Bangalore District Court
Sri. K. Shankar vs Sri. N. Krishna Reddy on 23 March, 2022
KABC010010182013
IN THE COURT OF XV ADDITONAL CITY CIVIL &
SESSIONS: JUDGE AT BENGALURU (CCH.NO.3)
Dated this 23 rd day of March 2022
O.S. No. 9369/2013
Present :- Sri. S.R.Dindalkoppa, B.Sc, LLB(Spl)
XV Additional City Civil & Sessions Judge,
Bengaluru.
Plaintiff's :- Sri. K. Shankar
Aged about 35 years,
S/o No. Krishna Reddy,
Residing at No. ,
Opp : Church,
Chowdadenahalli,
Dommmasandra,
Baganlore District.
(Rep. By E.R.P., Advocate)
V/s
Defendant's :- 1. Sri. N. Krishna Reddy,
S/o late Narasimhaiah,
Aged about 58 years,
Residing at No.86,
Near Church,
Tigalachowdenahalli,
Dommasandra,
Sarjapura Hobli,
Anekal Taluk,
Bangalore Rural District.
(Defendant No.1 died his legal heirs are
already on record. Amended as per order
dated 05.02.2021.)2. Smt. Sarojamma,
W/o N. Krishna Reddy,
Aged about 55 years,
Residing at No.86,
Near Church,
Tigalachowdenahalli,
Dommasandra,
Sarjapura hobli,
Anekal Taluk,
Bangalore Rural District.
(Rep. By C.V.V., Advocate)
3. Smt. Kavitha
D/o. Krishna Reddy,
Aged about 35 years,
Residing at No.914,
9th Cross, H.S.R. Layout,
1st Stage, Bangalore-560102.
(Rep. By R.L., Advocate)
Date of Institution of the suit:
20.12.2013
Nature of the Suit (suit for
pronote, Suit for declaration
and possession, Suit for Partition Suit
injunction, etc.):
Date of the commencement of
recording of the Evidence: 06.09.2016
Date on which the Judgment
was pronounced: 23.03.2022
Total duration: Year/s Month/s Day/s
08 03 03
JUDGMENT
The plaintiff filed this suit against the defendants for seeking partition and separate possession of the suit schedule property.
2. The brief averments of the plaint are as hereunder:-
It is the contention of the plaintiff that plaintiff is the son of defendant No.1. The defendant No.2 is the wife of defendant No.1. The defendant No.3 is the daughter of defendant Nos.1 and 2. The plaintiff and defendants constitute Joint Hindu Family. But, the family owns the properties of item Nos.1 to 3 as described in the schedule.
3. The plaintiff further contend that item No.1 of the schedule property stands in the name of defendant No.2. The item No.2 stands in the name of members of the erstwhile joint family of defendant No.1 and his brothers. The item No.3 stands in the name of defendant No.1. Though, the item No.3 measuring 3.5 guntas having a Revenue Survey number. But, it is used as non-agricultural property. In which there are shops and residential houses. The plaintiff further contend that though the shops and residential houses constructed in item No.3 of the property, there is no sanction plan in respect of the constructions. The said property leased out to tenants and also being used for the residential purposes of the plaintiff and defendant Nos.1 and 2. All the properties are enjoyed by the members of the joint family and they are in joint possession of the same. This defendant further contend that defendant No.3 has no right whatsoever over the same.
4. This plaintiff further contend that plaintiff and defendant Nos.1 and 2 are not pulling on well in the joint family. The defendant No.3 married and she alone residing at the address mentioned in the cause title. Since from one year defendant No.3 interfering the affairs of the joint family and she created bitterness between the plaintiff and defendant Nos.1 and 2.
5. It is further contend that defendant No.1 leading a way-ward life and squandering the rents collected from the joint family properties. The defendant No.3 has own over the defendant No.1 for obvious ulterior motives. This fact totally ruined the affairs of the family. The plaintiff came to know that defendant No.3 has obtained a Gift Deed from defendant No.1 under a registered Gift deed dated 06.04.2013. The said Gift deed is sham and colorable document. It does not confer any right, title and interest over the suit item No.3 in favour of defendant No.3. The defendant No.3 by taking advantage of the supervening circumstances in the family after creating a rift between the plaintiff and defendant No.1. There were complaints and counter complaints are pending before the jurisdictional police. But, the police have not taken any action for the reasons best known to them. The defendant No.1 has no power for disposal of the suit schedule property and the gift deed dated 06.04.2013 executed in favour of defendant No.3 is not in accordance with law. The defendant No.3 is making hectic efforts to obtain the change of khatha in respect of item No.3 with a view to deprive the valuable rights of the plaintiff over the suit properties. The defendant no.3 is intending to dispossess the plaintiff over the suit item No.3 of the property. The defendant No.3 threatening the plaintiff for the past 10 days. Even she hired rowdies to evict the plaintiff. If the plaintiff dispossess during the pendency of the suit, he will be left with no alternative whatsoever and the plaintiff, his wife and child will be on the streets.
6. The plaintiff further contend that item No.2 was purchased in the name of defendant No.2. In order to purchase the property the funds were supplied by plaintiff and defendant No.1. The said property is let out to tenants and is fetching rental income which is being enjoyed by the members of the joint family. However, for the past 6 months defendant Nos.1 and 3 by colluding with each other excluding the plaintiff and defendant No.2 from the rental income. The said property is divisible between the parties. The item No.1 of the property is standing in the joint names of defendant No.1 and his brother. The final decree in respect of the said property is pending for decision in FDP No.83/2003. The defendant No.1 along with plaintiff is entitle equal share. Hence, plaintiff filed the suit for seeking partition in ½ share in the suit schedule property along with mesne profits.
7. On the contrary, defendant Nos.1 and 3 filed joint written statement by denying the contention of plaintiffs. These defendants apart from denial contend that the plaintiff suppressed the material facts and not approached with clean hands. These defendants contend that the suit schedule properties are not the joint family properties as alleged by the plaintiff. The item Nos.1 to 3 properties are self acquired properties of the defendants.
8. These defendants further contend that the defendant No.1 lost his father when he was aged 12 years. He persuaded his education up to SSLC. But, he could not pass. He worked as a ordinary coolie to assist the mason in building construction. He married in the year 1976. Thereafter, he worked as a Kerosene Distributor. He also worked as daily wages in MICO Factory for shifting of machines. The plaintiff born to the defendant No.1 on 04.06.1980. Thereafter, the defendant No.1 by riding the Auto purchased two Autos. One auto he was driving and another leased to another person. Hence, he was not depending upon any family members. Most of the time he used to remain and live with his family at construction sites attending his coolie work. During that period the defendant come across certain people who entrusted him to sell their landed properties around the area. As such, he earned the commission out of the business. The amount earned by him was invested to purchase item No.1 of the suit schedule property in the name of his wife the defendant No.2. He also sold 10 sites at Konanakunte belonging to one Shamanna. He gave one site as a commission to the defendant No.1, out of this transaction the defendant No.1 has made some money.
9. Further, out of the amount saved for a period of time he invested to purchase item No.3 of the suit schedule property and he also constructed house in item No.3 of the property. These defendants further contend that the defendant No.3 his daughter deserted by her husband Srinivasa Reddy as he has no means of livelihood. This defendant out of sympathy, love and affection gifted the item No.3 of the schedule property to her under Gift Deed dated 06.04.2013. She also accepted the Gift and accordingly she is in possession and enjoyment of the same. Since item Nos.1 and 3 are the self acquired property of this defendant in which plaintiff has no right, interest or whatsoever. The item No.2 of the schedule property is said to be the property of one Smt. Akkayamma who is said to be the sister of Narasimhaiah, the father of the defendant No.1. When Akkayamma died intestate without children, the children of Narasimhaiah born to his first wife Doddathayamma filed a suit for partition of item No.2 of the schedule property in O.S. No.273/1987. This defendant is also party in the said suit. After disposal of the said suit in RFA No. 1566/2003 confirming 1/7th share to the plaintiff and defendants in the said case. This defendant No.1 is also one of the party to the said suit. The FDP proceedings in respect of partition suit is still pending. This defendant is also entitle for 1/7th share in the said proceedings.
10. This defendant further contend that, out of his hard working he earned the property and maintain the family. The plaintiff when failed in SSLC he could not persuade his education. When the plaintiff is jobless this defendant provided an Autorickshaw and he is earning. But, the plaintiff was not looking after the defendant. He always use to quarrel and terrorise his own parents on one or the other plea. The plaintiff used to abuse the tenements in item No.3 of the schedule property. Being unable to tolerate his onslaught the aged parents are living away from him. Now the plaintiff has filed this false frivolous suit against the defendant. Hence, from all these aspects the defendants prayed to dismiss the suit.
11. The defendant No.2 also filed written statement by denying the contention of plaintiff. Apart from denial, this defendant contend that item No.3 of the property standing in the name of defendant No.1 measuring 3.5 guntas. She also admits that their shop and residential house in the said properties. She admitted the contention of plaintiff with respect to item No.3 of the property. She also contend that defendant No.3 has no right over the said property. She filed the written statement in support of the contention of the plaintiff.
12. She further contend that item No.1 of the property is the self acquired property of defendant No.2. Who acquired the same from one H. Narayana Reddy in pursuance of agreement of sale. Subsequently, the said Narayana Reddy failed to execute the sale deed. Then the defendant No.2 filed suit in O.S. No.10282/1996 before the Hon'ble Court. The said suit came to decreed in her favour in pursuance of the compromise between them. As per the compromise decree dated 02.04.1996 Court has executed a registered sale deed in respect of item No.1 of the suit schedule property on 10.09.1997. Hence, item No.1 property is her self acquired property in which plaintiffs and defendant Nos.1 and 3 have no manner of right, title or possession.
13. It is further contend that she has already initiated the proceedings to collect the rents from the tenants. She also denied the allegation made against defendant Nos.1 and 3 by the plaintiff. The item No.2 of the property is standing in the joint name of defendant No.1 and his brother which is pending in FDP No.83/03 are all denied. Hence, from all these aspects this defendant No.2 prays to dismiss the suit of the plaintiff.
14. On the basis of the above facts, following issues were framed by my predecessor in office:-
1. Whether plaintiff proves that suit schedule properties are joint family properties of plaintiff and defendants ?
2. Whether defendants No.1 and 3 prove that suit item Nos.1 and 3 are self acquired properties of defendant No.1 ?
3. Whether defendant Nos.1 to 3 further proves that plaintiff is entitle for partition and separate possession of his share in suit item No.2 and not in suit item No.1 and 3, as contended in their written statement ?
4. Whether plaintiff further proves that he is entitle for partition and separate possession of half share in the suit properties ?
5. What order ?
15. In order to prove their contention, the plaintiff examined as P.W.1 and got marked 14 documents as Exs.P.1 to P.14 and closed his side. On the contrary, defendant No.3 examined as D.W.1 and she got marked documents as Exs.D.1 to D.6 and closed her side. Further, defendant No.1 also got marked documents as per Exs.D.13 to D.115. The defendant No.1 examined as D.W.2. The defendant No.2 examined as D.W.3 and got marked documents as Exs.D.8 to D.12. Ex.D.7 marked in the cross examination of D.W.2.
16. Heard the arguments of both sides and perused the materials on record, I answer the above points as here under :-
Issue No.1 :- In the Negative
Issue No.2 :- In the Affirmative
Issue No.3 :- In the Affirmative
Issue No.4 :- In the Negative
Issue No.5 :- As per final order
REASONS
17. Issue No.1 and 2 :- Since these two issues are required
common discussion. Hence, these two issues are taken together for common adjudication in order to avoid repetition. The case of the plaintiff is for seeking partition of half share in the suit schedule properties item Nos.1 to 3. When the defendants admitted that the item No.2 of the property is joint family property and disputing item Nos.1 and 3 of the schedule properties. According to the defendant Nos.1 and 3 the item No.3 property is the self acquired property of defendant No.1. He gifted the same to his daughter defendant No.3. As such, the said property is absolute property of defendant No.3. Whereas defendant No.2 contend that the item No.1 property is the self property of defendant No.2. It is purchased in the name of defendant No.2. Hence, she is absolute owner of the said item No.2 of the property.
18. Considering these rival contentions of both the parties. It is the plaintiff who approached the Court for seeking relief against defendants. Hence, it is the duty of plaintiff to establish that the suit schedule properties are the joint family properties of both plaintiff and defendants.
19. The plaintiff in order to establish his contention examined himself as P.W.1 and got marked several documents. First we have to see the documents produced by the plaintiff.
20. Ex.P.1 is the sale deed dated 08.06.2000. As per sale deed defendant No.1 purchased the property i.e., item No.3. As per the recital of the document, it shows that it is purchased by defendant No.1 N. Krishnareddy. The sale consideration paid is Rs.80,000/-. Ex.P.2 is the Encumbrance certificate for the period from 01.04.2011 to 26.12.2013 which shows the said property transferred to K. Kavitha D/o N. Krishnareddy on 06.04.2013 on the basis of Gift deed executed by defendant No.1. Ex.P.3 Ration Card APL standing in the name of defendant No.1 as on 02.10.2001. Ex.P.4 is the Election Voter ID Card of plaintiff. Ex.P.5 Airtel ID Card of plaintiff. Ex.P.6 Metro ID Card of plaintiff. Ex.P.7 Residential Certificate issued by Deputy Tahasildar, Sarjapura-1, Anekal Taluk. As per this document plaintiff residing at T.C. Halli, Sarjapura-1 Hobli, Anekal Taluk, Bangalore.
21. Ex.P.8 is the Order copy of Hon'ble High Court of Karnataka, Bangalore in RFA No.1566/2003. As per this document defendant No.1 and his daughter Smt. Rajeshwari filed Appeal against the Judgment and Decree passed in O.S. No.273/1987. As per the order the Hon'ble Court confirmed the decree passed in O.S. No.273/1987.
22. Exs.P.9 to 13 are the RTC with respect to Sy. No.86/1 totally measuring 2.07 acres out of which 0.03.08 guntas of land stands in the name of defendant No.1 on the basis of MR No.H 104/2012. It is the item No.3 of the property.
23. Ex.P.14 is the Gift Deed dated 06.04.2013 with respect to item No.3 of the property. The defendant No.1 father gifted in favour of his daughter defendant No.3. On perusal of the recitals it shows that the father sated, it is his self acquired property in the year 2000 through registered sale deed dated 18.11.2000. It is registered in RTC as per mutation No.H.104/2012-13. The reason for the gift he mentioned that his daughter has taken care of him when his health was not in good condition. Accordingly he gifted the same to his daughter. He also mentioned in the deed that his son plaintiff has no right over the property.
24. On the contrary, if we perused the documents produced by the defendants it shows that Ex.D.1 copy of sale deed dated 08.06.2000 it is also produced by plaintiff as per Ex.P.1. Ex.D.2 is the gift deed dated 06.04.2003 it is also produced by the plaintiff as per Ex.P.14. Ex.D.3 is the MR No.H 83/2014-15 dated 30.03.2015. This shows as per Gift Deed the name of defendant No.3 mutated to the item No.3 of the property. Ex.D.4 is the RTC of Sy. No.86/1 measuring 2.07 acres out of which 0.03.08 guntas mutated in the name of defendant No.3 as per MR No.H.83/2014-2015. Ex.D.5 is the Encumbrance certificate shows the transaction of Gift deed dated 06.10.2013 in the name of defendant No.3. Ex.D.6 is the mutation extract for entering the name of defendant No.3 on the basis of Gift Deed to item No.3 of the property.
25. Ex.D.7 is the objections jointly filed by defendant Nos.1 and 3 to the IA filed under Order 40 Rule 1 of CPC. On perusal of the same it shows that both defendant nos.1 and 3 jointly deny the suit properties as joint family properties. According to them item Nos.2 and 3 are the self acquired property of defendant No.1. Subsequently, defendant No.1 gifted item No.3 to defendant No.3. As such, it is self property of defendant no.3.
26. Ex.D.8 is the sale deed dated 10.09.1997 in the name of defendant No.2 Sarojamma as per decree in O.S. No. 10282/1996 and Ex. Case No.10061/1996 with respect to item No.1 of the suit schedule property. Ex.D.9 is the khatha certificate dated 18.07.2018 entered in the name of defendant No.2 with respect to item No.1 of the property. Similarly, Ex.D.10 is the khatha extract of BBMP in the name of defendant No.2. Ex.D.11 Revenue receipt for 2018-2019, Ex.D.12 Encumbrance certificate with respect to item No.1 of the property.
27. Ex.D.13 is the copy of Judgment in O.S. No.1904/2006 dated 06.04.2017 passed by Anekal Court with respect to item No.2 of the property. Ex.D.14 is the Order in FDP No.83/2007 dated 28.08.2016 passed by CCH-3 Court on the basis of preliminary decree passed in O.S. No.273/1987.
28. Ex.D.15 is the Criminal Misc No.698/2017 order sheet. Ex.D.16-petition in the same misc petition filed by defendant No.1 father against his children plaintiff and defendant No.3 for seeking maintenance. Similarly, Exs.D.17 and 18 are the applications filed by daughter defendant no.3 seeking permission to file objections along with objections to I.A filed under order 40 rule 1 of CPC.
29. Exs.D.19 to D.23 are the copy of notices sent by defendant No.3 to the tenants of the premises and Ex.D.24 is the postal receipt, Exs.D25 to D.27 are the Acknowledgements, Exs.D.28 to D.30 are the Rent agreement between defendant No.3 Kavitha with tenants as on 31.12.2015 and 20.07.2016. Ex.D.31 to 35 are the Tax paid reciepts. Exs.D.36 to D.115 are the medical documents for the treatment taken by defendant No.1 during 2010, 2015, 2017 etc.,.
30. Similarly, if we perused the oral evidence of P.W.1 it shows that he deposed as per his pleadings in the chief examination affidavit marked documents.
31. On perusal of cross examination made by Counsel for defendant Nos.1 and 3 it shows that there is no dispute regarding relationship between them.
32. In the cross examination he states that he worked in Airtel company on contract basis from 2005 to 2009. Though he stated his salary based upon his business he never stated what is the salary he is going to get. He only produces ID Card of AIRTEL as per Ex.P.5. It does not contain the date of his service and salary. Except this ID card he has no other document or evidence to establish his income from Airtel or his contribution to purchase the item No.3 of the property by defendant No.1 during 08.06.2000.
33. Similarly, he also deposed regarding worked as Auto driver from 2013 onwards. But, there is no document of his income earned from Auto driver. Whereas he admits that his father worked as casual labour in MICO factory for same time. Similarly, he also admits that his father worked as auto driver. Similarly, admits his father in the year 1992 started Kerocene business in Wilson Garden Area. It is also admitted that his father worked as Real estate business on commission basis. This admission by P.W.1 shows his father as sufficient means to purchase item no.3 property in the year 2000.
34. Similarly, he admits the marriage of defendant No.3 at the age of 18 years. She has two children her husband left her and married another lady settled at Hosur. He also admits that his father is chronic diabetic patient. It is also admit in the year 2015 the left leg of his father was amputed below the knee due to gangrene.
35. Though, he denied that after amputation of left of his father, his mother left him and residing with him, but admits since 6 months his mother residing with him. He also admits his father residing with his sister in the layout.
36. Similarly, he admits item No.1 of the property purchased by his father in the name of his mother. Now his mother taking rents of said premises. He also admits item No.2 property is ancestral property in which his father has 1/7th share. He also admits item No.3 purchased by his father for Rs.2,50,000/- through sale deed, but in the sale deed consideration amount mentioned as Rs.18,000/-. After purchase of property his father constructed 4 shops in the ground floor, 2 small rooms and two residential houses in the first floor. He also admits his father was collecting rent of the premises. Further, voluntarily the plaintiff stated that after the gift deed his sister collecting rents. He also admits the house visible in all the plaintiffs Exs.D.4 to 8 which are part and parcel of item No.3.
37. Once again this witness recalled for further cross examination by defendant Nos.1 and 3. In which it is cross examined with respect to item No.2 of the property. In the dispute between his father and brothers the father defendant No.1 get 1/7th share as per Court order. The said FDP is still pending.
38. He denied that he forcibly occupied in item No.3 of the property i.e., house in first floor. When his father got amputation of leg, his mother is in the occupation of one of the sheet roof house in the second floor. He denied that his father alone invested about 10-15 Lakhs of rupees for construction of the house in item No.3.
39. This witness once again examined by recalling and stated that his sister married in the year 1995. The marriage expenses were of Rs.2,00,000/-. Subsequently after dispute his sister returned to house by leaving her husband along with her two children. After executing gift deed dispute arose between them. This P.W.1 at one breedth admitted item No.3 is self acquired property of defendant No.1 and in another breadth he states altogether purchased for the joint family. As such, he says the gift deed executed by his father is void document.
40. In the cross examination made by defendant No.2 Counsel admit item No.1 of Property belongs to his mother Sarojamma. Item No.2 belongs to defendant No.1 his father. He admits that the dispute with respect to item No.2 of property is still pending and in which he has been impleaded as party.
41. Item No.3 belongs to his father defendant No.1 it is again admitted that plaintiff and defendant Nos.1 to 3 are in actual possession of suit item No.3. He contributed money for purchase of item No.3, but not produced documents. Further it is elicited that plaintiff and defendants living separately. He has no right to effect partition of 1/4th share in all the suit schedule property. So the cross examination made by the counsel for defendant No.2 shows she is supporting the version of plaintiff. As such, she took admission of plaintiff for their share.
42. Once again this P.W.1 cross examined by defendant Nos.1 and 3 in further. In which he stated that he has not produced any document to show that he has supported his sister and her children. He admits khata of item No.3 in the name of defendant No.3, but she is not in possession of the same. He admits that he has not disputed khata effected in the name of defendant No.3.
43. So from the evidence of P.W.1 it clearly shows that item No.1 of the property purchased in the name of defendant No.2 and item No.3 of the property purchased by defendant No.1. Subsequently defendant No.1 constructed house and shops in it. In the year 2013 it has been gifted to defendant No.3 as she took care of her father defendant No.1, when he was under health problem.
44. Here if as per law one thing is that when the property has been purchased in the name of woman. Then as per Section 14 of the Hindu Succession Act it is her absolute property. On perusal of evidence of P.W.1 it shows that it is of not much disputed. Moreover, defendant No.2 is also examined as D.W.3 and depose with respect to the same. She got marked documents as per Exs.D.8 to D.12.
45. In the cross examination made by plaintiff, she supported the version of plaintiff. Similarly in the cross examination made by defendant No.3 Counsel shows that he asked detail history of her husband and his family members etc.,. Further she states regarding her husband and income for the family. Though the defendant No.3 Counsel cross examined with respect to the income, nothing is elicited to disbelieve her version. Moreover, defendant No.3 not establish it is a joint family property. Because when the property purchased in the name of woman it is treated as her self acquired property. Moreover, from the date of purchase in the year 1995 till this date there is no disputes.
46. Further, defendant No.1 is also examined as D.W.2. Ofcourse, he deposed as per his contentions taken in the written statement. But, in the chief examination he states that item No.3 property stands in his name is his self acquired property. Apart from that he adds plaintiff extended financial assistance to purchase item No3. Property by him. But, this stand not taken in the written statement filed jointly with defendant No.3.
47. Further, he also states that he was suffering from many health problems particularly diabetic, on which his left leg amputed. The defendant No.3 during that time by taking advantage of his ill-health got signed certain papers from him, when he was taken to her house. Similarly, according to her instruction he signed to the written statement as well as to the Amended written statement. He further says he has no objection to divide the property item No.3 equally among all the members of the family i.e., plaintiff and defendants. He further stated item No.1 standing in the name of defendant No.2 and item No.2 under litigation. Hence, these two properties are not available for partition.
48. According to the version of D.W.2 his daughter defendant No.3 without his knowledge get the gift deed registered in her name. Till today he is in possession of the property and collecting rents from the tenants. He has no intention to gift the property to defendant No.3.
49. From this chief examination it shows he supported plaintiff though earlier in written statement denied the same. Even in the cross examination made by plaintiff he supported the version of plaintiff to show that the suit properties item Nos.1 and 3 are joint family properties.
50. Similarly on perusal of cross examination made by defendant No.3 he stated that defendant No.3 has taken his signature on some papers by saying that it required for the instituted. He admits Ex.D.2 the Gift deed and his photo in it as well as his signature which are marked as Ex.D.2(a) and Ex.D.2(b). He also admitted his signature on written statement Ex.D.7. His signature marked as Ex.D.7(a). He also admitted that he signed in English. He admits that he came to Court along with plaintiff. He also admitted in the affidavit he signed in Kannada.
51. Further this D.W.2 admits that he has no documents to show that plaintiff helped financially for purchasing suit item No.3 property. He do not know regarding khatha changed in the name of defendant No.3.
52. This witness further admits that O.S No.1904/2006 filed against him and others before Anekal Court. The two sites in that suit are in his possession. It is also admitted that he is receiving rent of item No.3 property. But, he says he is receiving rent since 1 ½ years. Prior to that defendant No.3 used to receive rents.
53. It is further the witness stated that defendant No.3 filed complaint against him and he was sent to jail. Once again D.W.2 recalled for further cross examination. During further cross examination he states that he has not received any summons. But stated that he signed to the documents. But, he do not know which of the documents he signed. Further, he denied that defendant No.3 taken him to hospital and she bear the hospital expenses. According to him his wife took him to hospital etc.,. He further admits now he, his wife and son are residing together.
54. From the evidence of this witness it shows that at the time of filing written statement he joined with defendant No.3. but now he changed his version in favour of plaintiff. Considering these version simply denial of execution of gift deed by admitting the gift deed is not sufficient to disprove the execution of gift deed. When the item No.3 property is self acquired property then he has get every right to execute gift in favour of any person. Here he executed Gift deed in favour of his daughter defendant No.3. Ofcourse at that time he was suffering from chronic diabetic and his leg was amputated. But merely his physical disability it cannot be said that execution of Gift deed beyond his knowledge. Though, his leg was amputed , it is not presumed that his mental condition was not good. This clearly shows that by knowing the facts he executed gift deed in favour of defendant No.3. He himself admitted that defendant No.3 receiving rent of the premises earlier. Now since 1 ½ years he is receiving rent. This shows that he might be receiving rent but it does not mean that he has not executed gift deed or else defendant No.3 fraudulently got executed the gift deed.
55. From all these evidence and documents it is crystal clear that item No.1 and item No.3 of the properties are self acquired properties of defendant No.1. the item No.1 property purchased in the name of defendant No.2. When the property is purchased in the name of female person as per Section 14 of Hindu Succession Act it is her absolute property. The defendant No.1 and plaintiff as well as defendant No.3 not disputed the same. Here the plaintiff is not entitle share in item No.1 of the property as he failed to establish it is a joint family property of plaintiff and defendants.
56. Similarly, with respect to item No.3 of the property it is self acquired property of defendant No.1. The plaintiff failed to establish that he contributed for purchasing the property. But, there is no entitle even though defendant No.1 examined as D.W.2 states that plaintiff financially assisted to purchase property. The D.W.2 denied in written statement and admitted in evidence. Hence, it amounts to variance of pleadings. Hence, evidence of D.W.2 not acceptable. Accordingly, I hold that item No.3 of the property is self acquired property of defendant No.1.
57. Moreover, when the item No.3 property is self acquired property of defendant No.1, then they have absolute right to dispose of the same. Accordingly, he executed gift deed in favour of defendant No.3. Though, D.W.2 admitted gift in written statement and later in evidence disputed the same. It amounts to variation of pleadings and evidence. Hence, it is not acceptable. Moreover, he admitted his signature and photo on gift deed Ex.D.2. But, failed to establish that the defendant No.3 fraudulently got it sign on some papers, but it is not established. Even D.W.2 i.e., defendant No.1 not challenged the said gift deed. Even he also not claimed Counter claim by challenging the same. Moreover, defendant No.1 has other property apart from item No.3. Hence, considering all these aspects, I am of the opinion that plaintiff failed to establish that the item No.3 property is a joint family property of plaintiff and defendants.
58. Then the property remained is item No.2. Admittedly, it is still under litigation between defendant No.1 and his siblings. Ofcourse, as per decree passed, defendant N.1 is having 1/7th share and it is also confirmed by Hon'ble High Court in RFA. But, still the share of defendant No.1 is not finalized. The FDP proceedings still pending. As such, plaintiff failed to establish that item No.2 property is joint family property as on the date of suit.
59. Though, in the arguments it is contended that oral evidence can't be believed, fraud alleged at later stage. Even as contended in O.S. No. 182/20 is filed for cancellation of gift deed. But no such document is produced. There is no pleadings and evidence to that effect. Similarly, it is also contended by the plaintiff that as per senior citizen defendant No.3 cannot got execute gift deed without the knowledge of defendant No.1. But, defendant No.1 himself admitted execution of gift deed in favour of defendant No.3 as she has taken care. But, now he is residing with plaintiff her changed his version. This shows that defendant No.1 cannot change his version according to his choice. Moreover, once the gift is given he cannot take back. At the most he can change if fraudulently the gift deed is executed. But, there is no such material.
60. It is also contend the revenue entires cannot give absolute rights, as suit still pending in O.S. No.182/2020. But, from the evidence gift deed executed in 2013. On the basis of Gift Deed Revenue entires effected. Even in written statement defendant No.1 admitted gift deed executed in favour of defendant No.3. He also admits defendant No.1 collecting rents from tenants. Even as per the rent agreement and notices produced by defendant No.3 shows on the basis of gift deed her name mutated and she is in possession of the property. The defendant No.1(D.W.2) in his evidence admitted the same. Now he says only from one and half year he is receiving rent. It does not vitiates the execution of gift deed.
61. Considering all these aspects, the plaintiff failed to establish that item Nos.1 to 3 properties are the joint family properties of plaintiff and defendants as on the date of suit. Accordingly I answer issue No.1 in the negative and issue No.2 in the affirmative.
62. Issue No.3 :- According to the version of defendants, the plaintiff is entitle share in suit item No.2 only. The defendant Nos.1 and 3 contend that item Nos.1 and 3 are the self acquired properties of defendant No.1. Naturally when defendant No.1 acquired properties on his own, then naturally he has every right to dispose the same.
63. Out of the two properties purchased by defendant No.1, item No.1 purchased in the name of defendant No.2, then naturally it is her self property. The other defendants or plaintiffs have no right over the same. Similarly, item No.3 property purchased by defendant No.1. He gifted the said property to his daughter defendant No.3. Here we have to consider that defendant No.3 has taken care of defendant No.1 during his ill-health. As such, he gifted the said property to her. When the self property has been gifted then the plaintiff has no right to question the same. As such, item No.3 property is her self property.
64. The other item No.2 property in which defendant No.1 is having share. But, the said share of defendant No.1 is not cleared as still FDP is pending. Here when the defendant No.1 has not got the property, then it is not available for division. Hence, the plaintiff is not entitle share in all the suit properties. Accordingly, I answer issue No.3 in the negative.
65. Issue No.4 :- According to plaintiff's all the suit schedule properties are the joint family properties of both plaintiff and defendant Nos.1 to 3. Ofcourse, there is no dispute among their relationship, plaintiff and defendant No.3 are the children of defendant Nos.1 and 2. It is also not in dispute that item No.2 property is pending for adjudication in FDP proceedings among the brothers of defendant No.1. Hence, when the share of defendant No.1 is not clear, then it is not available for partition.
66. Similarly, item No.1 property is purchased in the name of defendant No.2. Here when the property purchased in the name of female member of the family, it is her absolute property. Naturally when the defendant No.2 becomes absolute owner of the property the other defendants including the plaintiff are not entitle share in it.
67. Similarly, item No.3 of the property is the self acquired property of defendant No.1. He gifted the property to defendant No.3 his daughter out of love and affection. Hence, defendant No.3 has been left by her husband. Her husband by leaving defendant No.3 and their two children got married another lady which also suffers regarding gift of property. Apart from this plaintiff not produced any substantive material to disbelieve the version of defendants.
68. Hence, from all these aspects it is crystal clear that plaintiff failed to establish share in all the suit schedule properties. Accordingly, I answer issue No.4 in the negative.
69. Issue No.5 :- In view of the above discussion on issue Nos.1 to 4, I proceed to pass following :-
ORDER The suit of the plaintiff is hereby dismissed.
The parties are family members no order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 23 rd day of March 2022.) (S.R.Dindalkoppa) XV Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF :
P.W.1 :- K. Shankar DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 Sale Deed dated 08.06.2000
Ex.P.2 Encumbrance Certificate
Ex.P.3 Ration Card
Ex.P.4 Election Voter ID Card
Exs.P.5 Airtel ID Card
Ex.P.6 Metro ID Card
Ex.P.7 Residential Certificate issued by Deputy
Tahasildar, Sarjapura-1, Anekal Taluk
Ex.P.8 Order copy of Hon'ble High Court of
Karnataka
Exs.P.9 to 13 RTC with respect to Sy. No.86/1
Ex.P.14 Gift Deed dated 06.04.2013
WITNESSES EXAMINED FOR THE DEFENDANTS:
D.W.1 :- Smt. Kavitha
D.W.2 :- Mr. N. Krishna Reddy
D.W.3 :- Sarojamma. G
DOCUMENTS MARKED ON BEHALF OF THE
DEFENDANTS:
Ex.D.1 Copy of Sale Deed dated 08.06.2000
Ex.D.2 Gift Deed dated 06.04.2003
Ex.D.3 MR Extract
Ex.D.4 RTC of Sy. No.86/1
Ex.D.5 Encumbrance Certificate
Ex.D.6 Mutation Extract
Ex.D.7 Objections jointly filed by the defendant
Nos.1 and 3
Ex.D.8 Sale Deed dated 10.09.1997
Ex.D.9 Khatha Certificate dated 18.07.2018
Ex.D.10 Khatha Extract
Ex.D.11 Revenue Receipt for 2018-19
Ex.D.12 Encumbrance Certificate
Ex.D.13 Copy of Judgment in O.S. No.1904/2006
dated 06.04.2017
Ex.D.14 Order in FDP No.89/2007
Ex.D.15 Criminal Misc No.698/2017
Ex.D.16 Petition in the same petition filed by
defendant No.1 father against his children
plaintiff and defendant No.3
Exs.D.17 and 18 Applications filed by daughter defendant No.3 Exs.D.19 to 23 Copy of Notice sent by defendant No.3 Ex.D.24 Postal Receipt Exs.D.25 to 27 Acknowledgements Exs.D.28 to 30 Rent Agreement Exs.D.31 to 35 Tax Paid Receipts Exs.D.36 to 115 Medical documents (S.R.Dindalkoppa) XV Addl.City Civil & Sessions Judge, Bengaluru.