Bangalore District Court
Smt. Mahalakshmi vs Sri. P. Narayanappa on 27 November, 2020
1 OS.No.17836/2005
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for
AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Judgment in suits
(R.P.91)
Present: Sri. Krishnaji Baburao Patil, B.Com., LL.B.(Spl.),
(Name of the Presiding Judge)
Dated: This the 27th day of November 2020
Original suit No.17836/2005
Plaintiffs:- 1. Smt. Mahalakshmi,
Daughter of P. Narayanappa,
Aged about 22 years,
Residing at No.976/31,
4th Cross, Kothur,
Vijinapura, Bangalore-16.
2. Smt. Prema,
Daughter of P. Narayanappa,
Aged about 20 years,
Residing at No.54,
4th Cross, Lakkasandra,
Bangalore-30.
(By Pleader Sri. B.A. Bramhananda Reddy)
V/s
Defendants:- 1. Sri. P. Narayanappa,
Son of Late Papanna,
Aged about 63 years,
2. Sri. Shankar Kumar,
Son of P. Narayanappa,
Aged about 30 years,
2 OS.No.17836/2005
3. Sri. Pradeep Kumar,
S/o P. Narayanappa,
Aged about 27 years,
No.1 to 3 are residents
of No.206, Yamalur Village,
Varthur Hobli, Bangalore-37.
4. M/s EPSILON VENTURES PRIVATE
LIMITED,
A Company incorporated having
its office at No.2, Walton Road,
Bangalore-560 001,
Represented by its Managing Director,
Mr. Kapil Sarin,
5. M/s Sai Smaran Construction,
Represented by its Partner,
Sri. P. Bhaktavatsala Reddy,
# 158/1, Ist Cross, Mariyappa Layout,
Chelakere Village,
(Meganapalya) Kalyana Nagar Post,
Bangalore-560 043.
6. Sri. Paras Suri,
S/o Devraj Suri,
Aged about 50 years,
Residing at No.775, 100 feet road,
HAL II Stage,
Indiranagar,
Bangalore-560 038.
7. Sri.Raju M. Mathaney,
S/o Late Mohan Das Mathaney,
No.B-2, Yemlur Home Owners
Association,
Yamalur Village Main Road,
Yamalur Post,
Bangalore-560 037.
3 OS.No.17836/2005
8. Smt. Padmavathi,
D/o P. Narayanappa,
W/o K. Gopal,
Aged about 40 years,
Resident of #2189,
3rd Cross, Bhairaveshwara Nilaya,
Kuvempu Nagar, Vijinapura,
Bangalore-16.
9. Mr. Suresh Sud,
S/o Mr. M.M. Sud,
Aged about 51 years,
Residing at Villa No.D-1, Epsilon,
Yemlur Home Owner's Association,
Yemlur Main Road, Behind Old Airport,
Bangalore-560 037.
10. Smt. Papamma,
W/o Krishnappa,
D/o Late Papanna,
Aged about 75 years,
11. Smt. Sarojamma,
D/o Krishnappa,
Aged about 52 years,
12. Sri. Gopal,
S/o Krishnappa,
Aged about 48 years,
13. Smt. Bhagirathi,
D/o Krishnappa,
Aged about 45 years,
14. Smt. Radha,
D/o Krishnappa,
Aged about 42 years,
4 OS.No.17836/2005
Defendant 10 to 14 are
Resident of No.2189,
Kuvempu Layout,
Vijinapura, (Kottur),
Dooravani Nagar Post,
K.R.Puram Hobli,
Bangalore-560 016.
(Sri. P. Venkatagiri Adv., for D.1, Sri. V. Manjunatha
Adv., for D.2 & 3, Sri.Gururaj D.M Adv., for D.4,
Sri.M.S. Varadarajan Adv., for D.5, Sri. Rajesh S.V.
Adv., for D.6 & 7, Sri. Rajesh Adv., for D.9,
Sri.P.B.Prakash Adv., for D.8, 10 to 14)
Date of Institution of the suit 17.12.2005
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Partition
injunction, etc.)
Date of the commencement of 5.9.2013
recording of the Evidence
Date on which the Judgment was 27.11.2020
pronounced
Year/s Month/s Days
Total duration 14 11 10
JUDGMENT
The present suit is filed by the Plaintiffs initially for the relief of partition and separate possession of 1/5th share in the Suit Schedule Properties and to declare that the Sale Deed 5 OS.No.17836/2005 dtd:27.11.2002 has been executed by playing fraud and misrepresentation is not binding on the Plaintiff and for mense profits with regard to the schedule properties and other reliefs.
2. Subsequently, the plaint was amended and Para No.9(a), 10(a) (b) & (c) were impleaded and prayer No.ii(a) and ii(b) have been included.
3. The case of the Plaintiffs is that the Plaintiff and the Defendant No.2 and 3 are the daughters and sons of Defendant No.1 from his first wife Smt. Mahalakshmamma who died in the year 1982. The Defendant No.1 after the death of his first wife married Smt. Sarojamma in the year 1983 and out of the said second wedlock two daughters were born i.e., the 1 st and 2nd Plaintiff. The Defendant No.1 to 3 and the Plaintiffs have jointly inherited certain ancestral immovable properties described in the Schedule 'A' to 'G' Properties in the plaint schedule. The 1 st Plaintiff got married on 11.11.2002 with N. Ramesh in a very simple marriage and her husband did not get anything from the Defendant No.1 to 3 as dowry at the time of her marriage. However, the 1st Defendant before the marriage assured the 1 st Plaintiff that he would partition the schedule properties between 6 OS.No.17836/2005 the Plaintiffs, Defendant No.2 and 3 and himself in equal shares. After few days the marriage of the 1 st Plaintiff the Defendant No.1 to 3 told the 1st Plaintiff that very shortly she has come to the Sub-Registrar Office to register the Partition Deed so that she can get her separate share in the schedule properties for that she agreed. Thereafter, few days later Defendant No.1 to 3 called the 1st Plaintiff and her mother to come over to Sub- Registrar Office, Bangalore South, Urban District, for registration of Partition Deed. The 1 st Plaintiff and her mother, Defendant No.1 to 3 went to the said Sub-Registrar Office and after reaching the said place the Defendant No.1 to 3 brought typed deed and told the 1st Plaintiff to sign the same and did not give any chance to the 1st Plaintiff to read the contents of the Deed and forced her to sign the same stating that it was a Deed of Partition and nothing else. The 1st Plaintiff without doubting Defendant No.1 to 3 and in a good faith purporting it to be Deed of Partition has signed and told her mother also to sign the same. Strangely Padmavathi who was daughter of 1 st Defendant's 1st wife was also present and she also signed the said Deed. After the registration of the above said Partition Deed 7 OS.No.17836/2005 the Defendant No.1 to 3 told her that to get her separate share in the schedule properties some paper work has to be completed with the revenue officials and it would take at least 8 to 10 month. After expiry of 10 months also the said Defendants told the 1st Plaintiff that the paper work with the revenue officials not yet completed and have to spend huge amount. The 1st Plaintiffs hope of getting separate share remained unfulfilled, because even after the expiry of more that two years, the Defendant No.1 to 3 went ton assuring her that necessary paper with be revenue officials yet not be completed. In the meanwhile the 2nd Plaintiff got married on 9.3.2004 with Mr.Mahesh. The 2nd Plaintiff's marriage was also very simple, she and her husband did not get anything as a dowry from the Defendant No.1 to 3. However, the 1 st Defendant had promised the 2nd Plaintiff that he would get her equal share in the schedule properties very shortly. But, the Plaintiff No.1 and the 2nd Plaintiff did not get share in the schedule properties. Therefore, both the Plaintiffs joined together and made demands with the Defendant No.1 to 3 to partition in schedule properties by metes and bounds and to give their separate share. Inspite of 8 OS.No.17836/2005 repeated demands for partition the said Defendants went on giving some excuses. Both the Plaintiffs joined together and during the first week of September 2005 they made oral demands for partition and vehemently pressed for partition of the schedule properties by metes and bounds. At that time, the 1st Defendant told that all the schedule properties were sold to the 4th Defendant during the year 2002 when the 1st Plaintiff and her mother came over to the Sub-Registrar Office. The 1 st Plaintiff shocked by the statement of the said Defendants, enquired in the Sub-Registrar Office and applied for the certified copies of the Deed which was signed by her purporting to be a Partition Deed. After obtaining the certified copies of the said Deed to her shock, she came to know about the fraud played by the Defendant No.1 to 3, because it was not a Partition Deed, actually it is a Sale Deed on which signature of the 1 st Plaintiff and her mother was obtained by the said Defendants purporting to be a Partition Deed.
4. As per the Sale Deed dtd: 27.11.2002 on which signatures of the 1st Plaintiff was obtained purporting to be a Partition Deed, 'A' Schedule Property is sold to the 4 th 9 OS.No.17836/2005 Defendant. The 4th Defendant colluding with the Defendant No.1 to 3 got registered the said deed knowing very well the legitimate shares of the Plaintiffs in the Schedule Properties. The Defendant No.1 to 3 colluding with the 4th Defendant played fraud on the Plaintiffs to deprive their shares in the schedule properties. The fraud and misrepresentation committed by the Defendant No.1 to 3 is evident from the Sale Deed dtd:27.11.2002 itself. Because, it is pertinent to note that unconcerned persons are made asperities in the said Sale Deed. Smt. Padmavathi who is a long back married daughter of the 1 st Defendant from his first wife and who is not entitled for any share in the schedule properties is shown as one of the Vendors. The 2nd Plaintiff who was minor during the year 2002 not at all made party to the said Sale Deed, but she is shown as minor daughter and represented by the 1 st Defendant as a guardian and kartha of Hindu Undivided Family. The Plaintiffs have contended that the alleged Sale Deed dtd: 27.11.2002 is not binding on them because same is executed and obtained by the Defendants by playing fraud and misrepresentation and the signature of the 1st Plaintiff is obtained by the Defendants 10 OS.No.17836/2005 purporting to be a Partition Deed. Moreover the Defendant No.1 to 3 have not alienated 'A' Schedule Property neither for the family necessities nor the benefit of the Plaintiffs and it is only done in order to deprive the legitimate shares of the Plaintiffs in the Schedule Properties. In the alleged Sale Deed dtd:27.11.2002, no part of the sale consideration amount is passed on to the Plaintiffs or in favour of their mother. On the other hand all the Defendants colluding each other and with malafide intentions shown the name of Smt. Papamma @ Papalamma, elder sister of the Defendant No.1 as a consenting witness to the said Sale Deed. Smt. Papamma @ Papalamma who is not at all concerned nor having any right, title, interest with regard to the 'A' Schedule Property nor with regard to any other schedule properties herein. Thus it is very clear that the Defendants colluding with each other and by playing fraud and misrepresentation registered the Sale Deed purporting to be a Partition Deed, hence, it is not binding on the Plaintiffs.
5. As per amendment Para No.9(a) The Defendant No.1 colluding with Defendant No.10 have created bogus and sham antedated document called Family Arrangement dtd: 20.1.1991 11 OS.No.17836/2005 which is not a registered Deed. Through which illegally acting on said fictitious Family Arrangement Deed, Defendant No.10 joined with Defendant No.11 and 14 sold the Schedule 'B' Property bearing No.18/1 measuring 3 acres 14 guntas situated at Kempapura Village, Varthur Hobli, Bangalore, in favour of Defendant No.2 and 3 by registered illegal Sale Deed dtd:
29.12.2003, in order to deprive the legitimate share of the Plaintiffs and to falsely shown that as if Schedule 'B' Property is the self-acquired property of the Defendant No.2 and 3. Since, the alleged Family Arrangement Deed dtd: 20.1.1991 is antedated bogus, fictitious and sham deed, which is created for the purpose of case, the Defendant No.2 and 3 have not derived any title, on the basis of legal Sale Deed dtd: 29.12.2003, since said sale deed is created in order to deprive the legitimate share of the Plaintiffs. As such Sale Deed dtd: 29.12.2003 is not at all binding on the Plaintiffs with regard to their legitimate share is concerned in respect of Schedule 'B' Property which is an ancestral and joint family property of the Plaintiffs and Defendant No.1 to 3. As per the fraudulent Sale Deed dtd:
27.11.2002 the entire amount of sale consideration is passed on 12 OS.No.17836/2005 to the Defendant No.1 to 3, hence, it is not a genuine Sale Deed, it is done by the Defendants purporting to be a Sale Deed. Now also, if at all the Defendant No.1 to 3 have alienated any portions of the Schedule Properties to others, same shall not be binding on the Plaintiffs.
6. As per amended Para No.10(a) The Defendant No.1 to 3 despite of pendency of the case colluding with the 4 th Defendant sold the Schedule 'C' Property in the name of the 4 th Defendant by registered Sale Deed dtd:28.7.2010 registered in the Office of the Senior Sub-Registrar, Varthur, Bangalore District. Under the said Sale Deed Defendant No.1 to 3 deliberately included one Smt. Padma W/o K. Gopal and Smt. Varalakshmi R W/o N.M. Shankar Kumar who is Defendant No.2 in the Sale Deed as Vendors of the Schedule 'C' Property and received sale consideration of Rs.1,00,81,229/-. Even though prevailing market rate is more than the sale consideration shown in the Sale Deed. Under the Sale Deed 1st Defendant has received Rs.45,69,075/-, Smt. Padma received Rs.25,20,257/-. The Defendant No.2 has received Rs.15,00,000/- by way of cheque. The Defendant No.3 has received Rs.15,00,000/- by way of 13 OS.No.17836/2005 cheque. The Defendant No.1 to 3 colluding with 4 th Defendant have sold the Schedule 'C' Property by registered Sale Deed dtd:
28.7.2010 in order to deprive the legitimate share of the Plaintiffs. The Defendant No.4 who is already party in this case has purchased the Schedule 'C' Property. Therefore, the Sale Deed dtd: 28.7.2010 is not binding on the Plaintiffs. The Defendant No.4 who's Sale Deed dtd:27.11.2002 is under question and challenge in this case had sold the portion of Schedule 'A' Property in favour of Defendant No.6 and 7 by registered Sale Deed dtd: 27.10.2007 and 2.7.2003 on the basis of the illegal Sale Deed dtd: 27.11.2002. After coming to know about the illegal sale by the Defendant No.4 in favour of Defendant No.6 and 7, the Plaintiffs impleaded the Defendant No.6 and 7 in this case. Therefore, illegal Sale Deed dtd:27.10.2007 and 2.7.2003 are also not binding on the Plaintiffs.
7. Further, as per the amendment, Para No.10(b) the Plaintiff claimed that Defendant No.2 and 3 have entered into an Joint Development Agreement dtd: 21.6.2010 with Defendant No.5 for development of Schedule 'C' Property. Under the Joint 14 OS.No.17836/2005 Development Agreement Defendant No.2 and 3 have received sum of Rs.28,00,000/- as deposit amount. As per the Joint Development Agreement, Defendant No.5 has agreed to put up apartments and to share the constructed apartments at the ratio of 59% for the developer and 41% for the land owners. Now, the Defendant No.4 has started putting up construction work. In the event of completion work, Defendant No.2 and 3 and Defendant No.5 would share the apartments as per the Joint Development Agreement. The Defendant No.2 and 3 colluding with Defendant No.4 have entered into said Joint Development Agreement in order to deprive the legitimate share of the Plaintiffs. The Defendant No.5 who is aware about legal rights of the Plaintiffs with regard to the Suit Schedule Property and pendency of the present suit for partition and declaration, colluding with Defendant No.2 and 3 has entered into Joint Development Agreement dtd: 21.6.2010. Neither the Defendant No.2 and 3 nor the Defendant No.5 are not entitled to claim exclusive possession and right with regard to the Schedule 'B' Property or constructed apartments. Moreover, the Defendant No.2 and 3 in spite of pendency of present case for partition, 15 OS.No.17836/2005 deliberately have entered into Joint Development Agreement in order to defeat the legitimate share and legal rights of the Plaintiffs. Therefore, Joint Development Agreement dtd:
21.6.2010 entered by the Defendant No.2 and 3 with Defendant No.5 is not binding on the Plaintiffs.
8. As per amendment, Para No.10(c) the Plaintiff has contended that the 4th Defendant inspite of pendency present suit, on the basis of the illegal Sale Deed dtd: 28.7.2010 executed by the Defendant No.1 to 3 and Defendant No.8 in respect of Schedule 'C' Property bearing Sy.No.101/3 measuring 15 guntas situated at Amani Belandu Khane, Varthur Hobli, Bangalore East Taluk, Bangalore, he further out of 15 guntas sold an extent of 6,346 sq.ft., in favour of Defendant No.9 under the registered Sale Deed dtd: 9.9.2011. The Defendant No.9 who is well aware of legal rights of the Plaintiffs in respect of the Suit Schedule Properties and knowing well about pendency of the present suit for partition, colluded with Defendant No.4 and Defendant No.1 to 3 has purchased said extent under the said Sale Deed. Therefore, the Sale Deed dtd: 9.9.2011 is not binding on the Plaintiffs as for as their share is concerned. 16 OS.No.17836/2005
9. The Schedule Properties are ancestral and joint family properties of the Plaintiffs and the Defendants. The Plaintiffs are in joint possession of the schedule properties along with the Defendant No.1 to 3. As per Hindu Law of Succession the Plaintiffs are entitled to get 1/5th share along with the Defendant No.1 to 3. The cause of action for the suit arose on immediately after the marriage of the 1 st Plaintiff requesting the Defendants to partition the schedule properties and when the Plaintiffs jointly made final oral demand during the first week of September 2005 for partition and subsequently after obtaining the certified copies of the Sale Deed dtd: 27.11.2002, when the Plaintiffs came to know the fraud played by the Defendants within the jurisdiction of this Court. Hence, prayed to decree the suit.
10. The 1st Defendant has filed written statement admitting the relationship intersay between the Plaintiffs and the Defendant No.1 to 3 and denied all other plaint allegations specifically. Further contended that all the properties were the separate and self-acquired properties of this Defendant's father Gedigalu Papanna. Gedigalu Papanna died on 2.5.1949 leaving 17 OS.No.17836/2005 behind his legal heirs this Defendant and his elder sister Smt.Papamma. Both this Defendant and his sister Papamma succeeded to the Suit Schedule Property by way of inheritance after the death of Papanna. Thus all the Suit Schedule Properties were self-acquired properties in the hands of this Defendant as well as his sister Smt. Papamma. Long after the death of Gedigalu Papanna, this Defendant's sister approached with a request that she may be given a share in her father's properties. It should be mentioned in this context that though this Defendant as well as his sister Papamma succeeded to the Suit Schedule Properties by way of inheritance and therefore had equal shares in the properties inherited from Gedigalu Papanna. The Suit Schedule Properties were in exclusive possession and enjoyment of this Defendant alone. Long after the death of Papanna, Papamma approached this Defendant asking for a share and by way of a family arrangement this Defendant agreed to handover Schedule 'B' Property measuring 3 acres 14 guntas to Smt. Papamma. Papamma was placed in exclusive possession of 'B' Schedule Property. As she wanted a document to evidence this arrangement so that she can get mutation 18 OS.No.17836/2005 entries in her favour with respect to 'B' Schedule Property, a document dtd: 20.1.1991 came to be executed. Though the said document is styled as Partition Deed, as a matter of fact it only evidences the arrangement that had been earlier entered into between this Defendant and his elder sister Papamma. Except Schedule 'B' Property, other items of the plaint schedule namely Schedule 'A' 'C' 'D' and 'G' were retained by this Defendant. The Schedule 'E' and 'F' described in the plaint are nothing but portions of Schedule 'B' property which are described above, had been given to the share of Smt. Papamma. In pursuance to the written document evidencing the family arrangement, mutation proceedings were held with respect to Schedule 'B' Property in M.R.No.6 and Papamma was registered as the khatedar of Schedule 'B' Property. Accordingly pahani also came to be written in the name of Papamma with respect to the 'B' Schedule Property. Thus it can be seen that Schedule 'B' Property was the absolute property of this Defendant's sister Smt. Papamma. All the items of the Suit Schedule Property, except Schedule 'E' and 'F' Properties which are part of Schedule 'B' Property only continues to be the absolute property of this 19 OS.No.17836/2005 Defendant and in his exclusive possession and enjoyment since they were his self-acquired properties. During the year 2002, the 4th Defendant herein approached this Defendant and offered to purchase Schedule 'A' Property. This Defendant was also in need of funds to improve the other properties that he had retained and having regard to the fact that the 4 th Defendant offered to purchased Schedule 'A' Property at a competitive price which reflected the prevailing market price, this Defendant accepted the said offer and agreed to sell Schedule 'A' Property in favour of the 4th Defendant. Since Schedule 'A' Property was the absolute property of this Defendant, he was well within his right to execute the Sale Deed all by himself in favour of the 4 th Defendant. However it was 4th Defendant who insisted that all the family members should join this Defendant in executing the Sale Deed. Though the 4th Defendant knew that except this Defendant no one else had any manner of right, title or interest in the Schedule 'A' Property or any other property of this Defendant. However, the 4th Defendant wanted to guard against any future litigation that may be initiated or instituted by any of the children of this Defendant, however, frivolous and meritless 20 OS.No.17836/2005 such a litigation would be. In other words, though such a litigation would not have affected the right of the 4 th Defendant with respect to the Schedule 'A' Property in any manner whatsoever, the 4th Defendant did not want to be involved in a protracted frivolous litigation since it was firm in his mind that once the Sale Deed is executed in his favour by this Defendant one or the other children of this Defendant was bound to institute a frivolous litigation to try and see if they can make a wrongful gain out of frivolous litigation. Therefore, the 4 th Defendant insisted that all the children of the 1 st Defendant should joint together in the execution of the Sale Deed. Since, this Defendant had decided to sell Schedule 'A' Property in favour of the 4th Defendant, he requested his wife and children i.e., Plaintiff No.1 and 2 and Defendant No.2 and 3 herein, to joint him in the execution of the Sale Deed. This Defendant's children unlawfully insisted that if their signature are needed in the Sale Deed, then this Defendant should be ready to part with the consideration amount. Having regard to the fact that ultimately the consideration amount will be going to the hands of none other than his children, this Defendant agreed for this 21 OS.No.17836/2005 condition and accordingly this Defendant along with his wife and children i.e., Plaintiff No.1 and 2 and Defendant No.2 and 3 executed a registered Sale Deed dtd: 27.11.2002 in favour of the 4th Defendant in respect of the Schedule 'A' Property. As desired by his children consideration amount was also distributed amongst them including the Plaintiffs herein. It should be mentioned in this context that though in the Sale Deed itself payment made to Defendant No.2 and 3 along with this Defendant is shown in detail, the payment made to the Plaintiffs is not shown. The same is not without any reason. The Plaintiffs did not have a bank account of their own. Moreover the 2nd Plaintiff was a minor on the date of this Sale Deed. Therefore, payment could not be made to the Plaintiff by way of cheque. They could have been paid only by way of cash. Under these circumstances, the amounts paid to this Defendant as well as Defendant No.2 and 3 by means of cheque was mentioned in the Sale Deed. The amount paid by way of cash to Plaintiff No.1 and 2 is not mentioned in the sale deed, but they have acknowledged the receipt of the same as desired by the 4 th Defendant. It is the Plaintiffs mother who has received the 22 OS.No.17836/2005 amount on behalf of the 2 nd Plaintiff who was a minor on the date of the sale. The consideration amount mentioned in the Sale Deed met the requirement for payment of the stamp duty and of the Government notified market value and therefore the amount agreed to be paid to the Plaintiff was paid in cash which is not reflected in the Sale Deed. As has been pointed out above, the Plaintiff and for that matter Defendant No.2 and 3 did not have any right in respect of the Suit Schedule Property and their name came to be shown only for the reason made clear in the preceding. Therefore, whatever amount from out of the consideration money that this Defendant agreed to give to the Plaintiffs and Defendant No.2 and 3 was only because the 4 th Defendant insisted for their signatures in the Sale Deed and not because they had any manner of right, title or interest with respect to the Schedule 'A' Property. Under these circumstances, the 1st Plaintiff came to the Sub-Registrar's Office along with her mother on the date of the sale deed with respect 'A' Schedule Property which came to be registered in favour of the 4 th Defendant and not on account of any fraud or misrepresentation as sought to be alleged in the plaint. The 1 st Plaintiff as well as 23 OS.No.17836/2005 her mother have signed the said Sale Deed knowing fully well as to the contents of the said Sale Deed and after admitting its execution before the Sub-Registrar and after receiving money aforesaid for joining this Defendant to sign the said Sale Deed. Therefore, the Plaintiffs cannot call in question the Sale Deed dtd: 27.11.2002 executed in favour of the 4 th Defendant with respect to Schedule 'A' Property and they cannot claim any share in the same. Firstly, since the said property was the self- acquired property of this Defendant, they cannot claim any share in the same. Secondly, for having joined this Defendant in executing the Sale Deed in favour of the 4 th Defendant, they are estopped from calling in question the said Sale Deed. The said Property i.e., Schedule 'A' Property is now the absolute property of the 4th Defendant and it s in his exclusive possession and enjoyment. The Plaintiffs cannot claim any share in this item. Smt. Padmavathi, daughter of this Defendant through his first wife was also present to sign the Sale Deed in question is correct. The reason for her joining this Defendant in the execution of the Sale Deed is the same as above.
11. Further contended that Schedule 'B' Property was 24 OS.No.17836/2005 inherited by this Defendant along with his sister Papamma after the death of his father Gedigalu Papanna and under the family arrangement referred above, the same was given to Smt.Papamma and that it was her absolute property. She has now conveyed it in favour of Defendant No.2 and 3 under a registered Sale Deed for valuable consideration and therefore Schedule 'B' Property of which Schedule 'E' and 'F' are only portions, is the absolute property of Defendant No.2 and 3. Neither this Defendant nor Plaintiff No.1 and 2 have any manner of right, title or interest in the same and therefore the Plaintiffs cannot claim any share in the same. The rest of the items of the Suit Schedule Property being inherited by this Defendant after the death of his father Gedigalu Papanna, is therefore this Defendant's absolute property. It should be mentioned in this context that on the date of which Gedigalu Papanna i.e., this Defendant's father died on 2.5.1949 neither the Plaintiffs nor Defendant No.2 and 3 were even born. Therefore, Suit Schedule Properties which are self-acquired properties in the hands of Gedigalu Papanna, devolved on this Defendant and his sister by way of inheritance and hence these properties are self-acquired 25 OS.No.17836/2005 properties in the hands of this Defendant. The Plaintiffs have no right whatsoever in these items of the Suit Schedule Properties also and therefore they cannot claim any share in the Suit Schedule Properties. The Schedule 'A' Property is the absolute property of the 4th Defendant and Schedule 'B' Property of which Schedule 'E' and 'F' are the portion are the absolute and exclusive property of Defendant No.2 and 3. The Plaintiffs cannot claim any share in the same. The remaining items of the property are the absolute property of this Defendant. Schedule 'C' 'D' and 'G' are the absolute property of this Defendant as he inherited the same from his father Gedigalu Papanna and at that time neither the Plaintiffs nor Defendant No.2 and 3 were born. Schedule 'D' and 'G' are also wrongly described. They are portions of Sy.No.46 and they do not bear the number as defined in the schedule. Since these properties are the absolute properties of this Defendant and they are in his exclusive possession, the Plaintiffs cannot claim any share in the same. When the Plaintiff cannot have any manner of right, title or interest in any of the items of the Suit Schedule Property, they cannot claim any share and therefore there is no cause of action 26 OS.No.17836/2005 for them to file the suit. The suit is filed with a malafide intention to harass the Defendant. The suit filed by the Plaintiffs is a speculative one and the Plaintiffs are trying if they can make a wrongful gain from out of a frivolous litigation. Further contended that at no point of time the Plaintiffs were in joint possession of any of the items of the Suit Schedule Properties and therefore they cannot file the suit by paying a fixed court fee under Section 35(2) of the KF & SV Act. Therefore, they are bound to pay court fee on the market value of each of the items. For this reason also the suit is liable to be dismissed with exemplary costs. The Plaintiffs are not entitled to any of the reliefs sought for in the plaint. Hence, prayed to dismiss the suit.
12. Subsequent to amendment Defendant No.1 filed written statement in addition to the earlier written statement and further contended that since the Suit Schedule Properties are the exclusive properties of Defendant No.1 and Defendant No.10 Papamma, the Plaintiffs cannot question the Sale Deed dtd:27.11.2002 and subsequent Sale Deeds dtd: 28.7.2010 executed in favour of 4th Defendant in respect of Schedule 'C' Property. He denied the contents of amended Para No.10(a) to 27 OS.No.17836/2005
(c). He further contended that even if contents of Para No.10(a) are to be true, it cannot help the Plaintiffs came. It is the privilege of this Defendant to distribute his monies amongst whosoever he wants. Mere fact that Plaintiffs have receive part of consideration amount, cannot lead to the inference that they have any manner of right or interest in Plaint 'A' Schedule Property. Same is the case with respect to the Sale Deed dtd:28.7.2010 executed with respect to Schedule 'C' Property. The Schedule 'E' and 'F' are the portions of 'B' schedule property and the 'B' Schedule Property was the absolute property of this Defendant's sister Papamma through whom Defendant No.2 and 3 have derived title. This Defendant is not claiming any interest in either Schedule 'B' Property or Schedule 'E' and 'F' Properties. Thus, there is no necessity for this Defendant to traverse the averments made in Para No.10(b) of the plaint. Hence, prayed to dismiss the suit.
13. The Defendant No.2 and 3 have filed written statement denying all the plaint allegations specifically and further contended that all the Suit Schedule Properties were the self- acquired properties of 1st Defendant's father Gedigalu Papanna. 28 OS.No.17836/2005 He died on 2.5.1949. On the date of his death, neither the Plaintiffs nor these Defendants were even born. Gedigalu Papanna left behind as his legal heirs the 1st Defendant and his elder sister Smt. Papamma. Therefore, they succeeded to the Suit Schedule Properties by virtue of inheritance and therefore all the Suit Schedule Properties were in exclusive possession and enjoyment of the 1st Defendant as his sister Papamma was living with her husband and children. During 1990 or 1991 Smt. Papamma approached the 1st Defendant and asked for a share in her father's property. Though legally she was entitled to ½ share in all the properties, however, it was a matter of family arrangement between herself and the 1 st Defendant herein wherein she agreed to receive towards her share only Suit Schedule 'B' Property i.e., 3 acres 14 guntas in Sy.No.18/1 of Kempapura Village. She agreed that the 1st Defendant may retain by way of exclusive ownership the remaining items of Suit Schedule Properties, except Schedule 'E' and 'F' Properties which are nothing but portions of Schedule 'B' Property only. In that regard, there was a written document evidencing this arrangement was also executed between the 1st Defendant and 29 OS.No.17836/2005 his elder sister Papamma on 20.1.1991. Since from the date of family arrangement the Papamma took exclusive possession of the Schedule 'B' property and she became its absolute owner. She also got her name mutated in the revenue document. The rest of the Suit Schedule Properties continued to remain in the exclusive name and possession of the 1 st Defendant. Neither the Plaintiffs nor these Defendants have any manner of right, title or interest in these properties. In the year 2002 the 1 st Defendant approached these Defendants and informed them that he has agreed to sell Suit 'A' Schedule Property to the 4th Defendant. These Defendants did not have any right to the said property as the same was the exclusive property of the 1 st Defendant and therefore there was no need for 1 st Defendant to inform them about his proposal to sell the said item in favour of the 4 th Defendant. When they informed the 1 st Defendant about th is position, the 1st Defendant told them that the 4th Defendant is not willing to purchase the property unless all the children of the 1st Defendant joined him in the execution of the Sale Deed. The 1st Defendant also informed these Defendants that 4th Defendant was very particular that all of them should sign the Sale Deed. 30 OS.No.17836/2005 The 1st Defendant therefore requested these Defendants to join him in signing the Sale Deed or else the sale transaction itself would fall through. The 1st Defendant also informed these Defendants that the 4th Defendant is offering a good sum of money by way of sale consideration which he can utilize for the purpose of improving other family properties by which the family estate would be benefited and that therefore these Defendants should accede to his request and sign the Sale Deed. These Defendants agreed to do so. They also realised that the 4th Defendant being the purchaser it is but natural he may apprehend some future litigation from any of the children of the 1st Defendant and therefore he is insisting that all the children should joint in the execution of the Sale Deed. A similar request was made by the 1st Defendant to the Plaintiffs also as well as their mother. Though Plaintiffs did not have any right to the property yet to comply with the demand of the 4 th Defendant, the 1st Defendant was compelled to approach the Plaintiffs with the aforesaid request. This was exploited by the Plaintiffs and they demanded a share in the consideration money, if the 1 st Defendant wanted them to join them in the execution of the 31 OS.No.17836/2005 Sale Deed in favour of the 4 th Defendant. The 1st Defendant had to agree to this demand, or else, he feared that the sale transaction itself will not materialized. At that time 1 st Defendant on his own decided that if the Plaintiffs are given a share in the sale consideration these Defendants should also be given a share in the same. Similarly the Plaintiffs' mother should also be given a share in the consideration money. It was not very difficult for the 1st Defendant to accede to the demand of the Plaintiffs because the consideration money would be paid to none other than his own children. Under these circumstances the Sale Deed dtd: 27.11.2002 came to be executed by the 1 st Defendant in favour of the 4th Defendant in respect of Plaint 'A' Schedule Property and the Plaintiffs, their mother and these Defendants have joined the 1st Defendant in executing the said Sale Deed as vendors. These Defendants elder sister Smt.Padmavathi has also joined them in the execution of the said Sale Deed. The consideration money as had to be reflected in the Sale Deed complied with the requirement of stamp duty, is mentioned in the Sale Deed and though amount is paid by the 4th Defendant to these Defendants as well as others by way of 32 OS.No.17836/2005 cheque, the rest of the consideration amount as agreed between the parties is paid by cash by the 4 th Defendant into the hands of the Plaintiffs and their mother. The 2 nd Plaintiff was a minor on the date of the execution of the Sale Deed and hence she has not joined in the execution of the said Sale Deed and she was represented by her mother as natural guardian. After receiving the consideration amount, the 1 st Plaintiff has signed the Sale Deed dtd: 27.11.2002. She has signed the said document after knowing fully well that it was a Sale Deed with respect to Schedule 'A' Property in favour of the 4 th Defendant. Suppressing all this, now the Plaintiffs have come up that a case of fraud is played and facts are misrepresented while taking her signature to the Sale Deed dtd: 27.11.2002 which is far from the truth. The Plaintiffs and Defendants joined the 1 st Defendant in the execution of the Sale Deed only in the aforesaid circumstances and not because they had any manner of right title or interest in the Plaint 'A' Schedule Property. They have joined the 1st Defendant in execution of the Sale Deed as per the request of the 4th Defendant as stated above.
14. As far as Schedule 'B' Property is concerned, it was the 33 OS.No.17836/2005 exclusive property of the 1st Defendant's elder sister Smt. Papamma. By a registered Sale Deed dtd: 29.12.2003 Smt. Papamma has conveyed by way of absolute Sale Deed in respect of Plaint 'B' Schedule Property in favour of these two Defendants for valuable consideration. On the basis of the Sale Deed, mutation was made in the name of these Defendants. The Khatha was made in the name of these Defendants in respect of Schedule 'B' Property and the Defendant No.2 and 3 are in exclusive owners and possession of the property. These Defendants have constructed two residential houses in the Plaint 'B" Schedule Property and are in possession of the same in their own right. These two residential buildings which are described in Schedule 'E' and 'F' are part and parcel of the Plaint 'B' Schedule Property. In the rest of the land in 'B' Schedule Property fruit bearing trees are grown and these Defendant are in exclusive possession and enjoyment of the same.
15. The remaining items of the Suit Schedule Properties, namely Schedule 'C' 'D' and 'G' are the absolute properties of the 1st Defendant as he succeeded to the same after the death of Gedigalu Papanna. These properties are also assessed to land 34 OS.No.17836/2005 revenue and are agricultural properties and the description of these properties in the Plaint Schedule as property bearing No.46 is incorrect. Since all these properties are the exclusive properties of the 1st Defendant, the Plaintiffs cannot claim a share in any of these properties. No fraud or misrepresentation was committed by the 1st Defendant as contended in the plaint. The court fee is insufficient because the Plaintiffs have to pay court fee on the market value of the property. The reason is that all the properties are absolute properties of either the 1 st Defendant or these Defendants and the 4 th Defendant and they are in exclusive possession and enjoyment of the property. At no point of time the Plaintiffs are in possession or in joint possession of the properties. Hence, prayed to dismiss the suit.
16. After amendment of the plaint, these Defendants have filed additional written statement denying the contents of Para No.10(a) and (b) of the amended plaint and other contents are similar to the earlier written statement filed by these Defendants in respect of the Suit Schedule Properties.
17. The 4th Defendant has filed written statement contending that the suit is false, frivolous, vexatious and not 35 OS.No.17836/2005 maintainable in law or on facts. There is no cause of action for the present suit. The suit is incorrectly valued and the court fee paid is insufficient. The Plaintiffs having knowledge that the 1 st Plaintiff is a party to the Sale Deed dtd: 27.11.2002 and having sought for declaration that the same Sale Deed is illegally not binding, the Plaintiffs ought have valued the suit under Section 38 of the KC & SV Act at Rs.33,07,500/- in respect of the Schedule 'A' Property alone, being the sale consideration for which the said Sale Deed has been executed. The Plaintiffs have deliberately undervalued the suit, hence, they are not entitled for the relief. The suit is bad for non-joinder of necessary parties. The Plaintiffs have arraigned the 4th Defendant as a party to the suit solely for the purpose of attacking the Sale Deed dtd:
27.11.2002 based on various false allegations. Having sought to challenge the validity of the document, the Plaintiffs ought to have arraigned all the parties to the said document as parties to the above suit as they are necessary and proper parties. The Plaintiffs have deliberately not arraigned Smt. Sarojamma, the mother of the Plaintiffs. Smt. Sarojamma, the sister of the Plaintiffs and Smt.Papalamma, the aunt of the Plaintiff. All the 36 OS.No.17836/2005 aforementioned persons are parties to the Sale Deed dtd:
27.11.2002 and for the purpose of case, the Plaintiffs have made without making them as parties to the suit. Hence, the suit is bad for non-joinder of necessary parties. However, the Plaintiffs have no right or interest over the Schedule 'A' Property after having sold the same in its entirety in its registered Sale Deed dtd: 27.11.2002. He has denied all other plaint allegations specifically and contended that the Plaintiffs are aware of the Agreement of Sale in favour of this Defendant on 27.11.2002.
Hence, the Plaintiffs are not entitled for any relief against this Defendant as prayed for by them.
18. Subsequent to amendment, 4th Defendant filed his additional written statement and denied the Para No.10(a) and
(b) of the amended plaint and contended that suit is not properly valued and the court fee paid is incorrect. He admitted that he has purchased the Suit 'A' Schedule Property from the 1 st Defendant on 27.11.2002. Hence, prayed to dismiss the suit.
19. Again, the 4th Defendant has filed written statement on 5.4.2013 after further amendment which is similar to the other written statement and he claims exclusive title over the 37 OS.No.17836/2005 Schedule 'A' Property having purchased the same from the 1 st Defendant on 27.11.2002.
20. The 5th Defendant filed his written statement contending that this Defendant is impleaded in the suit recently and after going through the plaint averments, this Defendant has filed learnt that the Plaintiffs have filed the above suit for the relied of partition and separate possession of their alleged share in the Suit Schedule 'A' and 'G' Properties. This Defendant is interested only in Schedule 'B' Property i.e., Sy.No.18/1. Hence, whatever is stated by this Defendant is in written statement is only with reference to the aforesaid property. Therefore, this written statement covers Schedule 'E' and 'F' Properties also. This Defendant has entered into a Joint Development Agreement with the Defendant No.2 and 3 with respect to the Schedule 'B' Property to an extent of 2 acres. The Joint Development Agreement dtd: 21.6.2010 and the same is duly registered in the office of the Senior Sub-Registrar, Varthur, Bangalore. The Joint Development Agreement stipulates construction of an apartment complex by this Defendants in the property in question within as stipulated time and handing over 38 OS.No.17836/2005 the owner's share i.e., share of the Defendant No.2 and 3 in the constructed area within a stipulated time. Therefore, this Defendant undertake the work of construction of the apartment complex in the property in question. This Defendant has already spent huge amount for the purpose of starting the construction work. These Defendants are the owners and in possession and enjoyment of Schedule 'B' Property and he has verified the document and satisfied himself as per the exclusive rights of Defendant No.2 and 3 over the Property. The Defendant No.2 and 3 have purchased the Schedule 'B' Property from one Papamma through Sale Deed dtd: 29.12.2003. Accordingly mutation was made in the name of Defendant No.2 and 3 in proceedings bearing No.12/2003-04. The Defendant No.2 and 3 have also obtained conversion order in respect of entire Schedule 'B' Property on 8.5.2009. These Defendant No.2 and 3 are the absolute owners in possession of the entire Schedule 'B' Property. The Plaintiffs cannot claim any share in the same. The entire extent of Schedule 'B' Property is 3 acres 14 guntas. Only 2 acres of land in respect of which this Defendant has entered into an Joint Development Agreement with the Defendant No.2 39 OS.No.17836/2005 and 3 which is very well defined with reference to boundaries. Assuming without conceding that Plaintiffs are entitled for the relief of partition, still the remaining extent of land available in Schedule 'B' Property is more than sufficient to accommodate their share. In this view of the matter also, Plaintiffs cannot have any cause of action to proceed against this Defendant.
21. From the amended plaint, except impleading, it is clear that the Plaintiffs have not made any allegation against this Defendant. Similarly no relief is sought as against to this Defendant and there is no cause of action against this Defendant and hence, they are not entitled for any relief being asked by the Plaintiffs as against this Defendant in the present. Hence, prayed to dismiss the suit.
22. Subsequent to the amendment of the plaint, this Defendant has filed additional written statement denying the allegations made in amended Para No.10(a) and (b).
23. The Defendant No.6 and 7 filed their written statement denying all the plaint averments and further contended that Schedule 'A' Property is the self-acquired property of the 1 st 40 OS.No.17836/2005 Defendant and hence the Plaintiffs have no manner of right, title or interest in the Schedule 'A' Property. The 1 st Defendant sold the Schedule 'A' Property to the 4th Defendant under a registered Sale Deed dtd: 27.11.2002 and out of abundant caution the family members of the 1st Defendant were made parties to the Sale Deed. These Defendant No.6 and 7 are bonafide purchasers for value of portions of the Schedule 'A' Property, which were sold to them by the 4 th Defendant. The 6th Defendant purchased an extent of 2778 sq.ft., of land in the Schedule 'A' Property from the 4th Defendant for valuable consideration under a registered Sale Deed dtd: 2.7.2003. The 7th defeating has purchased an extent of 1461 sq.ft., of land in the Schedule 'A' Property from the 4 th Defendant for valuable consideration under a registered Sale Deed dtd: 27.10.2020. The Defendant No.6 and 7 are in peaceful possession and enjoyment of the property purchased by them from the 4 th Defendant. Because of the rising price of real estate in Bangalore the Plaintiffs have filed the present suit to harass the Defendant No.6 and 7 and to make unlawful gain for themselves. The Plaintiffs have not made all the parties of the 41 OS.No.17836/2005 Sale Deed dtd: 27.11.2002 as parties to the present suit and they have challenged the Sale Deed dtd: 27.11.2002 on false and frivolous grounds. Hence, the suit s bad for non-joinder of necessary parties. The Plaintiffs ought to have sought for cancellation of Sale Deed dtd: 27.11.2002. The relief of declaration that the Sale Deed is not binding on the Plaintiffs cannot be granted as they are parties to the Sale Deed dtd:
27.11.2002. The suit is not property valued and the court fee paid is insufficient. Further they have denied all the plaint allegations specifically and further contended that there is no cause of action to file the suit.
24. The Defendant No.6 and 7 after amendment filed additional written statement which is similar to the earlier written statement and they have denied the amended portion of the plaint also.
25. The 8th Defendant filed his written statement contended that this Defendant is impleaded recently and she has also come to understand whether the Plaintiffs have filed the present suit for partition and separate possession of their alleged share in the Suit Schedule Properties. This Defendant is 42 OS.No.17836/2005 the Daughter of the 1st Defendant. This Defendant also does not dispute that Plaintiffs are also daughters of the 1 st Defendant through his second wife. However, this Defendant has contended that she could have any manner of right, title or interest in respect of the Suit Schedule Properties. Neither this Defendant nor the Plaintiffs can therefore claim any share in the suit properties. The Suit Schedule Properties are the exclusive properties of the 1st Defendant acquired through his father by name Gedigalu Papanna. After the death of father of the 1 st Defendant, he along with his sister Papamma succeeded to the Suit Schedule Properties and therefore they become absolute owners of the same. This Defendant has been informed that her father i.e., the 1st Defendant has given certain properties to his sister Papamma while retaining the rest. Since the properties are the absolute properties of the 1 st Defendant and his sister Papamma, whatever arrangement or settlement that they have entered into, in which properties are divided and allotted amongst themselves, they became the absolute owners of the properties themselves. This Defendant has singed a Sale Deed executed by her father in favour of the 4 th Defendant and the 43 OS.No.17836/2005 Plaintiffs and their mother also signed the said Sale Deed. She denied all other allegations specifically. The money given by the 1st Defendant out of sale consideration is only because of love and affection towards the Plaintiffs and other Defendants i.e., family members who have joined the execution of the Sale in respect of Schedule 'A' Property.
26. The Defendant No.9 filed his written statement contending that the suit of the Plaintiffs is false, frivolous and vexatious and the same is not maintainable and the same is filed with an intention to harass this Defendant. The Schedule 'C' Property measuring 15 guntas belonged to one Muniyappa @ Papaiah and after his death the same devolved upon the 1 st Defendant as his only legal heir and the name of the 1 st Defendant entered in the revenue records and thereafter the 1 st Defendant got the Schedule 'C' Property converted for non- agricultural purpose. The 1st Defendant in order to need funds to meet medical expenses and also to meet his legal and family necessities, to clear earlier debts and for the benefit of his family sold the Schedule 'C' Property to the 4 th Defendant under a registered Sale Deed dtd: 28.7.2010. The legal heirs of the 1 st 44 OS.No.17836/2005 Defendant were made parties to the Sale Deed out of abundant caution. Therefore, it is clear that Schedule 'C' Property is the self-acquired property of the 1st Defendant and no one else other than the 1st Defendant has any right, title or interest in the Schedule 'C' Property. The 9th Defendant is a bonafide purchaser for value of a portion of the Schedule 'C' Property which is sold to him by the 4th Defendant. This Defendant has purchased to an extent of 6346 sq.ft., of land in Schedule 'C' Property from the 4th Defendant for valuable consideration under a registered Sale Deed dtd: 9.9.2011. From the date of purchase he is the absolute owner and in possession of the same. The suit of the Plaintiffs is not properly valued and the court fee paid is insufficient. The suit of the Plaintiffs is bad for non-joinder of necessary parties. He denied all other averments specifically.
27. Subsequent to amendment, Defendant No.9 filed additional written statement and denied the amended portion also.
28. The 10th Defendant filed her written statement contended that she is the elder sister of the 1 st Defendant. Defendant No.11 to 14 are the children of Defendant No.10. The 45 OS.No.17836/2005 Defendant No.1 and 10 are the children of Papanna. Papanna died in the year 1949. The written statement of this Defendant is also similar to the written statement of Defendant No.8. She has contended that Schedule 'E' and 'F' Properties are not independent properties, but they are portions of Plaint 'B' Schedule Property. There was family arrangement between the Defendant No.1 and Defendant No.10 on 20.1.1991. On the basis of which khatha was changed in the name of Defendant No.10. All the Suit Schedule Properties are the absolute properties of Papanna, to which after his death the 1 st Defendant has succeeded and hence the Plaintiffs cannot claim any sahre in the Suit Schedule Properties.
29. Subsequent to amendment, Defendant No.10 filed additional written statement denying the further allegations made by the Plaintiffs by way of amendment. The Defendant No.10 to 14 adopted the written statement filed by the Defendant No.10.
30. On the basis of above pleadings, the following issues have been framed:
46 OS.No.17836/2005
ISSUES
1) Whether the Plaintiffs prove that the suit properties are the ancestral joint family properties liable for partition?
2) Whether the Plaintiffs are entitled for 1/5th share each in the suit properties?
3) Whether the Plaintiffs prove that the sale deed dtd: 27.11.2002 is obtained by playing fraud and misrepresentation, the same is not binding on Plaintiffs?
4) Whether suit is valued properly and court fee paid is sufficient?
5) Whether the Defendant No.1 to 3 proves
that all the suit properties are their
exclusive properties?
6) What order or decree?
ADDITIONAL ISSUES
1) Whether the Plaintiffs prove that the Sale Deed dtd: 28.7.2010 executed by Defendant No.2 & 3 in favour of Defendant No.7 and the Sale Deed dtd: 27.11.2002 in favour of Defendant No.6 are not binding on the Plaintiffs?47 OS.No.17836/2005
2) Whether the Plaintiffs further proves that the JDA dtd: 21.6.2010 by Defendant No.2 & 3 with D.5 dtd: 7.7.2010 is not binding on the Plaintiffs?
3) Whether the Plaintiffs are entitled for mesne profits?
31. To prove the case of the Plaintiff, the Plaintiff No.1 got examined herself as PW.1 and one more witness as PW.2 and got marked documents as per Ex.P.1 to Ex.P.57 and closed her side. The Defendant No.2 got examined himself as DW.1 and four more witness as DW.2 to DW.5 and got marked documents as per Ex.D.1 to Ex.D.29 and closed his side.
32. Heard both the sides.
33. My findings to the above issues are as follows:
Issue No.1 : Partly in the Affirmative.
Issue No.2 : Partly in the Affirmative.
Issue No.3 : In the Negative Issue No.4 : In the Negative.
Issue No.5 : In the Negative.48 OS.No.17836/2005
Addl.Issue No.1 : Partly in the Affirmative. Addl.Issue No.2 : In the Negative.
Addl.Issue No.3 : Partly in the Affirmative. Issue No.6 : As per final order for the following:
REASONS
34. Issue No.1 to 3 and 5:- All these issues are inter- related and hence answered in common in order to avoid the repetition of facts.
35. The present suit is filed by the Plaintiff against the Defendants for the relief of partition and separate possession of their share in the Suit Schedule Property and also for declaration that the Sale Deed dtd: 27.11.2002, Sale Deed dtd: 28.7.2010, Sale Deed dtd: 27.10.2007, Sale Deed dtd: 2.7.2003 in respect 'A' Schedule Property, Joint Development Agreement dtd:21.6.2010 registered on 7.7.2010, Sale Deed dtd: 9.9.2011, Sale Deed dtd: 29.12.2003 are not binding upon the Plaintiffs and for mesne profits and other reliefs, on the ground that all the Suit Schedule Properties are joint family properties. The 49 OS.No.17836/2005 Plaintiffs, Defendant No.1 to 3, 8, 10 to 14 constituted joint family. From the pleadings of both the parties it is clear that there is no dispute regarding the relationship between the above said parties i.e., family members and also it is undisputed fact that originally the Suit Schedule Property belongs to the father of the 1st Defendant Late Papanna.
36. From the pleadings, it is clear, as far as the relationship between the Plaintiffs, Defendant No.1 to 3, 5, 8, 10 to 14 is concerned, there is no dispute. As already stated the father of the 1st Defendant is having the Suit Schedule Property in his name. The Plaintiffs are claiming that the Suit Schedule Properties are the joint family properties and they have got their respective shares in all the Suit Schedule Properties. The Defendants are claiming that only the Defendant No.1 is entitled for holding the Suit Schedule Properties as of his own and no other family members of the Defendant No.1 are having respective right over the Suit Schedule Properties.
37. The Plaintiff No.1 and 2 are the daughters of 1 st Defendant through his 2nd wife Smt. Sarojamma. The Defendant No.2 and 3 are the sons of 1st Defendant through his deceased 50 OS.No.17836/2005 wife Mahalakshmamma. The Defendant No.4 to 7 are the purchasers of the Suit Schedule Property. The Defendant No.8 is the daughter of 1st Defendant through his 1st wife and Defendant No.10 is the elder sister of Defendant No.1. The Defendant No.9 is also the purchaser of the portion of the Suit Schedule Property. The Suit Schedule Properties are described as Schedule 'A' to 'G'. The Schedule 'E' and 'F' Properties are the part of the 'B' Schedule Property itself is undisputed fact. In view of the contention taken by both the parties in the present case, this Court is of the view that it is proper to analyze the pleadings and contentions taken by both the parties and the evidence produced by both the parties in respect of each of the Suit Schedule Property for the sake of convenience.
38. As far as the 'A' Schedule Property is concerned, it is described as land bearing Sy.No.44/8B, situated at Yamalur Village, Varthur Hobli, Bangalore South Taluk (Now Bangalore East Taluk) Bangalore, measuring 1 acre 11 guntas and bounded on the East by : Channel, West by : Private Property, North by :
Property bearing Sy.No.44/8a, owned by M/s Epsilon Ventures Pvt., Ltd., and South by : Survey No.44/8c, owned by 51 OS.No.17836/2005 Mr.Nanjappa. From this contention taken by the Plaintiffs and the Defendants, it is clear that as far as the identity of 'A' Schedule Property is concern, there is no dispute. The Plaintiffs are contending that they have got equal share in the 'A' Schedule Property as the Suit Schedule Properties were owned by their grand-father and Defendant No.1 and other family members succeeded to the said properties. The 1 st Plaintiff got married in the year 2002. The Plaintiffs were demanding their separate share in the Suit Schedule Property from the 1 st Defendant. But, the 1st Defendant goes on postponing the same. Subsequently, on 27.11.2002 the Defendant No.1 to 3 called the Plaintiff to the Sub-Registrar Office by stating that they want to get executed Partition Deed in respect of their family properties. But, thereafter, they have not give any share to the Plaintiffs and in the first week of September 2005 they came to know that the Defendant No.1 to 3 in the guise of executing Partition Deed, the Defendant No.1 to 3 took signatures of Plaintiffs and they have actually sold the 'A' Schedule Property to the 4 th Defendant. The said Sale Deed is obtained by misrepresented to the Plaintiff and hence the same is not binding on the Plaintiffs. They have also 52 OS.No.17836/2005 claimed that no consideration amount was paid by the Defendant No.1 to 3 to the Plaintiffs. They are contending that the Defendants by playing fraud and misrepresentation obtained the signature of the 1st Plaintiff and sold the 'A' Schedule Property in favour of the 4 th Defendant. On the contrary, the Defendant No.1 to 3 contended that only the Defendant No.1 is having title over the 'A' Schedule Property, only because the purchaser insisted that all the children of the 1st Defendant should sign the Sale Deed, they took the signature of the Plaintiff and they have paid the consideration amount to the Plaintiff and their mother Smt. Sarojamma. The contention taken by the Plaintiff that the Sale Deed was obtained from the Plaintiff by misrepresentation and by playing fraud is denied. Admittedly, the father of the 1st Defendant died on 2.5.1949. On that day, only the Defendant No.1 was the sole surviving coparcener and Defendant No.10 being the daughter of the deceased Papanna, she was not coparcener and she was not acquired any right over the properties of the Papanna. The 1 st Defendant is contending that since he is the sole surviving coparcener as on the date of death of his father Papanna on 53 OS.No.17836/2005 2.5.1949, he is the absolute owner of all the properties, succeeded by him from his father Papanna. There was no joint family after the death of Papanna, as the Defendant No.1 was the sole surviving coparcener and hence the other Defendants or Plaintiffs cannot claim any share in the properties succeeded by Defendant No.1 from his father. As on the date of filing the present suit, the age of the Plaintiff No.1 and 2 is shown in the cause title of the plaint, the 1 st Plaintiff was aged about 22 years and the 2nd Plaintiff was aged about 20 years. From this it is clear that as on the date of death of Papanna i.e., on 2.5.1949 the Plaintiffs were not at all born. It is admitted fact that Papanna was having only one son and daughter i.e., Defendant No.1 and 10. Since the Defendant No.1 is the only coparcener, he succeeded the properties of Papanna after his death. But, thereafter, it is the contention of the 1st Defendant that no property was given to Defendant No.10 after the death of his father and hence on request made by 10 th Defendant he has given 'B' Schedule Property to the Defendant No.10 by family arrangement in the year 1990-1991 and the same was also reduced into writing as Palu Parikath dtd:20.1.1991 and the 54 OS.No.17836/2005 same was marked as Ex.D.18. The said document is unregistered document and after the objection raised by the Plaintiff's Counsel for marking the said document, the said document was impounded and duty and penalty of Rs.61,000/-
was paid by the Defendant No.1 on the said document. The Plaintiffs are claiming share over the property as per Section 6 of Hindu Succession Act. The Hindu Succession Act came into force on 9.9.2004 and Section 6 was amended in the year 2004. The Plaintiffs have disputed Ex.D.18 and they have also made an attempt to prove the said document as concocted document and got marked the document obtained under RTI as per Ex.P.52 to Ex.P.57. On the basis of the said document it was contended by the Plaintiffs that the stamp paper used for Ex.D.18 is the fake stamp paper and the stamp vendor has not purchased the said stamp paper through proper authority and the same was created by Defendant No.1, subsequent to filing the present suit, only for the purpose of this suit in order to deny the Plaintiffs share over the 'B' Schedule Property. Ex.D.18 is concern, it is in respect of 'B' Schedule Property and the same can be considered at the time of discussing about 'B' Schedule 55 OS.No.17836/2005 Property. As far as 'A' Schedule Property is concern, it is undisputed fact that the Sale Deed was executed on 27.11.2002 in favour of Defendant No.4. The Plaintiffs are contending that the signature of the Plaintiff No.1 and his mother was obtained by fraud and misrepresentation. In the present case, the Plaintiff except examining Plaintiff No.1 as PW.1 and her mother as PW.2 no other evidence is produced by the Plaintiff to prove the said fraud or misrepresentation. Even otherwise, if any amount is not paid by the Defendants to the Plaintiffs out of the sale consideration then they are at liberty to claim the same from the Defendant No.1 to 3. But, they cannot dispute the execution of the Sale Deed in favour of Defendant No.4. The Defendant No.4 is the bonafide purchaser of the Suit Schedule Property from the Plaintiffs and Defendant No.1 to 3 and other family members. The Plaintiff is claiming that the Sale Deed executed by Defendant No.1 to 3 in favour of Defendant No.4 as per Ex.P.1 is not binding on them. When they are parties to Ex.P.1 they cannot said that the Ex.P.1 is not binding on them. If they want to challenge the said Sale Deed they should have sought for cancellation of Ex.P.1 on the ground of fraud and 56 OS.No.17836/2005 misrepresentation by paying court fee on the market value of the 'A' Schedule Property. But, in the present case, the only claim of the Plaintiffs that Ex.P.1 is not binding on them, as the same was obtained by fraud and misrepresentation. But, the said fraud and misrepresentation has to be proved by the Plaintiffs by producing cogent evidence. In the absence of Plaintiff's producing any evidence to prove that their signature was taken on Ex.P.1 by fraud or misrepresentation cannot be accepted. The Plaintiff No.2 was minor at the time of Ex.P.1, Plaintiff No.2 was represented by PW.2 her mother as a guardian at the time of the said Sale Deed. Under these circumstances, the Plaintiff No.1 and 2 are the parties to the Ex.P.1 and they cannot claim that the said Sale Deed is not binding upon them on the ground of fraud or misrepresentation, in the absence of any evidence in that regard. The Plaintiffs have not sought for cancellation of the said Sale Deed on the said ground. Even otherwise, as per the amended Section 6 of Hindu Succession Act the alienation made prior to 20.12.2004 the daughters cannot claim any share in the suit properties. Admittedly, Defendant No.1 was the kartha of the joint family and he has 57 OS.No.17836/2005 sold the suit property to Defendant No.4 along with other family members on 27.11.2002 i.e., prior to 20.12.2004. Hence, the Plaintiffs cannot claim any share in the 'A' Schedule Property is concerned. At the most, if no consideration amount was paid to the Plaintiff No.1 and 2 or their mother, they are at liberty to claim the same from the other executants of the said Sale Deed dtd: 27.11.2002. On this ground also the Plaintiff cannot claim any share in the 'A' Schedule Property. The Plaintiffs are claiming that 'A' Schedule Property is the ancestral property of Papanna. The Defendants are claiming that 'A' Schedule Property is the absolute property of Papanna. In support of their contention the Defendants are claiming that in Ex.P.1 there is a reference that Muniyappa @ Papanna i.e., father of the 1 st Defendant has acquired the said property under Sale Deed dtd: 30.7.1942 registered as Document No.454, Book No.1, Volume No.595, Page No.118 to 120 in the Office of the Sub-Registrar Bangalore South Taluk. On this ground, the Defendants are claiming that it is the self-acquired property of Muniyappa @ Papanna. In Ex.P.1 it is also mentioned that after the death of his father the Defendant No.1 has became the absolute owner of the 'A' 58 OS.No.17836/2005 Schedule Property inheriting from his father under Inheritance Certificate No.2/1977-1978 and registered as kathedar in all the revenue records with respect to 'A' Schedule Property. The Plaintiffs are contending that no such Sale Deed dtd: 30.7.1942 is existing. But, the 'A' Schedule Property is succeeded by the father of the 1st Defendant from his ancestors. Though in that regard no pleadings and no documentary evidence produced by the Plaintiffs or the Defendants to show that Papanna has acquired the Schedule Property under the Sale Deed dtd:
30.7.1942. Neither the Plaintiffs, nor the Defendants have produced the said Sale Deed dtd: 30.7.1942. Even otherwise, after the death of father of 1st Defendant, the 1st Defendant being the sole coparcener has succeeded to all the properties of Papanna. But, subsequently he has executed Partition Deed between himself and his elder sister Defendant No.10 and 'B' Schedule Property was given to Defendant No.10. Though the said fact is disputed by the Plaintiff in the present suit, the fact remains that the Defendant No.1 has succeeded to the properties of his father as sole coparcener. The contention of the Defendant that even after the birth of other Plaintiffs and other 59 OS.No.17836/2005 children of the 1st Defendant, he remain as the absolute owner of the properties succeeded by him from his father cannot be accepted. It is true on the date of death of father of the 1 st Defendant, 1st Defendant being the sole coparcener of having absolute right over the property succeeded by him through his father. However, after the birth of the children to the 1 st Defendant they acquired right by birth in the properties through their grand-father. Hence, the Defendant No.1 cannot claim that even after the birth of children to him, he is the absolute owner of the properties inherited by him from his father.
39. As far as property referred in the Plaint Schedule as Schedule 'B' 'E' and 'F' properties are concern, it is admitted fact that Schedule 'B' Property was standing in the name of father of the 1st Defendant Late Papanna which bears Sy.No.18/1 measuring 3 acres 14 guntas situated at Kempapura Village, Bangalore East Taluk and also it is admitted fact that Schedule 'E' and 'F' Properties are the portions of Schedule 'B' Property wherein the Defendant No.2 and 3 have constructed house and residing therein. All these facts are admitted facts in the present case. The Defendant No.1 is claiming that Schedule 'B' Property 60 OS.No.17836/2005 is also succeeded by him as sole coparcener as contended by him in respect of Schedule 'A' Property as mentioned above and claiming that except the Defendant No.1 no other persons are having right over the Suit Schedule Property. As on the date of death of father of the 1st Defendant, only the Defendant No.1 was the sole coparcener. It is admitted fact that as on that day the Defendant No.10 who is the elder sister of the 1 st Defendant was also having certain right over the property. DW.1 has contended that in the year 1991 as per Ex.D.18 the Schedule 'B' Property has given to the Defendant No.10. The Plaintiff during the course of trial has much contended in respect of the said document, contending that the said document is created document, drafted on fake stamp paper and the said document is created by the Defendant No.1 only to deprive the Plaintiff from their legitimate share in the Suit Schedule Properties. In that regard several documentary evidence has been produced by the Plaintiff in the present case. Except the Plaintiffs, the Defendant No.1 and all other family members are admitted the fact of giving Schedule 'B' Property by the 1 st Defendant to the 10th Defendant under the Palu Parikath as per Ex.D.18. It is true, 61 OS.No.17836/2005 the said document is unregistered document but the said document is acted upon by the 10th Defendant and the khatha was changed in the name of 10th Defendant on the basis of the said document and subsequently Defendant No.10 along with her children sold the Schedule 'B' Property to the Defendant No.2 and 3. The said Sale Deed is dtd: 29.12.2003. The said Sale Deed was executed by Defendant No.10 and her children Defendant No.11 to 14 in favour of Defendant No.2 and 3 and the said document is marked as Ex.P.15 in the present case. The discussion made in respect of Schedule 'A' Property was also holds good in respect of Schedule 'B' Property also. Admittedly, Schedule 'B' Property belongs to the father of the Defendant No.1 Late Papanna and after his death Defendant No.1 succeeded to the said property as sole coparcener and subsequently Defendant No.1 has given Schedule 'B' Property to his elder sister Defendant No.10 and in turn Defendant No.10 has sold the Schedule 'B' Property along with her children in favour of Defendant No.2 and 3. As already discussed, though the Defendant No.1 was the sole coparcener as on the date of death of his father, immediately after the birth of the Plaintiff 62 OS.No.17836/2005 and other children of the Defendant No.1, his sole surviving coparcenery character is diluted and the share of the children of the 1st Defendant was determined. As per the decision reported in 1988 AIR 845 between Dharma Shamrao Agalawe V/s Pandurang Miragu Agalawe & Ors., it is well settled that the right of the coparcener will not remain static and the same is increased on the death of one of the coparcener and decreases on the event of birth or adoption of any children in the family of the coparcener. In the present case, immediately after the birth of Plaintiff and the other children of the 1st Defendant, the character of Defendant No.1 as sole coparcener will vanish and the right of the Defendant No.1 and his children is determined by law. Under these circumstances, the Defendant No.1 cannot claim that he is the absolute owner of the Schedule 'B' 'E' and 'F' Properties, even on the date of birth of the Plaintiff and other children of the Defendant No.1. However, in the year 1991 itself i.e., well before filing the present suit i.e., at undisputed point of time Defendant No.1 has given property to Defendant No.10 who is elder sister on her request in the property of her father. Even if when the contention of the Plaintiff is accepted that 63 OS.No.17836/2005 Ex.D.18 is the created and concocted document, but the same was acted upon and the Schedule 'B' Property is the property given by Defendant No.1 as her share in the property of his father. Under Section 14 of Hindu Succession Act also the right of the Defendant No.10 over the Schedule 'B' Property is protected.
40. According to Section 14 of Hindu Succession Act which reads as follows:-
14. Property of a female Hindu to be her absolute property - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation - In this sub-section, "Property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of 64 OS.No.17836/2005 maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or be her owner skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act.
Section (2) states - Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
41. In the present case, the property was given by the Defendant No.1 to the Defendant No.10 considering her request as she wants share in her father's property and the Defendant No.1 has given 'B' Schedule Property along with 'E' and 'F' properties which are the part of Schedule 'B' Property under 65 OS.No.17836/2005 Ex.D.18 and the said Defendant No.10 has acted upon the said document and khatha in respect of the Schedule 'B' Property was changed in her name on the basis of Ex.D.18. Under these circumstances, the Schedule 'B' Property including 'E' and 'F' Property is the absolute property of Defendant No.10 as described under Section 14 of Hindu Succession Act also and hence the Plaintiff or any other family members can claim any share in the Schedule 'B' Property including 'E' and 'F' Schedule Properties. Apart from this, as per Section 6 of Hindu Succession Act any alienation made prior to 20.12.2004 is protected. The proviso of amended Section 6 of Hindu Succession Act states that provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004. In the present case, Defendant No.10 has sold the Schedule 'B' Property including 'E' and 'F' Properties to the Defendant No.2 and 3 by Sale Deed dtd:
29.12.2003 i.e., prior to 20.12.2004 and hence the Plaintiff cannot claim any share in the Schedule 'B' Property including 'E' and 'F' properties which are the part of Schedule 'B' Property. 66 OS.No.17836/2005
42. As far as Schedule 'C' 'D' and 'G' Properties are concerned, it is admitted fact that the 1 st Defendant's father Papanna @ Muniyappa was the owner of the said proeprties. The Defendant No.1 is claiming in the similar way as he has claimed in respect of 'A' and 'B' Schedule Properties that as he is the sole coparcener as on the death of his father Papanna. But, as already discussed above, the Defendant No.1 was the sole coparcener as on the date of death of his father Papanna, his sole coparcenership was diluted after the birth of his children. Neither the Plaintiffs, nor the Defendants have produced any evidence to show that 'C' 'D' and 'G' Properties are the properties succeeded by Papanna @ Muniyappa through his ancestors. However, the Plaintiffs are claiming that 'C' 'D' and 'G' Properties were held by Papanna @ Muniyappa as the joint family properties and after his death the Plaintiffs and Defendants have got share in the said properties has to be accepted in the absence of any evidence produced by the Defendant No.1 to show that 'C' 'D' and 'G' Schedule Properties are the exclusive properties of Papanna @ Muniyappa and after his death, even after the birth of Plaintiffs and other children of 67 OS.No.17836/2005 the 1st Defendant, the 1st Defendant is the absolute owner. During the pendency of the present suit, portion of 'C' Schedule Property was sold by the 1st Defendant and others in favour of the 4th Defendant under the registered Sale Deed dtd: 28.7.2010 which is marked at Ex.P.3 in the present case. Another portion of 'C' Schedule Property was sold in favour 4 th Defendant and the 4th Defendant has sold the said property in favour of Defendant No.9 under the registered Sale Deed dtd: 9.9.2011 which is marked as Ex.P.5 in the present case. Both these Sale Deeds were executed during the pendency of the present suit and hence both the Sale Deeds are hit by the principles of lis- pendency. In view of the discussion made above, it is clear that the 1st Defendant cannot claim absolute ownership over the 'C' 'D' and 'G' Schedule Properties after the birth of the Plaintiffs and other children to him. This Court is of the view that Defendant No.4 has not acquired absolute right over the portion of the 'C' Schedule Property purchased by him under Ex.P.3 and Ex.P.5. The Plaintiffs have got their legitimate share in the 'C' 'D' and 'G' Schedule Properties are concern. The Plaintiff No.1 and 2 are the daughters of the 1 st Defendant through his 2nd wife 68 OS.No.17836/2005 Sarojamma, Defendant No.2 and 3 are the sons of 1 st Defendant through his deceased 1st wife Mahalakshmamma, Defendant No.8 is the daughter of 1st Defendant through his 1st wife, Defendant No.10 is the sister of Defendant No.1 and she has already taken share in the properties of Papanna @ Muniyappa under Ex.D.8 as already stated above and she has also exercised her right of ownership over the 'B' Schedule Property and sold the same to Defendant No.2 and 3. Under these circumstances, the Defendant No.10 is not entitled for any share in the 'C' 'D' and 'G' Schedule Properties and Defendant No.1, Plaintiff No.1 and 2, Defendants No.2, 3 and 8 are entitled for 1/6th share each in the 'C' 'D' and 'G' Schedule Properties. In view of the above discussion, Schedule 'A' Property and Schedule 'B' Property and also 'E' and 'F' Properties which are the part of Schedule 'B' Property are not available for partition as on the date of filing of the present suit and the said properties were sold prior to 20.12.2004. As already stated above the Plaintiffs cannot claim any share in the said properties. As far as 'C' Schedule Property is concern, in respect of the Sale Deeds executed by the 1st Defendant and others in 69 OS.No.17836/2005 favour of Defendant No.4 in respect of the portions of 'C' Schedule Property, the said Sale Deeds are not binding on the Plaintiffs' share. The Plaintiffs have failed to prove that the Sale Deed dtd: 27.11.2002 executed by all the children of Defendant No.1 along with Defendant No.1 in favour of Defendant No.4 is obtained by playing fraud and misrepresentation as alleged by the Plaintiffs in the present case. In view of the discussion made above it is clear that the Defendants have failed to prove that all the Suit Schedule Properties are the exclusive properties of Defendant No.1. Under these circumstances, the Plaintiffs along with Defendant No.1 to 3 and 8 are entitled for 1/6th share each in Schedule 'C' 'D' and 'G' Properties and Plaintiffs are not entitled to claim any share in Schedule 'A' and 'B' Properties. With these observation, I answer Issue No.1 Partly in the Affirmative, Issue No.2 Partly in the Affirmative, Issue No.3 in the Negative and Issue No.5 in the Negative.
43. Additional Issue No.1 and 2:- The Plaintiffs are contending that the Sale Deed executed by the 1 st Defendant and others in favour of 4th Defendant in respect of portion of 'C' Schedule Property as per Ex.P.3 is not binding on them. The 70 OS.No.17836/2005 Plaintiffs have also contended that the Sale Deed executed by 4th Defendant in favour of 9 th Defendant i.e., in respect of 'A' Schedule Property is not binding upon them. As already discussed above, it is clear that the Plaintiffs are entitled to claim share only in respect of Schedule 'C' 'D' and 'G' Properties and not entitled for any share in Schedule 'A' and 'B' Properties along with 'E' and 'F' Properties which are part of 'B' Schedule Property. The Sale Deed executed by the 1 st Defendant and others in respect of 'C' Schedule Property as per Ex.P.3 is not binding upon the Plaintiffs and they are entitled for share in the said properties. As far as Ex.P.5 is concerned i.e., in respect of 'A' Schedule Property, the Plaintiffs cannot claim any share in the said property as already discussed above.
44. The Plaintiffs have also contended that the Joint Development Agreement executed by Defendant No.2 and 3 in favour of Defendant No.5 as per Ex.P.2 is not binding upon them. Ex.P.2 is in respect of 'B' Schedule Property, as already discussed above, 'B' Schedule Property is the absolute property of the Defendant No.2 and 3 and purchased the same from Defendant No.10 after the Defendant No.10 allotted share in the 71 OS.No.17836/2005 property of her father by the Defendant No.1 as per Ex.D.18. The transaction made by Defendant No.2 and 3 in respect of 'B' Schedule Property, the Plaintiffs have no right to question the same. Any transaction made by the Defendant No.1 to 3 and other family members in respect of Schedule 'A' 'B' 'E' and 'F' properties, the Plaintiffs cannot claim any share in the said property and in respect of 'C' 'D' and 'G' Properties, transaction made by the Defendants after filing the present suit are not binding upon the Plaintiffs and the Plaintiffs are entitled for share in the said properties. Hence, I answer Additional Issue No.1 Partly in the Affirmative and Additional Issue No.2 in the Negative.
45. Issue No.4:- The Defendants have contended that the suit is not properly valued and the court fee paid is not proper, on the ground that Plaintiff No.1 and her mother are parties to the Sale Deed as per Ex.P.1 in respect of 'A' Schedule Property executed in favour of Defendant No.4 and they are claiming that the said Sale Deed is not binding upon them. Since the said Sale Deed is also executed by the Plaintiffs also, they cannot claim that the said Sale Deed is not binding upon them, they should 72 OS.No.17836/2005 seek for cancellation of the said Sale Deed. In this regard, the Advocate for Defendants has relied on the decision reported in (2010) 12 SCC 112 between Suhrid Singh Alias Saedol Singh V/s Randhir Singh & Others wherein at Para No.7 it is held that :
7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brother. A executes a Sale Deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed 73 OS.No.17836/2005 executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.
46. From this it is clear that the Plaintiff No.1 being the 74 OS.No.17836/2005 party to the Sale Deed executed in favour of the Defendant No.4, she cannot claim that the said Sale Deed is not binding upon her. But she has to seek for cancellation of the Sale Deed by paying court fee as per law. In the present case, the Plaintiff has paid court fee only for the relief of partition and contended that the Sale Deed is not binding upon them. Under these circumstances, the court fee paid by the Plaintiff in respect of the prayer made in respect of the Sale Deed executed by the Plaintiffs and the Defendants in favour of Defendant No.4, the court fee paid by them is not property. Under these circumstances, I answer Issue No.4 in the Negative.
47. Additional Issue No.3:- The Plaintiffs are claiming mesne profits on the basis of the pleadings made in the present suit. The Defendants are contending that the Plaintiffs are not entitled for any share and hence they are not entitled for mesne profit also. However, as per the discussion made above, the Plaintiffs are entitled to claim share in 'C' 'D' and 'G' Properties. The Plaintiffs are entitled for mesne profit. But, in the present case, no evidence is produced by the Plaintiff to show what is the income from the said properties and how much they are 75 OS.No.17836/2005 entitled for in the same. In the absence of any evidence the said claim of the Plaintiffs cannot be decided in the present case. However, the Plaintiffs are entitled to claim the mesne profit subsequently by enquiry under Order XX Rule 12 of CPC. With this observation I answer Additional Issue No.3 Partly in the Affirmative.
48. Issue No.6:- From the discussion made above and the findings of this Court that the Plaintiffs are not entitled for any share in the Schedule 'A' and 'B' Properties including 'E' and 'F' Schedule Properties which are the part of 'B' Schedule Property and the Plaintiffs are entitled only for the share in Schedule 'C' 'D' and 'G' Properties to the extent of 1/6th share. The transaction made by the Defendants in respect of 'A' and 'B' Schedule Properties cannot be questioned by the Plaintiffs and they cannot claim that they have got any share in the said Schedule Properties and their right is effected. However, the transaction made by the Defendants in respect of Schedule 'C' 'D' and 'G' Properties after filing the present suit, the said transactions are hit by the principles of lis-pendency and the said transaction are not binding upon the Plaintiffs and the 76 OS.No.17836/2005 Plaintiffs are entitled for their respective share as stated above.
49. The Advocate for Plaintiffs has relied on the following decisions:-
(i) Civil Appeal No.Diary No.32601/2018 dtd: 11.8.2020 between Vineeta Sharma V/s Rakesh Sharma & Ors.
(ii) 2011(5) KCCR Page 4497 (SC) between Ganduri Koteshwaramma & Another V/s Chakiri Yanandi and another.
(iii) AIR 2018 SC 3152 between Shyam Narayan Prasad V/s Krishna Prasad and others.
(iv) AIR 2013 SC 3525 between Rohit Chauhan V/s Surinder Singh & Others.
(v) (2006) 8 SCC 581 between Sheela Devi and others V/s Lal Chand and another.
(vi) 2016 (4) KCCR 3457 (DB) between Gangadhar and another V/s Somashekhar and others.
(vii) 1966 SC 1879 between Eramma V/s Verrupanna and others.
(viii) ILR 1998 KAR 2127 between Vadde Sanna Hulugappa 77 OS.No.17836/2005 and others V/s Vadde Sanna Hulagappa and others.
(ix) ILR 1985 Page 1115 between Ganapati Santaram Bhosale V/s Ramachandra Subbarao Kulkarni.
(x) ILR 2015 KAR 4715 between Venkataswamy and others V/s Smt. Annemma.
(xi) AIR 2016 Karnataka 4 between Smt. Lokamani and others V/s Smt. Mahadevamma and others.
(xii) 2014 (5) KCCR 906 between Nagarathnamma V/s Rangegowda and others.
(xiii) 2010 (2) KLO 1281 dtd: 19.3.2010 between Pushpalatha N.V V/s Padma and others.
(xiv) 2015 (5) KCCR S.N. 221(1) (B) between Vijayalakshmi and others V/s Amranath Kumar.
50. The Advocate for Defendant No.3, 5, 8, 10 to 14 has relied on the following decisions:-
(i) AIR 2013 Delhi 20 between Dr. Prem Bhatnagar V/s Ravi Mohan Bhatnagar.
(ii) AIR 2007 SC 1808 between Makhan Singh V/s Kulwant 78 OS.No.17836/2005 Singh.
(iii) AIR 2009 Gujarat 184 between Virlkumar Natvarlal Patel V/s Kapilaben Manilal Jivanbhai.
(iv) AIR 2010 Karnataka 124 between Pushpalatha N.V. V/s V. Padma.
(v) AIR 2003 SC 3800 between D.S. Lakshmaiah V/s Balasubramanyam.
(vi) AIR 1995 Karnataka 35 between The Vijaya College Trust V/s The Kumuta Co-Operative Arecanut Sales Society Ltd., and another.
The Advocate for Defendant No.4 has relied on the following decisions:-
(i) (2019) 2 SCC 727 between Jamila Begum (dead) Through Legal heirs V/s Shami Mohd(dead) Through Legal heirs.
(ii) (2010) 12 SCC 112 between Suhrid Singh Alias Saedol Singh V/s Randhir Singh and Others.
I have gone through all the said decisions. In view of the discussion made above, I proceeds to pass the following :- 79 OS.No.17836/2005
ORDER The suit of the Plaintiffs is decreed in part with costs. The Plaintiffs claim in respect of Schedule 'A' and 'B' Properties including 'E' and 'F' Properties is hereby rejected.
The Plaintiff No.1 and 2 along with Defendant No.1 to 3 and Defendant No.8 are entitled for 1/6th share each in the Suit Schedule 'C' 'D' and 'G' Properties.
The Plaintiffs are not entitled to claim any share in respect of the transaction made by the Defendants in respect of 'A' 'B' 'E' and 'F' Properties. But, the Plaintiffs are entitled to claim their share as stated above in respect of the transaction made by the Defendants in respect of 'C' Schedule Property.
The mesne profits in respect of 'C' 'D' and 'G' Properties has to be calculated and determined consequently under Order XX Rule 12 of CPC.
Draw preliminary decree accordingly.
(Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 27th day of November 2020].
[Krishnaji Baburao Patil], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.80 OS.No.17836/2005
SCHEDULE "A"
All that constructed land bearing Survey No.44/8B, situated at Yamalur Village, Varthur Hobli, Bangalore South Taluk (Now Bangalore East Taluk) Bangalore, measuring 1 acres 11 guntas and bounded on:
East by : Channel. West by : Private Property.
North by : Property bearing Sy.No.44/8a, owned by M/s Epsilon Ventures Pvt., Ltd.
South by : Survey No.44/8c, owned by Mr.Nanjappa.
SCHEDULE "B"
Land bearing No.18/1, measuring 3 acres 14 guntas, situated at Kempapura Village, Varthur Hobli, Bangalore East Taluk, Bangalore, bounded on:
East by : Land belonging to Ramanappa. West by : Kodihalli. North by : Land belonging to Sakamma. 81 OS.No.17836/2005 South by : Kempapura Main Road. SCHEDULE "C" Land bearing No.101/3, measuring about 15
guntas, situated at Amani Belandur Khane, Varthur Hobli, Bangalore East Taluk, Bangalore, and bounded on:
East by : Property belonging to
Bala Muniswamappa.
West by : Property belonging to Anniahappa.
North by : Property belonging to Gopal
(Krishnappa).
South by : Property belonging to Kapil.
SCHEDULE "D"
Property bearing Katha No.46, situated at
Yamalur Village, being an residential house
measuring about 60 X 70 ft., and bounded on:
East by : House belonging to Bala
Muniswamapp.
West by : 10 feet Road.
North by : 15 feet Road.
South by : Property of Baiyappa.
82 OS.No.17836/2005
SCHEDULE "E"
Residential house existing in a portion of
property bearing Survey No.18/1, consisting of ground and first floor, measuring about 40 ft X 60 ft., situated at Kempapura Village, Varthur Hobli, Bangalore East Taluk and bounded on:
East by : Portion of 'B' Schedule Property.
West by : Portion of 'B' Schedule Property.
North by : Portion of 'B' Schedule Property.
South by : Vacant place of Portion of 'B' Schedule
Property and Kempapura Main Road.
SCHEDULE "F"
Residential premises construction in a portion of Sy.No.18/1, consisting of four tenements, measuring about 20 ft X 80 ft situated at Kempapura Village, Bangalore and bounded on:
East by : Portion of 'B' Schedule Property
and property of Ramanappa.
West by : Portion of 'B' Schedule Property.
83 OS.No.17836/2005
North by : Portion of 'B' Schedule Property
and property of Sakamma.
South by : Portion of 'B' Schedule Property
and Kempapura Main Road.
SCHEDULE "G"
Vacant site at Yamalur Village limits, measuring about 45 ft X 50 ft and bounded on:
East by : Vacant property belonging to Almailamma.
West by : Passage.
North by : House owned by Gopalappa.
South by : House belonging to Jogi Yellappa.
ANNEXURE
1. List of witnesses examined for the Plaintiffs:-
P.W.1 : Smt. Mahalakshmi.
P.W.2 : Smt. Sarojamma.
2. List of documents marked:-
Ex.P 1 : Certified copy of the Sale Deed
dtd:27.11.2002.
Ex.P 2 : Certified copy of the Joint Development
Agreement dtd: 21.6.2010.
Ex.P 3 : Certified copy of the Sale Deed
84 OS.No.17836/2005
dtd:28.7.2010.
Ex.P 4 : Certified copy of the Sale Deed
dtd:27.10.2007.
Ex.P 5 : Certified copy of the Sale Deed
dtd:9.9.2011.
Ex.P 6 : Certified copy of the Sale Deed
dtd:2.7.2003.
Ex.P 7 : Certified copy of the Sale Deed
dtd:13.5.2003.
Ex.P 8 to : Certified copy of the Order Sheet,
10 Plaint, Interim Application.
Ex.P 11 : Five Pahanies.
Ex.P. 12 & : Certified copies of Encumbrance
13 Certificates.
Ex.P. 14 : Five Receipts of PLD Bank.
Ex.P. 15 : Certified copy of the Sale Deed
dtd:29.12.2003.
Ex.P. 16 : Birth Certificate of N. Prema.
Ex.P 17 to : Three Pahanies.
19
Ex.P 20 : Not marked.
Ex.P 21 to : Certified copies of Petition, Deposition
22 of PW.1 in C.Mis.No.13/2011
Ex.P. 23 : Mutation Register Extract.
85 OS.No.17836/2005
Ex.P. 24 : Letter dtd: 30.6.2010 addressed to Sub-
Registrar, Varthur, Bangalore East Taluk, Bangalore.
Ex.P. 25 : Certified copy of the Sale Deed
dtd:8.3.2013.
Ex.P. 26 : Certified copy of the Sale Deed
dtd:7.2.2013.
Ex.P. 27 : Certified copy of the Sale Deed
dtd:21.3.2013.
Ex.P. 28 : Certified copy of the Sale Deed
dtd:1.9.2012.
Ex.P. 29 : Certified copy of the Sale Deed
dtd:20.6.2013.
Ex.P. 30 : Check list dtd: 28.1.2003 obtained
under RTI Act.
Ex.P. 31 : Invitation of House Warming Ceremony. Ex.P. 32 : Letter issued by Bengaluru East Taluk Co-Operative Rural Development Bank dtd: 20.12.2002.
Ex.P. 33 : Letter dtd: 11.12.2014 of Finance Department.
Ex.P. 34 : Letter dtd: 23.12.2014 of Finance Department.
Ex.P. 35 : Letter dtd: 8.5.2009.
Ex.P. 36 : Letter dtd: 4.5.2006.
Ex.P. 37 : Letter dtd: 4.7.2006.
86 OS.No.17836/2005Ex.P. 38(a) : Application under Section 6(1) of RTI. Ex.P. 38(b) : Letter dtd: 3.11.2014.
Ex.P. 39 : Pahani.
Ex.P 40 & : Certified copies of Record of Rights.
41
Ex.P. 42 : Pahani.
Ex.P. 43 : Certified copies of Sale Deed
dtd:2.11.2015.
Ex.P. 44 : Certified copies of Sale Deed
dtd:22.2.2016.
Ex.P. 45 : Certified copies of Sale Deed
dtd:2.12.2016.
Ex.P 46 : Certified copies of Sale Deed
dtd:18.5.2016.
Ex.P. 47 : Certified copies of Sale Deed
dtd:3.6.2017.
Ex.P. 48 : Certified copies of Sale Deed
dtd:12.7.2017.
Ex.P. 49 : Certified copies of Sale Deed
dtd:28.10.2017.
Ex.P. 50 : Certified copies of Sale Deed
dtd:15.3.1995.
Ex.P. 51 : Certified copies of Sale Deed
dtd:23.2.1996.
Ex.P. 52 : Application under Section 6(1) of RTI
Act.
87 OS.No.17836/2005
Ex.P. 53 : Letter dtd: 4.8.2018.
Ex.P. 54 : Application under Section 6(1) of RTI
Act.
Ex.P. 55 : Letter dtd: 21.8.2018.
Ex.P. 56 : Application under Section 6(1) of RTI
Act.
Ex.P. 57 : Letter dtd: 27.8.2018.
Ex.P. 57(a) : Document containing 10 sheets.
3. List of witnesses examined for the defendants:-
DW.1 : Sri. M.N. Shankar Kumar.
DW.2 : Gopal.
DW.3 : A. Ramakrishnappa.
DW.4 : Sarojamma.
DW.5 : Manjunath G.R.
4. List of documents marked:-
Ex.D. 1 : Certified copy of Mutation Register
Extract.
Ex.D. 2 : Certified copy of the Sale deed
dtd:29.12.2003.
Ex.D. 3 & : Certified copy of Mutation Register
4 Extract.
Ex.D. 5 to : RTCs.
88 OS.No.17836/2005
14
Ex.D. 15 : Letter dtd: 8.5.2009.
Ex.D 16 : Certified copy of the Joint Development
Agreement dtd: 21.6.2010.
Ex.D. 17 : Certified copy of the General Power of Attorney dtd: 21.6.2010.
Ex.D. 18 : Partition Deed dtd: 20.1.1991.
Ex.D. 19 : Mutation Register Extract.
Ex.D. 20 : RTC.
Ex.D. 21 : Mutation Register Extract.
Ex.D. 22 : RTC.
Ex.D. 23 : Certified copy of the Death Certificate of Papamma.
Ex.D. 24 : Resolution dtd: 17.7.2017 of M/s EPSILON VENTURES Pvt., Ltd.
Ex.D. 25 : Letter dtd: 25.10.2002 for additional advance.
Ex.D. 26 : Letter dtd: 27.6.2002 for additional advance.
Ex.D. 27 : Letter dtd: 7.11.2002 for additional advance.
Ex.D. 28 : Letter dtd:21.4.2002.
Ex.D. 29 : Agreement of Sale dtd: 17.4.2002.
(Krishnaji Baburao Patil) XXVIII ADDL.CITY CIVIL JUDGE 89 OS.No.17836/2005 BANGALORE.
9 O.S.No.16712/20050
Judgment pronounced in open court vide separate judgment :-
ORDER The suit of the Plaintiffs is decreed in part with costs. The Plaintiffs claim in respect of Schedule 'A' and 'B' Properties including 'E' and 'F' Properties is hereby rejected.
The Plaintiff No.1 and 2 along with Defendant No.1 to 3 and Defendant No.8 are entitled for 1/6th share each in the Suit Schedule 'C' 'D' and 'G' Properties.
The Plaintiffs are not entitled to claim any share in respect of the transaction made by the Defendants in respect of 'A' 'B' 'E' and 'F' Properties. But, the Plaintiffs are entitled to claim their share as stated above in respect of the transaction made by the Defendants in respect of 'C' Schedule Property.
The mesne profits in respect of 'C' 'D' and 'G' Properties has to be calculated and determined consequently under Order XX Rule 12 of CPC.
Draw preliminary decree accordingly.
(Krishnaji Baburao Patil) XXVIII ADDL.CITY CIVIL JUDGE BANGALORE.