Nos.1, 3 to 5 in their written statement at para No.2, 19(a) and (c) and 19(2) have contended that Akkamma Bai is not the mother of plaintiffs No.1 and 2, plaintiffs are no way related to Mannaji Rao and Smt.Akkamma Bai and Smt. Akkamma Bai gave birth to defendants No.1 to 3 and Smt.Shyamala Bai and Lakshmi Bai.
Defendant No.4 in his written statement at para No.8 and O.S. No.8083/2007 13 Para No.13 has contended that Smt. Durga Bai is the 1 st wife of late Mannaji Rao, Plaintiffs No.1 and 2 are son and daughter of Smt. Durga Bai and Mannaji Rao, after the death of Durga Bai, Sri. Mannaji Rao had married Akkamma Bai, Plaintiff No.3 and defendant Nos.1 to 3 and Smt. B.M. Shyamala Bai i.e., mother of defendant Nos.4 and 5 and deceased Smt. Sudha Bai are the children of Smt. Akkamma Bai and Mannaji Rao, Plaintiff Nos.1 and 2 are not children of Smt. Akkamma Bai and they have no right to seek for partition and separate possession.
Defendant Nos.1, 3 to 5 in their written statement at para No.9 further contended that immediately after the death of Mannaji Rao in the year 1976, the 1 st plaintiff along with the 2nd Plaintiff, abandoned the entire family of Smt. Akkamma Bai, disclaimed Smt. Akkamma Bai as their mother and also disclaimed Plaintiff No.3 and defendants as their brothers and sisters and consequent upon their disclaiming relationship, they have extinguished their rights pertaining to the 'A' schedule property.
By reading the above contention of defendant Nos.1, 3 to 5 at para No.9 of their written statement, it is clear that defendant O.S. No.8083/2007 14 Nos.1, 3 to 5 are admitting the relationship of plaintiffs with them as pleaded by plaintiffs.
Plaintiff No.1, who has been examined himself as PW.1 in his examination in chief evidence affidavit filed as per order XVIII Rule 4 of CPC has reiterated the plaint averments.
Plaintiffs have produced Ex.P11, Cumulative Record pertaining to 1st Plaintiff. In Ex.P11, at Part I, General Information at Column No.5(A), father's name, the name of Mannoji Rao, at Column No.5(B), mother's name, the name of Akkamma Bai and at column No.14, number of brothers, 2, number of sisters, 3 are mentioned. Ex.P13 is true copy issued by Sarvothama High School, Bharatiya Samskriti Vidyapith, Bangalore in respect of 2 nd Plaintiff. In Ex.P13 at Column No.3, the name of father is mentioned as Mannoji Rao.
In the crossexamination of PW1, Counsel for defendants No.1, 3 and 5 and Counsel for defendant No.4 have suggested as under:
"It is true to suggest that my father wedded my mother Akkamma as his second wife subsequent to the death of his first wife. The elder wife was Lakshmibai."
(Bold and underline is by me) O.S. No.8083/2007 15 "It is true to suggest that in Ex.P11 the name of my mother is shown as Smt. Akkamma Bai (the counsel for the defendant No.4 wants the said name in Ex.P11 to be marked separately and hence marked). The same is marked as Ex.P11(a)."
The deposition of PW1 as to Ex.P11 reads as under:
"I have studied SSLC in Model High School, Chamarajpet. It is true that the Headmistress of that school is the head of that institution. It is not true to suggest that in cumulative record, normally, the name of the student and the father will be mentioned. If suggested why the cumulative record produced by me is signed by Principal, I say that, the school has issued me that certificate when I was 15 years old. It is not true to suggest that the cumulative record produced by me is created by me for the purpose of this suit."
"It is not true that Ex.P11(a) marked in Ex.P11 is written by different ink. It is not true that Ex.P11(a) is recently written. It is not true that Ex.P11(a) is written in Ex.P11 by colluding myself with school authorities."
"It is true that Ex.P11 and volume two produced by school authorities are produced by the same school. It is not true that the name of Akkammabai in Ex.P11(a) is not written by the same person who has written other contents of Ex.P11. It is not true that Ex.P11(a) is O.S. No.8083/2007 16 created by inserting the name of my Mother in it as Akkammabai."
Defendant No.1, who has been examined as DW2 in his crossexamination has answered as under:
"ನಮಮ ತತದದಯಯದ ಮಮತ ಮನದನನಜ ರಯವವರವರಗದ ಒಬಬಳದನ ಹದತಡತ ಇದದಳಳ. ಅವರಗದ ಇನದನನಬಬಳಳ ಹದತಡತ ಇದದ ವಚಯರ ನನಗದ ಗದನತತಲಲ."
"ನನನ ತತದದಗದ ಇನದನನಬಬ ಹದತಡತ ಇದದರಳ ಅಥವಯ ಇಲಲ ಎನಳನವ ಬಗದಗ ನನಗದ ಗದನತತಲಲ."
"ಗರಮಯದದನನಜ ರಯವವ ಮತಳತ ಭವಯನರಯವವರವರಳ
ಮನದನನಜ ರಯವವವರ ಮಕಕಳಳ."
"ವಯದ-1 ಗರಮಯದದನನಜ ರಯವವಹಯಗನ ವಯದ 2 ಶಶನಮತ
ಭವಯನ ಮಮತ ಮನದನನಜ ರಯವವವರ ಮಕಕಳಳ ಎತದರದ
ಸರಯಲಲ."
It is pertinent to note the suggestion put to PW1 in his cross examination, which reads as under:
"It is true to suggest that my father wedded my mother Akkamma as his second wife subsequent to the death of his first wife. The elder wife was Lakshmibai.
It is not true to suggest that myself and Bhavani are the issues of Lakshmibai.
It is not true to suggest that I am the son of Munnoji Rao through Durga Bai."
O.S. No.8083/2007 17 Counsel for Defendants 1, 3 to 5 and counsel for defendant No.4 failed to get any admission or favourable answer from PW1 in his crossexamination by which the contents of Ex.P11 i.e., plaintiff No.1 is the son of Mannoji Rao and Akkamma Bai cannot be believed.
The Counsel for defendant No.1 has furnished the following decision regarding this issue.
1) MANU/SC/0188/1959 (Dolgobinda Paricha vs. Nimai Charan Misra and Others).
In this decision their lordships of Hon'ble Supreme Court of India at paragraph No.8 and 9 have opined as under:
"S.50. When the court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact."
"It appears to us that the essential requirements of the section are (1) there must be a case where the court has to form an opinion as to the relationship of one person to another;(2) in such a case, the opinion expressed by conduct as to the O.S. No.8083/2007 18 existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who was a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfill the condition laid down in the latter part of the section. If the person fulfills that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than a mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the " belief " or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may therefore be proved."
Defendant Nos.1, 3 to 5 admitted that the plaintiff No.3 is the daughter of Mannoji Rao and Akkamma Bai. Defendant Nos.1 and 3 have admitted that plaintiff No.3 is their sister born to Mannoji Rao and Akkamma Bai. It is pertinent to note that Plaintiff No.3 has joined plaintiff Nos.1 and 2 to institute this suit against her brothers and sister. Plaintiff No.3 has joined plaintiff O.S. No.8083/2007 19 Nos.1 and 2 asserting that plaintiff Nos.1 and 2 are also children of Mannoji Rao and Akkamma Bai.
In view of the discussion I made above I come to an opinion that by preponderance of probabilities plaintiffs have proved that they are the children of Mannoji Rao and Akkamma Bai. In view of the discussion I made above, I answer Issue No.1 in Affirmative.
10. Issue No.2 to 5: As these issues are interrelated and overlapping, these issues are taken together for discussion.
The contention of defendant Nos.1, 3 to 5 is that suit schedule A property was purchased by Akkamma Bai by her self earnings and suit schedule property was her selfacquired property. The contention of defendant Nos.1, 3 to 5 is that suit schedule A property was purchased by Akkamma Bai by her self earnings and suit schedule property was her selfacquired property. Ex.P2, Death Certificate reveals that Akkamma Bai died on 11.1.2007. The case of the defendant Nos.1 and 3 to 5 is not that Akkamma Bai made a testamentary disposition in respect of suit schedule A property. Akkamma Bai died intestate. As plaintiff No.1 and 2 are also children of deceased Mannaji Rao and O.S. No.8083/2007 20 Smt.Akkamma Bai, I am of the opinion that the question of discussing whether suit schedule A property is self acquired property of deceased Smt.Akkamma Bai does not arise. Section 15(1) (a) and (b) of Hindu Succession Act, 1956 reads as under:
"15. General rules of succession in the case of female Hindus. (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16.
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;" ccession and manner of distribution among heirs of a female Hindu. The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely, Rule 1 - Among the heirs specified in subsection (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.
O.S. No.8083/2007 21 Defendant Nos.1, 3 and 5 in their written statement at para No.14 have contended that amount i.e. Suit schedule B amount was utilised by late Akkamma Bai to discharge certain liabilities pertaining to the property and personal liabilities which have been discharged by the person nominated by her.
Counsel for Defendant Nos.1, 3 and 5 in the evidence of PW1 neither questioned nor suggested anything about what they have contended in their written statement at para No.14.
Sri. Sarvesh K, Senior Manager of defendant No.6, Bank in his examinationinchief evidence Affidavit has reiterated the written statement contentions. It is pertinent to note that defendant No.3 has not entered the witness box and deposed about what defendant Nos.1, 3 and 5 have contended in their written statement at para No.14.
Ex.D3, is Receipt obtained from nominee i.e., defendant No.3 by defendant No.6, Bank on 11.4.2007 in respect of suit schedule B amount.
Plaintiffs at prayer (a) of the Plaint sought for direction against defendant No.6 to pay 1/7th share each out of suit schedule 'B' amount. But already defendant No.6 Bank has O.S. No.8083/2007 22 released the amount mentioned in Ex.D3 to Defendant No.3 on 11.4.2007, which is prior to the institution of this suit on 11.10.2007. Hence, the suit filed by plaintiffs against defendant No.6 in respect of suit schedule 'B' amount for direction became infructuous. Defendant No.3, being a nominee has to keep the suit schedule 'B' amount as a Trustee and ultimately the amount shall have to be distributed as per the succession to LRs of deceased Smt. Akkamma Bai.
In view of the discussion I made above I come to an opinion that the plaintiffs are able to prove Issue No.2 to 4. Hence, I answer Issue No.2 to 4 in affirmative and Issue No.5 as does not survive for consideration.
11. Issue No.6 : Defendant No.1, 3 to 5 in their written statement have taken contention that the suit of the plaintiffs is bad for non joinder of proper and necessary parties and the impleadment of the 6th defendant is a misjoinder of party. It is pertinent to note that, defendant No.1, 3 to 5 have not specifically stated how the suit of the plaintiffs is bad for non joinder of proper and necessary parties. Plaintiffs at prayer (a) of the plaint sought O.S. No.8083/2007 23 for direction against defendant No.6 to pay 1/7th share each out of suit schedule 'B' amount. Hence, I answer Issue No.6 in Negative.
12. Issue No.7 : Defendant No.1, 3 to 5 in their written statement have taken contention that the suit of the plaintiffs is barred by limitation. But, defendant No.1, 3 to 5 have not specifically stated how the suit of the plaintiffs is barred by limitation. Akkamma Bai died on 11/01/2007. Defendant No.3 received Suit schedule B amount on 11/04/2007. Plaintiffs filed this suit on 11/10/2007. Hence, I answer Issue No.7 in Negative.
13. Issue No.8 : The Counsel for defendant No.1 has relied on the following decisions in support of his case:
1) (2011) 9 Supreme Court Cases 451 [Marabasappa (Dead) by LRs and others vs. Ningappa (Dead) by LRs and Others)] This decision is in respect of Section 14 of the Hindu Succession Act, which mandates that any property of a female Hindu is her absolute property. In this case, Plaintiffs have proved that they are the children of Smt. Akkamma Bai. Hence, this court has answered Issue No.5, whether suit schedule A O.S. No.8083/2007 24 property is selfacquired property of Smt. Akkamma Bai, as 'Does not survive for consideration'.
2) MANU/TN/0260/1999 (Vembu Ammal vs. Pattuammal) This decision is in respect of whether properties of the said decision were purchased out of the joint family income. As already this court has come to an opinion that discussing whether suit schedule A property is selfacquired property of Smt. Akkamma Bai, as 'Does not survive for consideration', I am of the opinion that this decision no way helps defendant No.1.
3) (1999) 3 SCC 573 (Vidhyadhar vs. Manikrao and another) This decision is in respect of opinion that where a party to the suit does not appear in the witness box and states his own case and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct. In this case, though Plaintiff No.3 has not examined herself, it is pertinent to note that defendant No.1, 3 to 5 themselves have admitted that Plaintiff No.3 is the daughter of Mannoji Rao and Smt. Akkamma Bai. Plaintiff No.1 by his O.S. No.8083/2007 25 evidence has proved Plaintiffs are also children of Mannoji Rao and Smt. Akkamma Bai.
4) ILR 2001 KAR 3988 (B.S. Malleshappa vs. Koratagigere B. Shivalingappa and Others) This decision is in respect of dismissal of the suit if the Plaintiff has not paid the court fee after it is proved that Plaintiff is not in joint possession of the suit property. But in this case, Plaintiffs being the children of Mannoji Rao and Smt. Akkamma Bai, it is deemed to be they are in joint possession and enjoyment of suit properties.
In view of the findings, I arrived to issue No.1 to 7 , I proceed to pass the following : ORDER The suit under Order VII Rule 1 r/w Section 26 of Code of Civil Procedure, 1908 (CPC) filed by the plaintiff is decreed with costs.
It is declared that LRs of Plaintiff No.1(a) together, Plaintiff No.2, Plaintiff No.3, Defendant No,1, Defendant No.2, Defendant No.3 and Defendant Nos.4 and 5 together are entitled for 1/7th share each in the suit 'A' and 'B' schedule properties.
O.S. No.8083/2007 26 Draw Preliminary decree accordingly.
(Dictated to the Judgment Writer and also directly on computer, after transcribed and typed by him, corrected, signed and pronounced in the open court on this the 20th day of December, 2021) (G. RAGHAVENDRA) XXXIV Addl. City Civil & Sessions Judge Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW1: Sri B.M. Girimadhoji Rao.
LIST OF EXHIBITS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P1: True copy of Registered Sale Deed dated 18.4.1950 Ex.P2: Death Certificate of Akkamma Bai.
Ex.P3: Encumbrance Certificate.
Ex.P4: Encumbrance Certificate.
Ex.P5: Khata Extract.
Ex.P6: True copy of Registered Sale Deed dated 8.12.1960
Ex.P6(a): Typed copy of Ex.P6
Ex.P7: True copy of Registered agreement of conditional Sale
dated 8.12.1960
Ex.P7(a): Typed copy of Ex.P7
Ex.P8: True copy of Registered Sale Deed dated 20.3.1966
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Ex.P8(a): Typed copy of Ex.P8.
Ex.P9: True copy of Registered cancellation of agreement of
conditional Sale dated 21.3.1966
Ex.P9(a): Typed copy of Ex.P9
Ex.P10: True copy of Registered Equitable Mortgage deed dated
24.9.1998
Ex.P11: Cumulative Record of plaintiff No.1
Ex.P12: Encumbrance Certificate
Ex.P13: Transfer Certificate of plaintiff No.2
Ex.P14: S.S.L.C. Marks Card of plaintiff No.3
Ex.P15: Transfer Certificate of plaintiff No.3
LIST OF WITNESS EXAMINED ON BEHALF OF DEFENDANT No.6:
DW1: Sri. Sarvesha K., LIST OF EXHIBITS MARKED ON BEHALF OF DEFENDANT No.6:
Ex.D1: Savings Account Pass Book of Smt.Akkamma Bai Ex.D2: Claim Format submitted by defendant No.3 Ex.D3: Receipt obtained from defendant No.3 LIST OF WITNESS EXAMINED ON BEHALF OF DEFENDANT No.1:
DW2: B.M. Ganesh Rao.
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LIST OF EXHIBITS MARKED ON BEHALF OF DEFENDANT No.1.:
Ex.D4: Genealogy. Ex.D5: True copy of Registered Sale Deed dated 18.4.1950 Ex.D6: True copy of Registered Sale Deed dated 8.12.1960 Ex.D7: True copy of Registered Sale Deed dated 20.3.1966 Ex.D8: Encumbrance Certificate. Ex.D9: Death Certificate of Mannoji Rao. Ex.D10: Encumbrance Certificate.
Ex.D11: Cumulative Record of defendant No.1/DW2. Ex.D12: Encumbrance Certificate Ex.D13: Carbon copy of Tax paid receipt for the period 200607. Ex.D14: Property Tax receipt dated 21.4.2009. Ex.D15: Carbon copy of Tax paid receipt dated 31.8.2009 Ex.D16: Carbon copy of Tax paid receipt dated 27.4.2010. Ex.D17: Property Tax receipt dated 28.4.2011. Ex.D18: Acknowledgement for receiving Tax dated 18.5.2009. Ex.D19: Property Tax receipt dated 8.5.2014. Ex.D20: Property Tax receipt dated 17.6.2015. Ex.D21: Property Tax receipt dated 27.6.2016. Ex.D22: Property Tax receipt dated 7.4.2018. Ex.D23: Service Book of Plaintiff No.1, Girimadhoji Rao. Ex.D24: Volume 2, Register of Transfer Certificate Ex.D25: Volume 2, Register of School Admission XXXIV Addl. City Civil & Sessions Judge Bengaluru.