Bangalore District Court
Smt.Josephine W/O Late Michael vs Smt.Anthonamma W/O Late Anthonappa on 15 April, 2016
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated, this the 15th day of April 2016.
PRESENT
Sri. RAVI M. NAIK,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S. NO.4507/1996
PLAINTIFFS 1. Smt.Josephine w/o late Michael, aged
about 48 years,
2. Naveen Prasad S/o late Michael, aged
about 25 years,
3. Kum.Sumalatha D/o late Michael, aged
about 23 years,
4. Anthony Robby S/o late Michael, aged
about 21 years,
All are r/a no.41/1, Kacharakanahalli,
Kammanahalli main road, Thomas Town post,
Bangalore - 84.
(By Sri.H.S.Ramamurthy - Advocate)
- V E R S U S -
DEFENDANTs 1. Smt.Anthonamma w/o late Anthonappa,
aged about 78 years,
1(a). Smt.Arogyamma D/o Anthonamma, w/o
Balaji, since died by her LRs:
1(a)(i) Balaraju S/o late Mariyappa, aged
about 60 years,
2 O.S.No.4507/1996
1(a)(ii) SMt.Shallina Marry D/o Balaraju,
aged about 40 years,
1(a)(iii) Smt.Lilly Pushpa D/o Balaraju, aged
about 38 years,
1(a)(iv) Smt.Manjula Marry, D/o Balaraju,
aged about 36 years,
1(a)(v) Anthony Raj S/o Balaraju, aged about
34 yars,
1(a)(vi). Smt.Lurd Marry D/o Balaraju, aged
about 32 years
1(a)(i) to (vi) are r/a no.154, 6th cross,
Kanakadasa Layout, Lingarajapura,
St.Thomas Post, Bangalore - 84.
2. Smt.Saraswathi W/o Ramalingam, r/a
Arokyappa Garden, Sy.no.41/1,
kacharakanahalli, Kammanahalli main
road, Thomas town post, Bangalore -84.
3. Smt. Antony Mariyamma, w/o
A.C.Rajappa, r/a no.1, Balaji Layout,
Wheeler road, B.L.Rice Nagar,
Bangalore -84.
4. Fransis Kumar S/o Shanthappa, r/a
Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
5. Rajeshwari D/o Ramakrishna, husband
name not known, r/a Arokyappa Garden,
Sy.no.41/1, Kacharakanahalli,
Kammanahalli main road, Opp- Church
3 O.S.No.4507/1996
gate, Thomas town post, Bangalore - 84.
6. Devi Panjamani W/o Late Srinivas,
husband name not known, r/a Arokyappa
Garden, Sy.no.41/1, Kacharakanahalli,
Kammanahalli main road, Opp- Church
gate, Thomas town post, Bangalore - 84.
7. Manjula Mary W/o Gabriel, r/a
Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
8. Josephine Mary, W/o Felix, r/a
St.Pauyex church, Kacharakana halli,
Thomas Town Post, Bangalore - 84.
9. N.S.Rayappa, Father's name not known,
Clerence Board, No.55, Risidler street,
Seshadripuram, Bangalore.
10. L.Jayaray, S/o Chinnappa, working in
BEL, r/a Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
11. Kasthrui Sundar W/o T.S.Sundar, r/a
no.40, Fruit street, Cavalry Road,
Bangalore.
12. Ashwathamma w/o Balakrishna Prasad,
r/a Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
13. Shantha Mary W/o late A.Fransis,
No.10/1, Webster road, Cox town,
4 O.S.No.4507/1996
Bangalore - 3.
14. Ruby W/o K.N.Nagaraj, D/o Shantha
Mary, r/a no.13 & 14, Both r/a no.10/1,
Webstel road, Cox town, Bangalore.
15. Veronika r/a Arokyappa Garden,
Sy.no.41/1, Kacharakanahalli,
Kammanahalli main road, Opp- Church
gate, Thomas town post, Bangalore - 84.
16. Bhagyamma W/o Shank R/a Chelkere
village, Bangalore south taluk,
Bangalore - 84.
17. Smt.Evelyn Prabhakar W/o Probhakar,
Seem House Flat, No.1, C.S.II
compound, 2nd cross, no.29, Mission road,
Bangalore -27.
18. Lakshmidevamma W/o Raja reddy, r/a
Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
19. Tararam, Father name not known to
the plaintiff r/a Arokyappa Garden,
Sy.no.41/1, Kacharakanahalli,
Kammanahalli main road, Opp- Church
gate, Thomas town post, Bangalore - 84.
20. Sarojamma W/o late Doddannaiah, r/a
Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
21. Chikkannaiah S/o Kattalappa, r/a
no.17, 'D' street, Jogipalya, Bangalore.
5 O.S.No.4507/1996
22. Smt.Anthony Daniel, w/o T.N.Daniel,
r/a Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
23. A. Venkatesh S/o Annamalai, r/a
Murugar Banaswadi Road, Bangalore -33.
24. Sheela Rajan W/o Rajan, r/a No.931,
Cox Town, Jeevanahalli, Frezer Town
post, Bangalore - 2005.
25. Pushpam D/o Late Chinnaiah, r/a
no.26, Cox town, Jeevanahalli, Frazer
town post, Bangalore 05.
26. Smt.Vishalakshmi W/o Shanmugam, r/a
Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Thomas Town post, Bangalore-84.
27. Lourdamma W/o Arulappa, r/a
Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
28. Ashwathanarayanna, father's name not
known to the plaintiff, M.M.Road, Frazer
town post, Bangalore - 5.
29. S.Ramachandran, father's name not
known to the plaintiff, No.22, Clarkpet,
'C' Ramaraj road cross, Backside,
Bangalore - 01.
30. C.Anthony W/o Chowrappa, r/a
Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
6 O.S.No.4507/1996
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
31. Mrs.Jayalakshmi W/o Raju @ Bommai,
no.48, Kenchappa road, Frazer town
post, Bangalore - 56 005.
32. S.T.Anthony S/o Thambuswamy,
Narayanapalya, Banaswadi road cross,
Bangalore - 33.
33. L. Peter Paul, S/o Lurd Marry, major,
Husband name not known, r/a Lourdmarry
building, Kullappa circle, Kammanahalli
Main road, St.Thomas Town post,
Bangalore - 84.
34. Ramchandran, Father's name knot
known to the plaintiff, r/a Arokyappa
Garden, Sy.no.41/1, Kacharakanahalli,
Kammanahalli main road, Opp- Church
gate, Thomas town post, Bangalore - 84.
35. K.N.Thomas S/o K.T.Kurien, no.8,
Infantry road, Bangalore- 560 001.
36. Padmavathamma W/o Krishnamachari,
major, r/a no.43, Heerachand Layout,
Jeevanahalli, Cox town, Bangalore - 05.
37. Smt.Shardamma W/o S.Singaram, r/a
no.118, 2nd cross, R.S.Palyam,
M.S.Nagar post, Bangalore - 33.
38. Ganesh Kandukural, father's name not
known to the plaintiff, r/a Arokyappa
Garden, Sy.no.41/1, Kacharakanahalli,
Kammanahalli main road, Opp- Church
gate, Thomas town post, Bangalore - 84.
7 O.S.No.4507/1996
39. Narasamma w/o Rangappa, r/a no.48,
Kenchappa road, Frazer town post,
Bangalore - 33.
40. J.Felix, S/o Josephine, r/a no.4/2,
Kammanahalli, St.Thomas Town Post,
Bangalore - 84.
41. Mary Chitra W/o Felix, r/a no.4/2,
Kammanahalli, St.Thomas Town post,
Bangalore - 84.
42. Cheluvaraju S/o late Joseph, Chinnappa
Garden, Benson Town post, Bangalore -
46.
43. Jayachandrareddy, father's name not
known to the plaintiff, Chinnappa Garden,
no.47, 3rd main road, LTC Colony, Cox
town, Jeevanahalli, Bangalore- 05.
44. Lakshmamma W/o L.R.Krisnnappa @
Keshavan, r/a no.31/A, Mosque road
cross, Frazer town post, Bangalore - 05.
45. Keshavan @ Govindaiah, father's name
not known to the plaintiff, no.19,
Kempanna road, Maruthi Sevanagar,
Bangalore - 33.
46. Donick Rosoricc, S/o late Papaia, r/a
Arokyappa Garden, Sy.no.41/1,
Kacharakanahalli, Kammanahalli main
road, Opp- Church gate, Thomas town
post, Bangalore - 84.
47. Kumar, Rajarajeswari Electricals,
Maruthi Sevanagar, Syndicate Bank road,
Bangalore - 33.
8 O.S.No.4507/1996
48. Salvi W/o G.Shankar, r/a Arokyappa
Garden, Sy.no.41/1, Kacharakanahalli,
Kammanahalli main road, Opp- Church
gate, Thomas town post, Bangalore - 84.
49. Sujeendra S/o Sonnappa, Oil mill road,
State Palya, St.Thomas Town post,
Bangalore - 84.
50. Ramakrishan, father's name not known,
major, "Famous Tailors", Kammanahalli
main road, Thomas town post,
Bangalore -84.
51. Farooq Pasha S/o Abdul Samed, r/a
no.114, Mutton stall, Kammanahalli main
road, Thomas town post, Bangalore -84.
52. H.Basheer Ahmed, major, no.47,
M.M.Road, Frazer town post,
Bangalore -84.
53. Mogaram, major, Pushpa Textiles,
Kammanahalli Main road, Thomas Town
post, Bangalore - 84.
54. Chrtan Das, major, Father's name not
known, prop Tea stall, Kammanahalli main
road, Thomas town psot, Bangalore -84.
55. R. Manojlal, Mahadey Fancy stores,
Kammanahalli Main road, Thomas Town
post, Bangalore - 84.
56. D.B.Rathoj Kumar, Advocate,
Kammanahalli main road, Thomas Town
post, Bangalore - 84.
57. T.K.Mani, Lakshmi Electronics,
Kammanahalli main road, Thomas town
9 O.S.No.4507/1996
post, Bangalore - 84.
58. V.Abdul Majeed Khan S/o Abdul
Rasheed Khan, aged about 30years, Pa
raga n Medcaies, Kammanahalli main road,
Thomas town post, Bangalore - 84.
59. Smt.Pushpa, Sagar hotel, Kammanahalli
main road, Thomas town post,
Bangalore - 84.
60. G.P.S.Das, Good Shepherd Enterprises,
Kammanahalli main road, Thomas town
post, Bangalore - 84.
61. Mise A. Analdin, D/o Mrs.
Asheervatham, Kammanahalli main road,
Thomas town post, Bangalore - 84.
62. Sudarshan Rao C.K., Mastyer Tailor,
Kammanahalli main road, Thomas town
post, Bangalore - 84.
63. Jerald S/o Chinnappa, Kammanahalli
main road, Thomas town post,
Bangalore - 84.
64. Purveen, Kaleemulla, Kammanahalli main
road, Thomas town post, Bangalore - 84.
65. N.Balaram Bayhl, Prem Jewellers,
Kammanahalli main road, Thomas town
post, Bangalore - 84.
66. Asmal, Asmal Folish Works,
Kammanahalli main road, Thomas town
post, Bangalore - 84.
67. Sunil Bagai S/o late Sundar Lal Bagai,
r/a no.14/14, 2nd cross, Shanthinagar,
10 O.S.No.4507/1996
Bangalore - 25aged about 55 years
68. Sandeep Bagai S/o Sunil Bagai, aged
about 26 years, r/a no.14/14, 2nd cross,
Shanthinagar, Bangalore - 25.
69. Janak Kumar Sachedev, S/o Gobinda
Ram Sachedev, aged about 49 years, r/a
no.425, 5th cross, 2nd block, HRBR
Layout, Kalyanagar, Bangalore - 43.
70. Smt.Sapna Sachedev, W/o Janak
Kumar Sachedev, aged about 44 years,
/a no.425, 5th cross, 2nd block, HRBR
Layout, Kalyanagar, Bangalore - 43.
71. Mohammed Irfan S/o Mohammed
Fairoze, aged about 41 years, r/a no.59,
3rd cross, Bangiyappa Garden,
Shanthinagar, Bangalore - 27.
72. Smt.N.Shashirekha W/o B.Somu, aged
about 44 years, r/a No.12, Arogyamma
Layout, 5th cross, Someshwara Koil
Street, Venkateshpuram, K.G.Halli,
Bangalore - 45.
73. Nithiyananthan S/o late Kantharaj,
aged about 41 yeas, r/a no.4, Old
no.184, 2nd cross, Nehru road,
Kammanahalli, St.Thomas Town post,
Bangalore - 84.
74. Smt.N.Prema W/o Nithiyananthan,
aged about 34 years, r/a no.4, Old
no.184, 2nd cross, Nehru road,
Kammanahalli, St.Thomas Town post,
Bangalore - 84.
(D.3,13,14,42,45,47,62 & 63 - placed
11 O.S.No.4507/1996
exparte. D.1,10,31,38,39,41 & 46 by By
Sri, D.2 by H.L.Nagesh, D.20,21,22,26, 51,
52, 65,66 by G.R.Anil ghosh, D.36 by
K.A.Kamalam,D.40 by H.T.Narayan, D.27 by
Sudhakar-Advocates)
Date of institution of the suit : 4.7.1996
Nature of the suit (suit on Suit for partition and separate
pronote, suit for declaration and possession
possession suit for injunction,etc) :
Date of the commencement of 15.3.2008
recording of the evidence :
Date on which the Judgment was 15.4.2016
pronounced :
Total duration Year/s Month/s Day/s
19 09 11
(RAVI M. NAIK),
I Addl.City Civil & Sessions Judge,
Bangalore.
J U D G M E N T
The plaintiffs have filed a suit against the defendants with a prayer to pass judgment and decree for partition and separate possession of their half share in the suit schedule property, for mesne profits and such other reliefs.
2. The brief averments of the plaint are that one Arokyappa was the owner of the suit schedule land. He was in possession and enjoyment of the same. After his 12 O.S.No.4507/1996 death, the mother of the deceased first plaintiff is in possession and enjoyment of the same. The deceased first plaintiff and his brother Mariyappa were under the care and protection of the first defendant and they were all living together. The deceased first plaintiff's brother Mariyappa died when he was 11 years old leaving behind the plaintiff and the first defendant as his legal heirs. The first defendant was managing the family affairs. After the marriage of the deceased first plaintiff, the first defendant kept the deceased first plaintiff separately along with his wife in a portion of the suit schedule property adjacent to the house of the first defendant.
3. It is further stated that in the 3rd week of July 1993, some persons claiming to be prospective purchasers approached the deceased first plaintiff stating that they want to purchase the portion of the suit schedule property and requested the plaintiff to join in the execution of the documents and persuaded him to subscribe his signature to the documents as a 13 O.S.No.4507/1996 consenting witness. The deceased first plaintiff suspected the said transaction and enquired with his mother i.e., the first defendant and asked her to show the title deeds in respect of the suit schedule property, but she refused to show the title deeds. Thereafter he approached the revenue authorities and found that the suit schedule property stood in the name of the first defendant. Thereafter, in the 3rd week of July 1993, deceased first plaintiff enquired with the sub-registrar, Bangalore north about the documents of title deeds and he came to know that on 17.7.1993, the deceased first plaintiff came across a deed purported to be 'gift deed' which had been executed by the said Arokyappa in favour of the deceased first plaintiff, first defendant and brother of the deceased first plaintiff. Thereafter, he applied for the certified copy and he got the certified copy of the said gift deed on 16.8.1983.
4. It is further stated that on going through the said document, the deceased first plaintiff was shocked to 14 O.S.No.4507/1996 know that the maternal grand father of the deceased first plaintiff Arokyappa as early as in the year 1996 itself had gifted the schedule property in favour of the first defendant, plaintiff and his brother Mariyappa and appointed the first defendant as the guardian of the plaintiff and his brother Mariyappa as they were minors. It is further stated that the deceased first plaintiff had no knowledge with respect to the right, title and interest over the suit property. It is further stated that the deceased first plaintiff and the defendant no.1 are in joint possession and enjoyment of the suit schedule property and they are the joint owners of the same. After enquiry, the deceased first plaintiff came to know that the first defendant had sold portions of the suit schedule property in favour of the defendants. Among them some of them claims to be tenants and some of them claims to be the owners of the properties purchased from the first defendant. It is further stated that the transaction entered into by the first defendant with other defendants 15 O.S.No.4507/1996 are fraudulent. The alienation made by the first defendant is not binding on the deceased first plaintiff. Only to knock off the said properties, the said fraudulent transactions are entered into by the first defendant. Hence, the plaintiffs prayed to decree the suit.
5. In pursuance of the suit summons, the defendant nos.1,2,4,6,10, 15,17, 18, 30, 16, 20,21,22 ,26,31, 36, 38,39,40, 41, 46, 69,70, 73 & 74 have appeared through their counsels. Inspite of service of suit summons, the defendant nos.3,13,14,42,45,47,62 & 63 remained absent. Hence, they were placed exparte. The defendant nos.1,10,31,38,39, 41 & 46 have filed common written statement. The defendant nos.37, 69 and 70 have filed separate written statements.
6. The sum and substance of the contention of the defendant nos.1,10,31,38,39,41 & 46 in their written statement is that the suit is not maintainable either in law or on facts. The deceased first plaintiff has already 16 O.S.No.4507/1996 filed a suit in OS no.7043/1993 seeking relief of partition. In the said suit, the suit schedule property is not included. Knowing fully well that the suit schedule property has already been sold away by the first defendant for which the deceased first plaintiff is also the party. It is further contended that the suit is bad for non- joinder of necessary parties. There are other brothers and sisters i.e., Smt.Arokya Mary who is the elder sister of the deceased first plaintiff and Sri.Vincent who is the younger brother of the deceased first plaintiff. It is further contended that the first defendant has filed a suit in OS no.599/1994 against the deceased first plaintiff for permanent injunction and the portion of the present suit schedule property i.e., property no.1288/1 of Kammanahalli village is the subject matter in the said suit and there is statusquo order operating against the deceased first plaintiff herein. The aforesaid defendants have admitted that the property belonged to the first defendant and it is in her possession and enjoyment. 17 O.S.No.4507/1996 The defendants have denied the averments made in para nos.5 & 6 of the plaint. The averments made in the said para is only to save the limitation and it is a cock and bull story. It is further contended that the suit is barred by limitation. The deceased first plaintiff had the knowledge about the gift deed long back in the year 1993 itself. He is a signatory to the said document. The aforesaid defendants have denied the averments made in para-7 of the plaint. It is further contended that the deceased first plaintiff and first defendant were joint owners is correct. It is contended that the purchasers stated in para-10 of the plaint are all bonafide purchasers. The aforesaid defendants have denied the averments made in para-11 of the plaint.
7. It is contended that the first defendant is the daughter of Arokyappa who is the maternal grand father of the deceased first plaintiff. He gifted sy.no.41/1 of Kacharakanahalli village in favour of his daughter i.e., the first defendant and the first plaintiff and his brother 18 O.S.No.4507/1996 Mariappa. The first defendant had two daughters and three sons i.e., Arokya Mary, the first plaintiff, Mariyappa, Elizabeth and Vincent. Mariyappa died on 1.12.1971 and Elizabeth died on 13.4.1982. The husband of the first defendant Anthony was a peon in KEB. The income from his salary was not sufficient to maintain the family. Therefore, the first defendant with the consent and knowledge of the first plaintiff, had sold a bit of land to various purchasers. Out of the said sale proceeds, she performed the marriage of her daughter and sons, educated them and she built many houses in a portion of the same survey number. The deceased first plaintiff and other members of the family are getting rents besides living comfortably in their own houses. It is further contended that after the death of Anthony-the husband of the first defendant, she has improved the properties, brought the family to the present stage. It is further contended that the alienation made by the first defendant is for the benefit of the entire family. She has 19 O.S.No.4507/1996 not wasted a single paise from the sale proceeds. It is further contended that the deceased first plaintiff was also signatory to number of documents. He had knowledge about the gift deed long back i.e., in the year 1982 itself. The purchasers have constructed buildings and khatas have been transferred in their names and they have been living since more than 15 years. Some of them have rented out their buildings and some of the buildings are still being constructed and some of the purchasers have taken up further construction. It is further contended that all the purchasers are bonafide purchasers for value to the knowledge of the deceased first plaintiff. The first plaintiff is getting income from the rents and he is employed on compensatory ground since his father had been working in KEB and he is drawing salary of Rs.5,000/- to Rs.6,000/-. It is further contended that the suit is not properly valued for the purpose of court fee. The court fee paid is insufficient. 20 O.S.No.4507/1996 For above all reasons, the aforesaid defendants have prayed for dismissal of the suit.
8. The defendant no.37 has filed the written statement. The sum and substance of the written statement of the defendant no.37 is that she is neither a proper nor a necessary party to the suit. It is further contended that she is not aware that Arokyaswamy was owner of the land bearing sy.no.41/1 of Kacharakanahalli village measuring 2 acres 04 guntas. It is further contended that there is no cause of action to file the suit and suit is barred by limitation. Hence, the defendant no.37 has prayed for dismissal of the suit.
9. The defendant nos.69 & 70 have filed common written statement. The sum and substance of their written statement is that the suit is not maintainable. The suit properties are not the joint family properties. The plaintiff is not entitled for any share. It is further contended that the first plaintiff himself has admitted that the suit property has already been sold and number 21 O.S.No.4507/1996 of sites have been formed in the suit property and they have put up construction in many of the sites. Hence, the suit without seeking the setting aside of sale deeds and possession and without paying proper court fee, the suit is not maintainable. It is further contended that the suit is barred by law of limitation. It is further contended that the property purchased by the defendant nos.69 & 70 contradicts the property owned by the plaintiffs. It is further contended that the plaintiff already filed a suit in OS no.26318/2011 and have filed an interim application to include these defendants. Hence, the present suit is not maintainable. In para-6 of the written statement, the aforesaid defendants have stated how they acquired the site nos.10 & 11. It is further contended that the interim application filed by the first plaintiff in OS no.26318/2010 for the relief of injunction came to be rejected by vacating the interim order. The aforesaid defendants have started construction work and the building is almost completed. It is further contended that 22 O.S.No.4507/1996 after the disposal of MFA no.3152/1997 before the Hon'ble High Court of Karnataka on 12.7.2000 filed by the first plaintiff challenging the vacation of the interim order. The first defendant and the first plaintiff and his brothers have settled the property and even the brother of the first plaintiff and his LRs and Anthonamma have alienated their share of the property to various persons. Only with an oblique motive for wrongful gain, the plaintiffs have filed the present suit. For above all reasons, the defendant nos.69 & 70 have prayed for dismissal of the suit.
10. On the basis of the above pleadings, this court has framed the following issues:
1. Whether the plaintiff proves that late Arokyappa had executed a gift deed dated 10.6.1966 in favour of the plaintiff, his brother and 1st defendant in respect of the suit schedule property ?
2. Whether the plaintiff is entitled to half share in the suit schedule property ?
3. Whether the defendants prove that a portion of the suit schedule property is sold with the consent of the plaintiff and 23 O.S.No.4507/1996 the vendees have constructed building in the said portion as bona fide purchasers for value ?
4. Whether the defendant no.25 proves that she is a bona fide purchaser of the portion of the suit schedule property for value without notice ?
5. Whether suit is bad for non-joinder of necessary parties ?
6. Whether the suit is barred by limitation ?
7. Whether the suit is not properly valued and the court fee paid is insufficient ?
8. What decree or order ?
11. The plaintiffs in order to prove their case, have got examined the plaintiff no.1(a) as PW.1 ( In the cause title after the death of first plaintiff, his LRs are wrongly arrayed as plaintiff nos.1 to 4 instead of plaintiff nos.1(a) to 1(d). Hence, the same is corrected and hereinafter they are referred as plaintiff nos.1(a) to 1(d)). One Marquis is examined as PW.2 and got marked Exs.P.1 to P.26 & 26(a) documents. On the other hand, on behalf of the defendants, the defendant no.69 was examined as DW.1 24 O.S.No.4507/1996 and one Kannan is examined as DW.2 and got marked Exs.D.1 to D.36 documents.
12. The learned Counsel appearing for the plaintiffs has relied on the decisions reported in:
1. AIR 1985 KAR 143 -Ganapati Santaram Bhosale & another Vs. Ramachandra Subbarao, Kulkarni & others.
2. AIR 2005 Gauhati 1 - Smt.Usha Rani Banik Vs. Haridas Das & others.
3. ILR 1998 KAR 2127 - Vadde Sanna Hulugappa & others Vs. Vadde Sanna Hulugappa & others.
4. 2012(1) KCCR 1 (SC) - Har Narain (dead) by LRS Vs. Mam Chand (dead) by LRs & others.
5. AIR 2009 Patna 83 - Smt.Sumitra Devi & Another Vs. Sitasharan Bubna & others.
6. AIR 2001 KAR 246 - K.Muniswamy since deceased by LRs Vs. K.Venkataswamy.
7. AIR 1998 KAR 325 - Vadde Sanna Hulugappa & others Vs. Vadde Sanna Hulugappa & others.
13. Heard the learned Counsel appearing for the plaintiffs and defendants.
14. My findings on the above issues are as follows: -
Issue no.1 : In the affirmative Issue no.2 : In the negative 25 O.S.No.4507/1996 Issue no.3 : In the affirmative Issue no.4 : In the affirmative Issue no.5 : In the affirmative Issue no.6 : In the negative Issue no.7 : In the affirmative Issue no.8 : As per final Order for the following:
REASONS
15. Before answering the issues, I would like to state the admitted facts of this case. One Arokyappa was the owner of the property bearing sy.no.41/1 of Kacharakanahalli village, Kasaba hobli, Bangalore north taluk measuring 2 acres 4 guntas i.e., suit property. The deceased first defendant herein Smt.Anthonamma is the daughter of said Arokyappa. The deceased first defendant had two daughters and three sons. They are 1) Arokya Mary, 2) deceased first plaintiff, 3) Mariyappa, 4) Elizabeth and 5) Vincent. During the pendency of the suit, the first plaintiff died. His LRs are brought on record as plaintiff nos.1(a) to 1(d). The first defendant also died during the pendency of the suit. The defendant no.1(a) is brought on record as her legal representative. 26 O.S.No.4507/1996 The son of Anthonamma i.e., Mariyappa died on 1.12.1971 and her daughter Elizabeth died on 13.4.1982. The defendant nos.2 to74 are the purchasers of the portions of the suit schedule property as well as the tenants in respect of portions of the suit property.
16. ISSUE NO.1: The contention of the deceased first plaintiff is that his maternal grand father Arokyappa had executed Ex.P.1/D.1 gift deed in favour of daughter of Arokyappa i.e., deceased frist defendant and in favour of deceased first plaintiff and his brother Mariyappa in respect of sy.no.41/1 of Kacharakanahalli village, measuring 2 acres 04 guntas. The learned Counsel appearing for the plaintiffs drew the attention of this court to the recitals of the said gift deed and contended that as per the said document, all the aforesaid three persons have become the owners of the suit schedule property. He further contended that the intention of Arokyappa was to retain the said property stated in Ex.P.1/D.1. But, the deceased first defendant contrary 27 O.S.No.4507/1996 to the will of her father, sold the property against the interest of the minor children i.e., deceased first plaintiff and his brother Mariyappa. The recitals of Ex.P.1/D.1 reads as under:
"d«Ää£À°è DUÀvPÀ ÀÌ ¨É¼É ¤ÃªÀÅUÀ¼ÀÄ C£ÀĨs« À ¸ÀvPÀ ÀÌzÀÄÝ. F ¸ÀévÀÄÛ £Àgï ªÉÄeÁjnUÉ §gÀĪÀªgÀ UÉ ÀÆ PÀA æ iÀÄ, ¨sÉÆÃUÀå, DzsÁgÀ ªÀiÁqÀ®Ä ºÀQÌgÀĪÀÅ¢®è. DªgÀÄUÀ¼ÀÄ ªÉÄeÁjnUÉ §AzÀ £ÀAvÀgÀ CªÀgÀ EµÁÖ£ÀĸÁgÀ C£ÀĨs«À ¸ÀvPÀ ÀÌzÀÄÝ."
Whether the deceased first defendant has violated the recitals of Ex.P.1/D.1 or not cannot be considered while considering this issue. The fact remains that the maternal grand father of the deceased first plaintiff executed the gift deed in favour of the deceased first plaintiff, his brother and deceased first defendant. Hence, I answer Issue no.1 in the affirmative.
17. Issue nos.3 & 4: As both these issues are interlinked, in order to avoid repetition, I would like to answer them together.
18. According to the deceased first defendant, the portions of the suit schedule property are sold to various 28 O.S.No.4507/1996 purchasers. To substantiate the said contention, number of sale deeds are produced by the defendants and the plaintiffs. Ex.D.2 is the sale deed dated 29.11.1979 under which deceased first defendant sold the portion of the suit schedule property in favour of one Selvaraj for a sale consideration of Rs.4,000/-. Ex.D.3 is the sale deed under which the said Selvaraj sold the property purchased under Ex.D.2 in favour of one Jayachandra Reddy-defendant no.43. Ex.D.4 is the sale deed dated 20.5.2006 under which the defendant no.43 sold the property in favour of Gajendran. Ex.D.6 is the sale deed dated 14.7.2008 under which the said Gajendran and Ramachandran sold the portion of suit schedule property in favour of defendant nos.67 & 68. Ex.D.8 is the sale deed under which the defendant nos.67 & 68 sold the property in favour of defendant nos.69 & 70. Ex.P.2 is the certified copy of sale deed dated 29.11.1979 under which the deceased first defendant has sold the portion of the property in favour 29 O.S.No.4507/1996 of the defendant no.2. Ex.P.3 is the certified copy of the sale deed dated 8.2.1978 under which the deceased first defendant sold the portion of the suit schedule property in favour of one Josephine Mary w/o Philips i.e., mother of defendant no.40. Ex.P.4 is the certified copy of the sale deed dated 13.9.1978 under which deceased first defendant sold the portion of the suit schedule property in favour of one Jayaraj s/o Chinnappa i.e., defendant no.10. Ex.P.5 is the certified copy of the sale deed dated 31.8.1977 under which portion of the suit schedule property was sold by the deceased defendant no.1 in favour of defendant no.11. The recitals of Ex.P.6 is the certified copy of sale deed dated 13.9.1978 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one A.Francis S/o Anthony on 13.9.1978. The recitals of Ex.P.7 i.e., the certified copy of the sale deed dated 21.11.1978 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Smt.Vironica i.e., 30 O.S.No.4507/1996 defendant no.15. The recitals of Ex.P.8 i.e., the certified copy of the sale deed dated 22.6.1978 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of Mrs.Evelyn Prabhakar W/o Prabhakar i.e., the defendant no.17. The recitals of Ex.P.9 certified copy of the sale deed dated 31.8.1977 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Dodda Annaiah S/o Kattappa. The recitals of Ex.P.10 certified copy of the sale deed dated 31.8.1977 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Chikka Annaiah S/o Kattappa. The recitals of Ex.P.11 certified copy of the sale deed dated 31.8.1977 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Smt.Annamma Daniel W/o T.M.Daniel. The recitals of Ex.P.12 certified copy of the sale deed dated 2.3.1978 discloses that the deceased first defendant sold the portion of the suit schedule 31 O.S.No.4507/1996 property in favour of one A.Venkatesh S/o Annamalai i.e., the defendant no.23. The recitals of Ex.P.13 certified copy of the sale deed dated 7.9.1977 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one C.Pushpam d/o Chinnaiah i.e., the defendant no.25. The recitals of Ex.P.14 certified copy of the sale deed dated 19.2.1977 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Smt.S.Vishalakshi w/o Shanmugam i.e., the defendant no.26. The recitals of Ex.P.15 certified copy of the sale deed dated 5.8.1976 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Smt.A.Lourdamma w/o late Sri.Arulappa i.e., the defendant no.27. The recitals of Ex.P.16 certified copy of the sale deed dated 21.11.1978 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one C.Anthony S/o Chowriappa i.e., the defendant no.30. The recitals of 32 O.S.No.4507/1996 Ex.P.17 certified copy of the sale deed dated 10.12.1979 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one K.K.Thomas s/o K.L.Kuriyan i.e., defendant no.35. The recitals of Ex.P.18 certified copy of the sale deed dated 30.3.1981 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Smt.Anthony Mariyamma w/o A.C.Rajappa i.e., defendant no.3. The recitals of Ex.P.19. Ex.P.20 certified copy of the sale deed dated 18.9.1979 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one S.T.Anthony S/o Thambuswamy i.e., defendant no.32. The recitals of Ex.P.21 certified copy of the sale deed dated 14.9.1979 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Smt.Sharadamma W/o S.Singaram i.e., defendant no.37. The recitals of Ex.P.22 i.e., the certified copy of the sale deed dated 29.11.1979 discloses that the deceased first 33 O.S.No.4507/1996 defendant through her general power of attorney holder sold the portion of the suit schedule property in favour of one L.R.Krishnappa s/o Lakshminarayanappa. The recitals of Ex.P.23 certified copy of the sale deed dated 29.11.1979 discloses that the deceased first defendant sold the portion of the suit schedule property in favour of one Sri.Dominick Rosorico S/o Popaian i.e., defendant no.46. The recitals of Ex.P.24 certified copy of the sale deed dated 24.9.1979 discloses that the deceased first defendant sold portion of the suit schedule property in favour of A.Ramakrishna S/o Annamalai.
19. Thus, the recitals of the aforesaid sale deeds disclose that prior to 1981 itself the mother of the deceased first plaintiff sold portions of the suit schedule property in favour of various purchasers. It is pertinent to note that prior to the filing of the suit, the deceased first plaintiff herein filed a suit in OS no.7040/1993 against the deceased first defendant and defendant no.2 herein for partition. No doubt, PW.1-the wife of deceased 34 O.S.No.4507/1996 first plaintiff i.e., plaintiff no.1(a) has stated that she does not know about the said suit. But, the specific suggestion is made to PW.1 that the said suit came to be filed. Hence, the said contention of the plaintiffs cannot be ignored. If really the present suit property was sold by the deceased first defendant without any legal necessity, there was no impediment for the deceased first plaintiff to include the present suit property in OS no.7040/1993 which came to be filed three years prior to the filing of the suit. In all probabilities, it is clear that the present suit schedule property was already sold and deceased first plaintiff was also beneficiary out of the sale proceeds. Therefore, he could not include the present suit property in the earlier suit OS no.7040/1993. It is pertinent to note that in the year 1966 when Ex.P.1/D.1 came to be executed, the deceased first plaintiff was aged about 7 years and that is clear from the recitals of the said document. In her cross-examination at page-13, para-9 PW.1 has stated that when she married the 35 O.S.No.4507/1996 deceased first defendant, her husband was aged about 22 years. Nothing prevented the deceased first plaintiff to question the sale deeds and revenue entries in respect of sy.no.41/1 i.e., the suit schedule property within three years from the date of attaining majority. If really the alleged sale in respect of various purchasers were made by the deceased first defendant to defeat the interest of the deceased first plaintiff, definitely the first plaintiff would have challenged the revenue entries and sale deeds. In her cross-examination in the very same para at page-13, PW.1 has stated that she is residing in a house constructed in sy.no.41/1 and it measures 54 x 53 ft., and she also admits that house occupied by one Vincent measures 80ft. x 37 ft. A specific suggestion is made to PW.1 that on 18.l.1994, panchayath took place and a division took place with respect to residence and the share was allotted to the husband of the first plaintiff. That itself shows that deceased first defendant made all arrangements to her sons including the deceased first 36 O.S.No.4507/1996 plaintiff with regard to their residence. Hence, no injustice is caused to the deceased first plaintiff and he cannot claim any partition out of the suit schedule property. There is no averments made in the plaint or in the evidence of PWs.1 & 2 that deceased first defendant misutilised the sale proceeds and defrauded the deceased first plaintiff. It is pertinent to note that deceased first defendant brought up her children including the deceased first plaintiff, gave education to the deceased first plaintiff, performed their marriage, built many houses in the portions of suit property. It is clear from the evidence of PW.1 that her husband deceased first plaintiff was employed in KEB and getting salary. Under these circumstances, the material placed before the court is clear that the deceased first defendant sold the portions of the suit schedule property to various purchasers for the family necessities.
20. The learned Counsel appearing for the plaintiffs has relied on a decision reported in AIR 2005 Gauhati 1 37 O.S.No.4507/1996 at Head note-B, wherein the Hon'ble High Court of Gauhati has held as under:
"(B) Transfer of Property Act (4 of 1882) -
S.52 - Sale deed executed during pendency of suit - Not invalid to the extent it does not affect rights of opposite party."
21. In the instant case, no doubt, some of the sale deeds were executed during the pendency of the suit. But, the deceased first defendant sold the portions of the suit schedule property to bring up her children and for the construction of the house. Thus, it is for legal necessities. Therefore, the ratio laid down in the Head note-B of the aforesaid decision of the Hon'ble High Court of Gauhati relied on by the learned Counsel appearing for the plaintiffs is not applicable to the facts of the case on hand.
22. The learned Counsel appearing for the plaintiffs contended that most of the purchasers in the present suit are lis-pendense purchasers. They cannot be called as bonafide purchasers for value and in support of his contention, he has relied on a decision reported in 38 O.S.No.4507/1996 2012(1) KCCR 1(SC), wherein the Hon'ble Apex Court has held as under:
"Registration Act, 1908 - Sec.47 - Transfer of Property Act, 1882 - Sec.52
- Date of sale - Whether the purchaser was lis pendense purchaser - Held, under sec.47 of the registration act, registration of the document relates back to the date of the document. However, sale deed registered after the filing of the suit, held, could not make it a sale effected prior to the institution of the suit and the purchaser will be nonetheless a lis pendense purchaser. Also held, he was not a bona fide purchaser for value, as he had notice of the possession of the suit land by the appellants on the date of the execution of the sale deed."
He has also relied on another decision reported in AIR 2009 Patna 83, wherein the Hon'ble High Court of Patna has held as under:
"(A)Transfer of Property Act (4 of 1882), S.52 - Lis pendens - Suit for parititon - Preliminary decree passed -
Alienation of property to 3rd party during pendency of final decree proceedings - Prior permission of court not taken - Alienation would be hit by doctrine of lis pendens by operation of S.52 of Act.
39 O.S.No.4507/1996
23. It is pertinent to note that in the instant case the parties to the suit are not governed by Hindu law. They are Indian Christians and the portions of the suit schedule property were sold by the mother i.e., the deceased first defendant for the upliftment of her children. Therefore, the ratios laid down in the aforesaid decisions of the Hon'ble Apex Court and Hon'ble High Court of Patna relied on by the learned Counsel appearing for the plaintiffs are not applicable to the facts of the case on hand.
24. The learned Counsel appearing for the plaintiffs contended that the first defendant sold the suit property without obtaining the consent of the deceased first plaintiff, hence they are not binding on him. The recitals of Ex.D.1 disclose that on 7.5.1981 itself deceased first plaintiff obtained the certified copy of the gift deed. He could seek for cancellation of the sale deeds executed by his mother in favour of various purchasers immediately after obtaining Ex.P.1/D.1. He has not chosen to do so. 40 O.S.No.4507/1996 That itself shows that the deceased first plaintiff had not objected for alienation of the properties by his mother.
25. It is pertinent to note that the plaintiffs and defendants are governed by Sec.43 of the Indian Succession Act. During the lifetime of first defendant itself the father of the first defendant Sri.Arokyappa executed Ex.P.1/D.1 in favour of the deceased first defendant, deceased first plaintiff and his brother Mariyappa. The mother of the deceased first plaintiff had sold the properties during her lifetime itself on the strength of Ex.P.1/D.1 gift deed. The present deceased first plaintiff and his brother Mariyappa being her lineal descendants cannot claim share in the suit schedule property which is sold by their mother.
26. The learned Counsel appearing for the defendant has contended that the deceased first plaintiff ought to have sought for cancellation of the sale deeds executed by his mother in favour of various purchasers. As against the said contention, the learned Counsel 41 O.S.No.4507/1996 appearing for the plaintiffs relied on a decision reported in ILR 1998 KAR page-2127, wherein the Hon'ble High Court of Karnataka has held as under:
"Hindu law - Partition - Courts dismissed the suit for partition only on the ground that the plaintiffs had not prayed for cancellation of sale deeds executed by the 1st defendant in favour of the fourth defendant. In second appeal High court held that it was not necessary to seek cancellation of sale deeds or seek setting aside alienation as the plaintiffs were not parties to any of the alienations and as such, they are not binding on them."
27. In the instant case, the mother of the deceased first plaintiff has sold the portions of the suit property to various purchasers and utilized the sale consideration for the benefit of the family including the benefit of the deceased first plaintiff. Under these circumstances, the ratio laid down in the aforesaid decision of the Hon'ble High Court of Karnataka relied on by the learned Counsel appearing for the plaintiffs is not applicable to the facts of the case on hand.
42 O.S.No.4507/1996
28. The learned Counsel appearing for the plaintiffs has relied on a decision reported in AIR 2001 KAR 246, wherein the Hon'ble High Court of Karnataka has held as under:
(A) Transfer of property Act (4 of 1882) Ss.10, 6 - Restraint on alienation - No transfer of title contemplated in partition or family settlement - Per se provisions of S.10 of 1882 Act, therefore, would not apply to partition and family settlement - However, any total restraint on right of alienation is void but any partial restraint would be valid and binding - The rule is based on sound public policy of free circulation.
29. The learned Counsel appearing for the plaintiffs has also relied on another decision reported in AIR 1998 KAR 325, wherein the Hon'ble High Court of Karnataka has held as under:
"Partition Act(4 of 1893), S.4 - Partition of dwelling house - joint family property - Plaintiffs having 2/3rd share - Successive alienations made by defendant, one of member of family - Plaintiffs not parties to any of the alienations - No legal obligations on their part to specifically pray that alienations were not binding on them -43 O.S.No.4507/1996
Suit for partition by them for 2/3rd share and separate possession - Maintainable."
In the light of the ratio laid down in the aforesaid decisions of the Hon'ble High Court of Karnataka, the learned Counsel appearing for the plaintiffs argued that any alienation made by the deceased first defendant during the pendency of the suit is void since the deceased first plaintiff is not a party to the said alienation and the said sale deeds are not binding on the plaintiffs. It is pertinent to note that the execution of all the sale deeds took place during the lifetime of deceased first defendant. She sold the portions of the suit schedule property to meet the expenses of the marriage of daughters and for the upliftment of the family including the education of the deceased first plaintiff and other family members. Under these circumstances, the ratios laid down in the aforesaid decisions of the Hon'ble High Court of Karnataka relied on by the learned Counsel 44 O.S.No.4507/1996 appearing for the plaintiffs are not applicable to the facts of the case on hand.
30. He further relied on a decision reported in AIR 1985 KAR 143, wherein the Hon'ble High Court of Karnataka at Head note-B has held as under:
"(B) Hindu Law - H.U.F.- Suit for partition by coparcener challenging sale by guardian -
Prayer for setting aside of sale - Not necessary (H.U.F.-Suit for partition - Prayer in plaint)".
In the instant case, the parties are Indian Christians, they are not Hindus and they are not governed by Hindu Law. Therefore, the terminology 'coparcener' is not applicable to the parties to the proceedings. Added to that, the deceased first defendant being a mother of the deceased first plaintiff has not misutilised the sale proceeds of the properties which she has sold in favour of purchasers and she utilized the sale proceeds for the benefit of the family. Therefore, the ratio laid down in the aforesaid decision of the Hon'ble High Court of Karnataka relied on by the learned Counsel appearing for the 45 O.S.No.4507/1996 plaintiffs is not applicable to the facts of the case on hand.
31. It is pertinent to note that the recitals of the sale deeds i.e., Exs.D.3 to D.6 as well as Exs.P.2 to P.24 coupled with the recitals of Ex.D.10 to D.17 khata certificates and khata extracts, Exs.D.18 to D.21 Encumbrance certificates, Exs.D.22 to D.36 tax paid receipts, Ex.P.26 colour photos, Ex.P.26(a) negatives disclose that various purchasers have purchased the portions of the suit property by paying sale consideration, constructed building in the portion of the suit property. The khata is mutated in their names. They have been paying the taxes to the concerned authorities. Thus, it is clear that the purchasers are bonafide purchasers for value. The first defendant has utilized the sale proceeds for the benefit of the family. The first plaintiff being the son of the deceased first defendant, cannot question the sale deeds under which various purchasers have purchased the portions of the 46 O.S.No.4507/1996 suit property. Hence, I answer Issue nos.3 & 4 in the affirmative.
32. Issue no.6 : The contention of the defendants is that the suit is barred by limitation. The learned Counsel appearing for the defendants contended that the first plaintiff has not filed the suit within three years from the date of attaining the age of majority. He drew the attention of this court to the recitals of Ex.D.1 and argued that the deceased first plaintiff obtained the certified copy of Ex.D.1 on 7.5.1981 itself. As against the said contention, the learned Counsel appearing for the plaintiffs contended that during the year 1966, Arokyappa executed the gift deed jointly in the name of deceased first defendant, deceased first plaintiff and his brother. In the year 1981 the deceased first plaintiff attained majority. He verified the document and came to know about the gift deed. He came to know about the execution of the sale deeds in the month of August 1996 47 O.S.No.4507/1996 itself. Hence, the question of applying Limitation Act does not arise.
33. Undisputedly, the deceased first plaintiff attained the age of majority in the year 1981. The endorsement on Ex.D.1 discloses that the deceased first defendant applied for the certified copies of the gift deed and obtained it on 7.5.1981. The recitals of Ex.D.2 disclose that the portion of the suit property was sold by his mother on 29.11.1979 itself. The deceased first plaintiff could file a suit within three years from the date of his attaining majority, challenging the said sale deed. Under these circumstances, the suit filed after 15 years from the date of knowledge of the execution of Ex.D.1 by the plaintiffs seeking possession, partition of the suit property, is barred by law of limitation. Hence, I answer Issue no.6 in the affirmative.
34. Issue no.7 : The defendants have contended that major portion of the suit property is sold by the mother of the deceased first plaintiff and the prospective 48 O.S.No.4507/1996 purchasers have constructed building and they are in possession and enjoyment of the portions of the suit property. Therefore, the plaintiffs ought to have pay the court fee based on the market value of the suit property as contemplated under sec.35(1) of the Karnataka Court Fee & Suit Valuation Act. DW.1 is one of the purchasers of site i.e., portion of suit property and DW.2 is also one of the purchasers of the portion of suit property i.e., site no.6 in the suit property. Both of them have purchased the property and their version discloses that they are in possession and enjoyment of the property purchased by them. In her cross-examination, PW.1 at page-14 has stated that in the year 1993 they separated from the family. Thus, it is clear that the portions of the suit property sold by the mother of deceased first plaintiff is in possession and enjoyment of the respective purchasers and they have constructed structure over the said properties. The family of the deceased first plaintiff is not in possession and enjoyment of the portions of the suit 49 O.S.No.4507/1996 property sold to various purchasers. Under these circumstances, the plaintiffs ought to have pay the court fee under sec.35(1) of the Karnataka Court Fee & Suit Valuation Act based on the market value as on the date of filing the suit instead of paying the court fee under sec.35(2) of the Karnataka Court Fee & Suit Valuation Act. Hence, I answer Issue no.7 in the affirmative.
35.Issue no.5: The contention of first defendant is that the suit is bad for non-joinder of necessary parties. According to the plaintiffs, deceased first plaintiff Michael and deceased first defendant and one Mariyappa are the owners of the suit property. Mariyappa died on 1.12.1971. He died unmarried. The daughter of first defendant i.e., Elizabeth died on 13.4.1982. There is nothing on record to show that whether Elizabeth died unmarried or not. Admittedly, another son of first defendant i.e., Vincent is not arrayed as a party to the suit. In the written statement filed by the defendant no.1 50 O.S.No.4507/1996 on 12.8.1996 itself the first defendant has stated regarding her sons and daughters including their name. The duty was cast upon the plaintiffs to bring all the legal heirs of deceased first defendant on record on her death, but the plaintiffs have not made any attempt to bring all the legal heirs of the deceased first defendant on record. Under these circumstances, the present suit is bad for non-joinder of necessary parties. Hence, I answer Issue no.5 in the affirmative.
36. Issue no.2: Undisputedly the parties to the suit are Indian Christians. The property should have been devolved under Ss.36 to 40 of the Indian Succession Act. But the relief claimed by the plaintiffs is as if they are governed by Hindu law. As discussed while answering issue nos.1, 3 & 4, the suit property was sold by deceased first defendant for the legal necessity of the family long back and the portion of the suit properties allotted to the deceased plaintiff. Under these circumstances, the plaintiffs are not entitled for any 51 O.S.No.4507/1996 share in the suit schedule property. Hence, I answer Issue no.2 in the negative.
37. Issue no.8 : In view of my discussion on the above issues, I proceed to pass the following:
ORDER The suit of the plaintiffs is dismissed.
Considering the facts and circumstances of the case, no order as to costs.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 15th day of April, 2016).
(RAVI M NAIK), I Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFFs PW.1 Josephine PW.2 Marquis 52 O.S.No.4507/1996 LIST OF DOCUMENTS MARKED FOR PLAINTIFFs Exs.P-1 Gift deed " P-2 to 24 Certified copies of sale deeds " P-25 Record of rights " P-26 Twelve photos " P-26(a) Negative LIST OF WITNESSES EXAMINED FOR DEFENDANTS DW.1 Janak Kumar Sachedev DW.2 Kannan LIST OF DOCUMENTS MARKED FOR DEFENDANTS Exs.D-1 Certified copy of gift deed " D-2 to 6 Original sale deeds " D-7 Rectification deed " D-8 Sale deed " D-9 Certified copy of order in OS no.26318/2011 " D-10 to 17 Khata Certificate & Khata extracts " D-18 to 21 Four Encumbrance certificates " D-22 to 36 15 tax paid receipts (RAVI M. NAIK), I Addl.City Civil & Sessions Judge, Bangalore.