Bangalore District Court
Smt. Rathnamma vs Smt. Venkatamma on 24 November, 2018
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 24 th Day of November, 2018
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 4331/2004
Plaintiff/s : 1. Smt. Rathnamma
Aged about 49 years,
2. Sri. Krishnappa
Aged about 47 years,
3. Smt. Rathnamma
Aged about 45 years,
4. Sri. Jayaram
Aged about 42 years,
5. Sri. Devaraj
Aged about 40 years,
6. Smt. Padma
Aged about 37 years,
7. Sri. Srinivas
Aged about 34 years,
8. Sri. Muniswamy
Aged about 31 years,
9. Sri. Suresh
Aged about 28 years,
Plaintiffs 1 to 9 are sons and
daughters of Late Muniyallappa
@ Motappa and
All are R/at No.8, Ashram Road,
2 OS.No.4331/2004
Yelachenahalli,
Kanakapura Main Road,
Bengaluru - 560 078.
[By Sri. M.M.S., Adv.]
-Vs-
Defendant/s : Smt. Venkatamma
W/o Narayanaswamy
Aged Major
Kanakapura at Yelachenahalli
Kanakapura Main Road,
Bengaluru - 78.
[By Sri. N.G., Adv.]
Date of institution of the suit 23.6.2004
Nature of the suit Partition
Date of commencement of 09.1.2012
recording the evidence
Date on which the judgment 24.11.2018
was pronounced
Total duration Years Months Days
14 05 01
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
**************
JU DG M E NT
This is a suit for Partition and separate possession and
also for permanent injunction.
2. The case of the plaintiffs is that, the suit schedule
property originally belonged to one Motagal Chinnanna and
3 OS.No.4331/2004
said Motagal Chinnanna had three sons namely
Narayanaswamy, Muniyallappa and Krishnappa and the said
Muniyallappa is none other than the father of the plaintiffs
and the plaintiffs are none other than the grand sons and
granddaughters of the said Motagal Chinnanna and the
defendant is the wife of Narayanaswamy. Late Motagal
Chinnanna during his life time had acquired certain
properties including the suit property and he has executed a
settlement deed on 31.3.1954 settling the above said
properties between all his three sons and grand children. In
view of the aforesaid settlement deed, the suit schedule
property is settled in favour of the plaintiffs and they are only
entitle for enjoyment of the suit schedule property during
their life time and the same has been clearly encumbered in
the said settlement deed dated 31.3.1954 and in fact the said
Motagal Chinnanna has clearly stated that the plaintiffs are
having absolute rights over the suit schedule property. At the
time of the settlement deed being executed, the plaintiffs
were minors and as such their father Muniyallappa was given
the possession of the suit schedule property as their natural
guardian and he was also directed not to transfer or alienate
the suit schedule property in favour of third parties. The suit
4 OS.No.4331/2004
schedule property is the self-acquired property of Motagal
Chinnanna and he had every right to deal with the same and
accordingly a special recital is being made in the settlement
deed which has been registered with the authorities
concerned. The plaintiffs' father Muniyallappa @ Motappa
has taken over the possession of the suit schedule property
from his father Motagal Chinnanna in pursuance of the
settlement deed and thereafter he was managing the suit
schedule property on their behalf and the said Muniyallappa
was innocent and illiterate and he used to put his LTM
signature since he did not know the reading and writing and
when that is so without there being any right whatsoever the
said Muniyallappa mortgaged the suit schedule property in
favour of one Garala Srinivasa Setty for a sum of Rs.8,000/-
for a period of five years and delivered the possession of the
suit schedule property in his favour. However, the mortgage
deed executed by Muniyallappa shall not be treated as
transfer by way of alienation. In fact, the amount received by
Muniyallappa was fully utilized by him only since he was
addicted to alcohol and gambling and the plaintiffs who were
minors, have no knowledge of the said mortgage transaction
between their father and Garala Srinivasa Setty and since
5 OS.No.4331/2004
their mother was also illiterate and innocent lady, they being
minors, have taken shelter under their uncle i.e.,
C.Narayanaswamy elder brother of Muniyallappa, the
husband of defendant and in view of the above fact the
husband of defendant taken over the management of the suit
schedule property and in the year 1974, the husband of
defendant took their father and mother to the Office of the
Sub-Registrar and obtained their signature/thumb
impressions under the pretext of redeeming the mortgage and
subsequently their father died in the year 1982 and again the
husband of the defendant took over the management of their
family including the suit schedule property. The further case
of the plaintiffs is that during the year 1997 in view of the
fact that some of the plaintiffs have attained majority and
they intent to live separately and decided to partition the suit
schedule property to avoid mis-understanding among
themselves and as such they approached the husband of the
defendant namely Narayanaswamy and requested him to
effect partition of the suit schedule property among
themselves and to put them in their respective shares to
enable them to live separately. But to their shock and
surprise, the said Narayanaswamy and his wife i.e., the
6 OS.No.4331/2004
defendant have turned hostile and refused to execute
partition on the pretext that they are the owners of the
property and on verification of the public records, they came
to know that on 15.06.1974, the said Narayanaswamy who
was managing the suit schedule property, has played fraud
and with malafide intention to grab the suit schedule
property has obtained the documents styled as Sale deed as
it was executed by their parents for a valuable consideration
and in fact their parents have not at all executed any sale
deed either in favour of Narayanaswamy or in favour of the
defendant and in fact their father and mother had no right
to alienate the suit schedule property against their interest
and even then they approached the defendant in the month
of May, 2004 and requested her to settle the dispute in
respect of the suit schedule property and to partition the
same by giving their respective shares. However, the
defendant who agreed for the proposal made by them called
for a Panchayath on 20.6.2004 in her house and to their
shock and surprise the defendant has refused to effect
partition and finally said she will not effect any partition and
further threatened them to alienate the suit schedule
property in favour of third persons for valuable consideration
7 OS.No.4331/2004
and hence, the plaintiffs have filed this suit for partition and
separate possession.
3. On the other hand, the defendant has filed her
written statement and except admitting her relationship with
the plaintiffs she has denied the other averments of the
plaint as false and incorrect and further contended that the
suit schedule property is the self-acquired property of Late
Metakal Chinnanna and the said Metakal Chinnanna during
his life time had acquired certain properties along with the
suit schedule property and that he had executed a settlement
deed dated 31.3.1954 by settling his properties. But he did
not settle his properties between all his sons and grandsons;
but he settled his properties as mentioned in the said
settlement deed. In the said settlement deed Late Metakal
Chinnanna had settled the suit schedule property in favour
of his second son C.Muniyellappa alone and in the said
settlement deed dated 31.3.1954 the said C.Muniyellappa
was mentioned as third son of Late.M.Chinnanna whereas
actually he was the second. The said C.Muniyellappa i.e., the
late father of the plaintiffs had taken over the possession of
ground floor of the suit schedule property from his father in
pursuance of the settlement deed and he was managing the
8 OS.No.4331/2004
same. On the date of settlement deed dated 31.3.1954,
except the plaintiff No.1 the other plaintiffs were not at all
born. In the year 1974 Late father of the plaintiffs executed
registered sale deed along with his wife and children
Jayalakshmamma, Krishnappa-plaintiff No.2 in this case,
Jayaram-Plaintiff No.4 in this case and Muniswamy plaintiff
No.8 in favour of Venkatamma-Defendant along with her late
husband C.Narayanaswamy on 15.6.1974 and based on the
registered sale deed dated 15.06.1974 the khata of the suit
schedule properties i.e., property No.85, 86 and 87 have been
transferred to the name of Venkatamma/defendant. Before
executing the sale deed in favour of the defendant by Late
father of the plaintiffs and others, he had executed registered
mortgage deed on 07.4.1971 in favour of Garala Srinivasa
Setty for a sum of Rs.8,000/- for a period of 5 years and had
delivered the possession of the suit schedule property i.e.,
ground floor. The said Muniyellappa in the registered
mortgage deed had put signature as C.Muniyellappa in
Kannada. The said C.Muniyellappa was not illiterate and he
was doing milk vending business having cows of his own and
he used to do vegetable business inside and outside the
market and he utilized the mortgage amount for his milk
9 OS.No.4331/2004
vending business and other business and also for education
of his children and other necessities of the family. To the said
mortgage deed, the wife of C.Muniyellappa had put her LTM
as witness and same was attested by one person by name
H.P.Hanumantha Rao. At the time of execution of the
Mortgage deed in the year 1971 the plaintiff No.1 to 8 were
all born and the plaintiff No.9 Suresh was not born and at
the time of execution of the mortgage deed, C.Muniyellappa
was living at Yelachenahalli in Kanakapura Road. Even
though there was five years to redeem the schedule house
property from Garala Srinivasa Setty vide Mortgage deed
dated 07.04.1971, the said Garala Srinivasa Setty without
waiting up to five years to redeem the mortgage, on
29.7.1971 executed a deed of assignment in favour of one
Acharya Ramalingam for Rs.11,000/- and the said
C.Muniyellappa who is the father of the plaintiffs had
attested by putting his signature to the said deed of
Assignment dated 29.7.1971 and wife of Muniyellappa had
attested the said Deed by putting her LTM And after
executing of the Assignment deed in favour of Acharya
Ramalingam on 29.7.1971 itself one understanding
Agreement was executed by both Acharya Ramalingam as
10 OS.No.4331/2004
First Party and C.Muniyellappa and Jayalakshmamma as
second party and for this Agreement both Muniyallappa and
Jayalakshmamma had attested the deed and they had
confirmed the Deed of Assignment in favour of Acharya
Ramalingam. The possession of the ground floor of the suit
schedule property was with Acharya Ramalingam and the
said Acharya Ramalingam demanded C.Muniyellappa and his
wife to discharge the mortgage debt and therefore, in that
critical condition C.Muniyellappa and his wife were put into
hard trouble for want of funds and at the same time they had
to perform the marriage of their two daughters and some of
their creditors who had paid hand loans started to demand to
pay their debts and as such they tried to sell away the
ground floor property which was assigned to Acharya
Ramalingam to any third party and C.Muniyellappa and his
wife had approached many people and requested to purchase
the said ground floor property, but nobody had come
forward and in that critical condition the said
C.Muniyellappa and his wife Jayalakshmamma had
approached C.Narayanaswamy i.e., late husband of the
defendant and requested him to purchase the said ground
floor and at that moment C.Narayanaswamy also had no
11 OS.No.4331/2004
much funds to pay and for the said reason the ground floor
of the suit schedule property was evaluated as Rs.20,000/-
and therefore, Late husband of the defendant had
approached the Assignee Acharya Ramalingam and had
requested him that he would purchase the ground floor for
Rs.20,000/- and Rs.11,000/- which was payable to Acharya
Ramalingam would be detained and withheld with
C.Narayanaswamy and after about 5 or 6 years he would pay
the same to Acharya Ramalingam and for that time being
Acharya Ramalingam might not demand to discharge the
mortgage amount and accordingly Acharya Ramalingam had
agreed to do so and at the same time C.Muniyellappa was
also in need of funds for the performance of the marriage of
his two daughters and also for the purpose of getting proper
education to the other children and for other expenses and
family maintenance and therefore, Muniyellappa and his wife
had requested C.Narayanaswamy to purchase the ground
floor and therefore, due to the repeated requests and
demands made by both C.Muniyellappa and his wife,
C.Narayanaswamy and defendant had agreed to purchase the
ground floor of the suit schedule property for consideration of
Rs.20,000/- and accordingly on 15.07.1974 C.Muniyellappa
12 OS.No.4331/2004
and his wife, children had alienated the said ground floor in
favour of C.Narayanaswamy and his wife Venkatamma who is
the defendant in this case for a consideration of Rs.20,000/-
and out of the said Rs.20,000/-, Rs.9,000/- was paid to
Muniyellappa and the remaining Rs.11,000/- was kept
detained with C.Narayanaswamy and Venkatamma for paying
the same to Acharya Ramalingam and by incorporating the
same terms and conditions, the sale deed was prepared on
15.06.1974 and got registered the same in favour of Late
C.Narayanaswamy and his wife Venkatamma-defendant and
to this sale deed the daughters of Muniyellappa namely
Rathnamma and Parvathamma who are the plaintiffs 1 and 3
also attested as witnesses and inspite of the registered sale
deed dated 15.06.1974 C.Narayanaswamy and Venkatamma-
defendant had not taken possession of the ground floor and
the assignee of the mortgage namely Acharya Ramalingam
himself was continued upto 08.09.1980 on which date they
paid him Rs.11,000/- and got the mortgage redeemed and
Acharya Ramalingam had executed the deed of redemption
on 08.09.1980 and got it registered and this Deed of
Redemption was attested by C.Muniyellappa and his wife
Jayalakshmamma and thereafter the defendant and her
13 OS.No.4331/2004
husband and her sons have raised first floor, second floor
and third floor and when that is so during the year 1997 the
plaintiffs along with their late mother Jayalakshmamma had
filed a declaration suit against the defendant and others in
OS.No.9424/1997 before the City Civil Judge, CCH-15 at
Bengaluru with respect to the suit schedule property. After
appearance of the defendant in the above said suit, the
defendant had filed her part of written statement and
objections to IA.No.1 and also filed IA under Order 7 Rule 11
of CPC as the plaintiffs in the above said suit had not
properly evaluated the suit & not paid proper court fee and
as such the Hon'ble Court had directed to pay the proper
court fee vide its order dated 31.3.1999, but inspite of several
opportunities the plaintiffs in OS.No.9424/1997 have not
complied with the orders dated 31.3.1999 and consequently
the above said suit in OS.No.9424/1997 was rejected vide its
orders dated 25.8.1999. Later on the plaintiffs had filed
Misc.No.564/2000 against the defendant and others before
the City Civil Judge (CCH-11) at Bengaluru and the same
was dismissed for default on 17.1.2003. And since the
plaintiffs have no title or possession over the suit schedule
properly and since there is no cause of action to file the
14 OS.No.4331/2004
present suit for the relief of partition then she prayed for
dismissal of the above suit with cost.
4. On the basis of the pleadings, one of my learned
predecessor has framed the following issues:-
1) Whether the plaintiffs prove that,
Narayanaswamy and his wife by playing
fraud on their parents obtained sale
deed in their favour in respect of suit
schedule property?
2) Whether relief claimed by plaintiffs is
barred by time under Article 109 of
Limitation Act?
3) Whether plaintiffs prove that they are in
joint possession of suit property along
with defendants?
4) Whether plaintiffs are entitle to seek
relief of declaration and possession
without seeking relief of cancellation of
sale deed alleged to be executed by their
parents?
5) Whether plaintiffs further prove that, the
husband of defendant in the year 1974
took Muniyappa and his wife to Sub-
Registrar office obtained
signature/thumb impression giving an
impression of redeeming the mortgage?
6) Whether plaintiffs are entitle for 9/10 th
share?
7) Whether plaintiffs are entitle for
injunction as prayed ?
8) What order or decree?
15 OS.No.4331/2004
5. In order to prove the above issues, the plaintiff
No.9 got himself examined as PW.1 and got marked the
documents at Ex.P1 to P5. On the other hand, G.P.A. holder
of the defendant i.e., the son of the defendant got examined
himself as DW.1 and got marked the documents at Ex.D1 to
D47 and thereafter the matter was posted for arguments.
6. And I have heard the arguments of both sides
perused the entire materials placed on record.
7. And my findings on the above issues are as
under:-
Issue No.1: In the Negative
Issue No.2: In the affirmative
Issue No.3: In the Negative
Issue No.4: In the Negative
Issue No.5: In the Negative
Issue No.7: In the Negative
Issue No.7: In the Negative
Issue No.8: As per final order, for the following:
R E A SON S
8. Issue No.1 to 7 :- Since these issues are inter-
related then they are hereby discussed commonly in order to
avoid repetition of facts.
16 OS.No.4331/2004
9. On perusal of the entire materials placed on
record by both the parties, I found that it is an admitted fact
by both the parties that originally the suit schedule property
belonged to one Metakal Chinnanna.
10. It is also an admitted fact by both the parties that
the said Metakal Chinnanna had three sons by name
C.Narayanaswamy [Late husband of defendant],
C.Muniyallappa @ Motappa [Late father of plaintiffs] and one
Krishnappa who is not at all a party to the present suit.
11. It is also an admitted fact by both the parties that
the above said Metakal Chinnanna has executed a registered
Settlement Deed dated 31.3.1954 and settled his properties
including the suit property in favour of his sons and
grandsons.
12. Now it is the specific case of the plaintiffs that in
view of the aforesaid settlement deed dated 31.3.1954, the
suit schedule property is settled in favour of the plaintiffs
and they are only entitle for enjoyment of the suit schedule
property during their life time and the same has been clearly
encumbered in the said settlement deed dated 31.3.1954 and
at the time of the said settlement deed since the plaintiffs
17 OS.No.4331/2004
were minors then their father Muniyallappa was given the
possession of the suit schedule property as their natural
guardian and he was also directed not to transfer or alienate
the suit schedule property in favour of third parties and
when that is so without there being any right whatsoever the
said Muniyallappa mortgaged the suit schedule property in
favour of one Garala Srinivasa Setty for a sum of Rs.8,000/-
for a period of five years and delivered the possession of the
suit schedule property in his favour and since their mother
was also illiterate and innocent lady and since their father
has misused the above amount for gambling and alchohol
purpose then in that situation they being minors, have taken
shelter under their uncle i.e., C.Narayanaswamy elder
brother of Muniyallappa, the husband of defendant and in
view of the above fact the husband of defendant taken over
the management of the suit schedule property and in the
year 1974, the husband of defendant took their father and
mother to the Office of the Sub-Registrar and obtained their
signature/thumb impressions under the pretext of redeeming
the mortgage and subsequently their father died in the year
1982 and again the husband of the defendant took over the
management of their family including the suit schedule
18 OS.No.4331/2004
property and when that is so during the year 1997 in view of
the fact that some of the plaintiffs have attained majority and
they intent to live separately and decided to partition the suit
schedule property to avoid mis-understanding among
themselves and as such they approached the husband of the
defendant namely Narayanaswamy and requested him to
effect partition of the suit schedule property among
themselves and to put them in their respective shares to
enable them to live separately, but to their shock and
surprise, the said Narayanaswamy and his wife i.e., the
defendant have turned hostile and refused to execute
partition on the pretext that they are the owners of the
property and on verification of the public records, they came
to know that on 15.06.1974, the said Narayanaswamy who
was managing the suit schedule property, has played fraud
and with malafide intention to grab the suit schedule
property has obtained the documents styled as Sale deed as
it was executed by their parents for a valuable consideration
and in fact their parents have not at all executed any sale
deed either in favour of Narayanaswamy or in favour of the
defendant
19 OS.No.4331/2004
13. In order to prove the above material facts though
the plaintiff No.9 got himself examined as PW.1 and got
marked the documents at Ex.P1 to P5, the same do not hold
any water as there is a lot of variance in the pleadings and
proof of the plaintiff that is on record. Now let me examine it.
14. First of all though the plaintiffs have specifically
pleaded that in the aforesaid settlement deed dated
31.3.1954 the said Metgal Chinnanna has settled the suit
schedule property in favour of the plaintiffs and during their
life time they are only entitle for enjoyment of the suit
schedule property and their father Muniyallappa was also
directed not to transfer or alienate the suit schedule property
in favour of third parties and though the said settlement deed
of Ex.P4 also corroborates the above facts, the same are of no
help to the case of the plaintiffs as Section 10 of the Transfer
of Property Act, 1882 clearly says that a condition restraining
absolute alienation is void.
15. And for better appreciation of the above facts the
said Section 10 of the Transfer of Property Act, 1882 is
hereby reiterated as below:
20 OS.No.4331/2004
"10. Condition restraining alienation - Where property
is transferred subject to a condition or limitation
absolutely restraining the transferee or any person
claiming under him from parting with or disposing of
his interest in the property, the condition or limitation
is void, except in the case of lease where the condition
is for the benefit of the lessor or those claiming under
him:
Provided that property may be transferred to or for the
benefit of a women [not being a Hindu, Muhammadan
or Buddhist], so that she shall not have power during
her marriage to transfer or change the same or her
beneficial interest therein."
16. And in fact in a ruling of AIR 2008 Kerala 38
i.e., in Bhavani Amma's case it has been clearly held that
"To impose a total restraint on transfer of property and
to impose rules which keep it out of circulation is rather
opposed to public policy irrespective of whether such
conditions are imposed by a deed of transfer, a Will or a
simple contract. A contract opposed to public policy is
unenforceable".
17. And even in another ruling of AIR 1957 Patna
570 it has been clearly held that "The Rule in this Section
that a condition of absolute restraint of alienation is
void, is funded on the principle of public policy allowing
21 OS.No.4331/2004
free-circulation or dispossession of the property. The
courts have always leant against any device to render an
estate in-alienable. This is the general and basic
principle underlying this section".
18. In the above decision, it has been clearly
discussed as below:
"A Division Bench in Jathru Phana's case
considered the scope of Section 10 of the T.P. Act in
the background of a partition deed containing a
clause that during the life time of the sharer, he
shall not sell the share allotted to him or transfer
the same in any manner. The Division Bench held
'this condition is void', because where a man
alienates his property he has the power to alienate
to any person by Law and if any condition would be
given, then the said condition would oust him of all
the powers which the Law gives him which shall be
against the public policy and therefore, such a
condition is void".
19. So in view of the above dictums and so also the
provisions of Section 10 of the T.P. Act, it has to be held in
unequivocal terms that the condition of absolute restraint of
alienation in the settlement deed of Ex.P4 dated 31.3.1954 is
rather void as it rather opposed to public policy.
22 OS.No.4331/2004
20. Secondly though the plaintiffs have further
pleaded that their father Muniyellappa without there being
any right whatsoever has mortgaged the suit schedule
property in favour of one Garala Srinivasa Setty for a sum of
Rs.8,000/- for a period of five years and delivered the
possession of the suit schedule property in his favour and
since their mother was also illiterate and innocent lady and
since their father has misused the above amount for
gambling and alcohol purpose then in that situation they
being minors, have taken shelter under their uncle i.e.,
C.Narayanaswamy elder brother of Muniyallappa, the
husband of defendant and in view of the above fact the
husband of defendant taken over the management of the suit
schedule property and in the year 1974, the husband of
defendant took their father and mother to the Office of the
Sub-Registrar and obtained their signature/thumb
impressions under the pretext of redeeming the mortgage and
got obtained a document styled as Sale deed as if it was
executed by their parents for a valuable consideration, the
same do not hold any water as except leading the self-
interested oral version of plaintiff No.9 as PW.1, the plaintiffs
23 OS.No.4331/2004
have neither examined any witnesses nor even placed any
other cogent material evidence to prove the above facts.
21. And in fact contrary to their above said plaint
pleadings and examination-in-chief affidavit of Plaintiff
No.9/PW.1, the said plaintiff No.9/PW.1 at page-21 of his
cross-examination has clearly admitted that "He has neither
pleaded in their plaint nor even deposed in his examination-
in-chief affidavit with regard to the above sale deed dated
15.6.1974" as below "ನನನನ ದದ15-6-1974 ರ ಕಕಯಪತಕದ ಬಗಗಗ ನನನ ದನವಗಯಲಲ ಅಥವನ
ಮನಖಖವಚನರಣಗಯ ಪಕಮನಣದತಕದಲಲ ಪಕಸನಸಪ ಮನಡಲಲ".
22. And further at page-20 also the above said
plaintiff No.9/PW.1 has interestingly admitted that "He do
not know whether his mother has put her signature to the
above said sale deed dated 15.6.1974 and in fact he has not
at all seen the above said sale deed" as below " ದದ15-6-1974 ರ
ಕಕಯಪತಕಕಗಕ ನನನ ತನಯ ಸಹ ಸಹ ಮನಡದನದರಗರದರಗ ಗಗಗತಸಲಲ . ನನನನ ಆ ಕಕಯಪತಕವನನನ ನಗಗನಡಲಲ",
which is rather fatal to the case of the plaintiffs as in spite of
not seeing the above said sale deed dated 15.6.1974 nor even
producing the said sale deed how can the plaintiffs contend
that the husband of the defendant has got obtained the above
said sale deed in a fraudulent manner.
24 OS.No.4331/2004
23. And even otherwise I have carefully perused the
said registered sale deed dated 15.6.1974 one produced by
the defendant at Ex.D5 and found that the same has been
duly executed by the father and mother of the plaintiffs
including the Krishnappa/plaintiff No.2 herein and so also on
behalf of the remaining plaintiffs for a valuable consideration
of Rs.20,000/- in favour of the defendant and her husband
Narayanaswamy and it further shows that the plaintiff
No.1/Rathnamma and plaintiff No.3/Parvathamma herein
have also put their signatures as attesting witness No.1 & 2.
24. And moreover with regard to the above material
facts the plaintiff No.9/PW.1 at page-19 of his cross-
examination has clearly admitted that he do not know
whether his father has executed the above said sale deed of
1974 in respect of minor plaintiffs also and he also do not
know whether the plaintiff No.1/Rathnamma had put her
signature as an attesting witness as below " 1974 ರ ಕಕಯಪತಕವನನನ ವನದ
ನರದ2, 4, 5, 7, 8 ರವರನ ಅಪನಕಪಸ ವಯಸಕರನಗದದರರದ ಅವರ ಪರವನಗಯನ ನನನ ತರದಗ ಮನಡದನದರಗರದರಗ
ಗಗಗತಸಲಲ , ಈ ಕಕಯಪತಕಕಗಕ 1 ನಗನ ವನದ ಸನಕಯನಗ ಸಹ ಮನಡದನದರಗರದರಗ ಗಗಗತಸಲಲ ".
25. And in spite of the above material facts the
plaintiffs have neither pleaded nor deposed in the evidence of
25 OS.No.4331/2004
PW.1 with regard to the participation of the plaintiff No.1 to
3 herein at the time of the due registration of the above said
sale deed of Ex.D5 dated 15.6.1974, which is once again
rather fatal to the case of the plaintiffs as non-pleading of the
presence of the plaintiff No.1 to 3 during the due execution
of the said sale deed of Ex.D5 dated 15.6.1974 clearly rebuts
the contention of the plaintiffs that there was no any fraud or
misrepresentation in obtaining the above sale deed by the
defendant and her husband.
26. On the above point in a ruling of AIR 2003
Orissa 136 one relied on by the defendant it has been clearly
held that "Specific Relief Act - Section 34, 38 - Limitation
Act - Article 59 - Sale deed - Execution of - Whether can
be called in question after prescribed period of limitation
- Document of sale questioned on the ground of fraud
allegedly practiced by vendee - Ground of fraud not
proved - Such document of sale shall be treated as
voidable one - But not ab-initio void".
27. Thirdly though the plaintiffs have contended that
their suit is not at all time barred and maintainable in Law is
concerned, the same do not hold any water as the other
26 OS.No.4331/2004
documentary evidence one produced by the plaintiffs at
Ex.P1 to P3 i.e., the copies of the proceedings of
P.Misc.No.564/2004 and so also the documentary evidence of
Ex.D16 to D24 i.e., the proceedings of suit bearing
OS.No.9424/1997 clearly shows that during the year 1997
the plaintiffs along with their late mother Jayalakshmamma
had filed a declaration suit against the defendant and others
in OS.No.9424/1997 before the City Civil Judge, CCH-15 at
Bengaluru with respect to the suit schedule property and
after appearance of the defendant in the above said suit, the
defendant had filed her part of written statement and
objections to IA.No.1 and also filed IA under Order 7 Rule 11
of CPC as the plaintiffs in the above said suit had not
properly evaluated the suit & not paid proper court fee and
as such the Hon'ble Court had directed to pay the proper
court fee vide its order dated 31.3.1999, but inspite of several
opportunities the plaintiffs in OS.No.9424/1997 have not
complied with the orders dated 31.3.1999 and consequently
the above said suit in OS.No.9424/1997 was rejected vide its
orders dated 25.8.1999 and later on the plaintiffs had filed
Misc.No.564/2000 against the defendant and others before
27 OS.No.4331/2004
the City Civil Judge (CCH-11) at Bengaluru and the same
was also dismissed for default on 17.1.2003.
28. On the above material facts, the plaintiff
No.9/PW.1 himself at page-21 of his cross-examination has
clearly admitted that "When his mother was alive she and all
the plaintiffs had filed OS.No.9424/1997 against the
defendant/Venkatamma and they had filed the above suit
against the defendant/Venkatamma and her husband
Narayanaswamy and so also against Garala Srinivasa Setty
and Acharya Ramalingam by challenging the above said sale
deed dated 15.6.1974 and so also the Release deed dated
8.9.1980" as below "ನನನ ತತಯ ಇದತದಗ, ನನನ ತತಯ ಮತತತ ನತತ ಎಲತಲ ಸಸಸರ ವಸವಕಟಮಮನವರ
ಮಸಲಸ ಅದತದ9424/1997 ಮತಡದಸದವವ. ಆ ದತವಸಯನತನ ಪಪತವತದ ಅವರ ಗವಡ ನತರತಯಣಸತಸಮ, ಗರತಳ
ಶಪಸನವತಸಶಸಟಟ ಮತತತ ಆಚತಯರ ರತಮಲವಗವ ರವರ ಮಸಲಸ ದದ15-6-1974 ರ ಕಪಯಪತಪ ಮತತತ ದದ8-9-
1980 ರ ಬಡತಗಡಸ ಪತಪವನತನ ಪಪಶನಸ ಹತಕದಸದಸವಸ ಎನತನವವದತ ಸರ".
29. And at page-22 also the above said plaintiff
No.9/PW.1 has further admitted that "During the year 2000
they had filed P.Misc. 564/2000 and his mother was also a
party to the said petition and the said petition was dismissed
for non-prosecution on 17.1.2003" as below " 2000 ನಸಸ ಇಸಸಯಲಲ ನತವವ
ಒವದತ ಸಮಸಕಸಸಸನತನ ಹತಕದಸದವವ, ಅದರ ನವದ564/2000. ಆ ಕಸಸಸನಲಲ ನನನ ತತಯ ಸಹ ಪಕಕತರರದದರತ. ಆ
ಕಸಸಸತ ದದ 17-1-2003 ರವದತ ನತವವ ಕಸಸಸನಡಸಸದಸಸ ಇದತದದಕಸಕ ವಜತ ಆಯತತ ಎನತನವವದತ ನಜ ", which
28 OS.No.4331/2004
is rather fatal to the case of the plaintiffs as in spite of the
above admitted proceedings of OS.No.9424/1997 and
P.Misc.No.564/2000 still the plaintiffs have neither sought
the relief of declaration to redeem the mortgage of Garala
Srinivasa Setty dated 7.4.1971 nor even sought the relief of
declaration to declare the sale dated 15.6.1974 as null and
void and thus on these grounds it has to be held in
unequivocal terms that the suit of the plaintiffs is time
barred and not at all maintainable in law.
30. Fourthly with regard to the alleged joint
possession of the plaintiffs over the suit schedule property
along with defendant is concerned, the same once again do
not hold any water as the above facts are also not at all
proved by the plaintiffs with cogent material evidence.
31. And in fact contrary to their pleadings and
evidence, the said plaintiff No.9/PW.1 at page-23 of his cross-
examination has clearly admitted that "During the year 2004
they were not at all joint" as below "2004 ರಲಲ ನತವವ ಒಟತಟ
ಕತಟತವಬದಲಲರಲಲಲ".
32. And even before that i.e., at page-20 and 21 of his
cross-examination also the plaintiff No.9/PW.1 has clearly
29 OS.No.4331/2004
admitted that "Since 1980 to till this day the defendant is in
possession of the suit schedule property and whereas the
plaintiffs are in possession of separate houses" as below
"1980 ರವದ ಇಲಲಯವರಸಗಗ ಪಪತವತದ ದತವತ ಆಸತಯಲಲ ವತಸವದತದರಸ ಎನತನವವದತ ಸರ. ನತವಸಲಲ ವತದಗಳಳ
ಬಸಸರಸಬಸಸರಸ ಮನಸ ಮತಡಕಸಗವಡತ ವತದವದಸದಸವಸ".
33. And lastly since the plaintiff No.9/PW.1 at page-
14 of his cross-examination has clearly admitted that they
have not at all produced any documents to show that they
were residing jointly along with the defendant/Venkatamma
at the time of filing of the suit and further admitted the due
execution of the mortgage deed dated 7.4.1971 in respect of
the suit schedule property by their father in favour of
Srinivasa Setty at page-15 of his cross-examination and
further admitted at page-19 and 20 of his cross-examination
that they have not at all issued any legal notice to the
defendant seeking partition over the suit schedule property
and further admitted the filing of the suit bearing
OS.No.9424/997 and Misc.No.546/2000 at page-21 and 22
of his cross-examination and admittedly since the plaintiffs
have not at all sought the relied of declaration with regard
the above said mortgage deed dated 7.4.1971, Assignment
deed dated 29.7.1971 and the ale deed dated 15.6.1974 and
30 OS.No.4331/2004
so also the present suit is not at all filed within 12 years from
the date of said sale deed or within three years from the date
of attaining majority by the plaintiffs then it has to be held in
unequivocal terms that the suit of the plaintiffs is not at all
maintainable and time barred.
34. And on the point of limitation and setting aside
the sale deeds, the defendant has relied upon a ruling of AIR
2015 Madras 281 wherein it has been clearly held that
"Specific Relief Act [47 of 1963], S.31 - Limitation Act
[36 of 1963], Art.59 - Suit for setting aside sale deed -
Limitation - Deed executed when plaintiffs were minor -
Sit ought to be filed within 12 years of deed or within
three years of attaining age of majority - Suit filed after
26 years of transaction and after eight years of youngest
plaintiff attaining majority - Barred by limitation ".
35. On the other hand the defendant by clearly
pleading and leading the oral evidence of her G.P.A. holder at
DW.1 and further producing the documentary evidence at
Ex.D1 to D47 has clearly rebutted the case of the plaintiffs
and further proved that the said C.Muniyellappa i.e., the late
father of the plaintiffs had taken over the possession of
31 OS.No.4331/2004
ground floor of the suit schedule property from his father in
pursuance of the settlement deed dated 31.3.1954 and on the
date of settlement deed dated 31.3.1954, except the plaintiff
No.1 the other plaintiffs were not at all born. In the year 1974
Late father of the plaintiffs executed registered sale deed
along with his wife and children Jayalakshmamma,
Krishnappa-plaintiff No.2 in this case, Jayaram-Plaintiff No.4
in this case and Muniswamy plaintiff No.8 in favour of
Venkatamma-Defendant along with her late husband
C.Narayanaswamy on 15.6.1974 and based on the registered
sale deed dated 15.06.1974 the khata of the suit schedule
properties i.e., property No.85, 86 and 87 have been
transferred to the name of Venkatamma/defendant. Before
executing the sale deed in favour of the defendant by Late
father of the plaintiffs and others, he had executed registered
mortgage deed on 07.4.1971 in favour of Garala Srinivasa
Setty for a sum of Rs.8,000/- for a period of 5 years and had
delivered the possession of the suit schedule property i.e.,
ground floor.
36. And the oral evidence of DW.1 and so also the
documentary evidence from Ex.D1 to D47 further showed
that even though there was five years to redeem the schedule
32 OS.No.4331/2004
house property from Garala Srinivasa Setty vide Mortgage
deed dated 07.04.1971, the said Garala Srinivasa Setty
without waiting up to five years to redeem the mortgage, on
29.7.1971 executed a deed of assignment in favour of one
Acharya Ramalingam for Rs.11,000/- and the said
C.Muniyellappa who is the father of the plaintiffs had
attested by putting his signature to the said deed of
Assignment dated 29.7.1971 and wife of Muniyellappa had
attested the said Deed by putting her LTM And after
executing of the Assignment deed in favour of Acharya
Ramalingam on 29.7.1971 itself one understanding
Agreement was executed by both Acharya Ramalingam as
First Party and C.Muniyellappa and Jayalakshmamma as
second party and for this Agreement both Muniyallappa and
Jayalakshmamma had attested the deed and they had
confirmed the Deed of Assignment in favour of Acharya
Ramalingam. The possession of the ground floor of the suit
schedule property was with Acharya Ramalingam and the
said Acharya Ramalingam demanded C.Muniyellappa and his
wife to discharge the mortgage debt and therefore, in that
critical condition C.Muniyellappa and his wife were put into
hard trouble for want of funds and at the same time they had
33 OS.No.4331/2004
to perform the marriage of their two daughters and some of
their creditors who had paid hand loans started to demand to
pay their debts and as such they tried to sell away the
ground floor property which was assigned to Acharya
Ramalingam to any third party and C.Muniyellappa and his
wife had approached many people and requested to purchase
the said ground floor property, but nobody had come
forward and in that critical condition the said
C.Muniyellappa and his wife Jayalakshmamma had
approached C.Narayanaswamy i.e., late husband of the
defendant and requested him to purchase the said ground
floor and at that moment C.Narayanaswamy also had no
much funds to pay and for the said reason the ground floor
of the suit schedule property was evaluated as Rs.20,000/-
and therefore, Late husband of the defendant had
approached the Assignee Acharya Ramalingam and had
requested him that he would purchase the ground floor for
Rs.20,000/- and Rs.11,000/- which was payable to Acharya
Ramalingam would be detained and withheld with
C.Narayanaswamy and after about 5 or 6 years he would pay
the same to Acharya Ramalingam and for that time being
Acharya Ramalingam might not demand to discharge the
34 OS.No.4331/2004
mortgage amount and accordingly Acharya Ramalingam had
agreed to do so and at the same time C.Muniyellappa was
also in need of funds for the performance of the marriage of
his two daughters and also for the purpose of getting proper
education to the other children and for other expenses and
family maintenance and therefore, Muniyellappa and his wife
had requested C.Narayanaswamy to purchase the ground
floor and therefore, due to the repeated requests and
demands made by both C.Muniyellappa and his wife,
C.Narayanaswamy and defendant had agreed to purchase the
ground floor of the suit schedule property for consideration of
Rs.20,000/- and accordingly on 15.07.1974 C.Muniyellappa
and his wife, children had alienated the said ground floor in
favour of C.Narayanaswamy and his wife Venkatamma who is
the defendant in this case for a consideration of Rs.20,000/-
and out of the said Rs.20,000/-, Rs.9,000/- was paid to
Muniyellappa and the remaining Rs.11,000/- was kept
detained with C.Narayanaswamy and Venkatamma for paying
the same to Acharya Ramalingam and by incorporating the
same terms and conditions, the sale deed was prepared on
15.06.1974 and got registered the same in favour of Late
C.Narayanaswamy and his wife Venkatamma-defendant and
35 OS.No.4331/2004
to this sale deed the daughters of Muniyellappa namely
Rathnamma and Parvathamma who are the plaintiffs 1 and 3
also attested as witnesses and inspite of the registered sale
deed dated 15.06.1974 C.Narayanaswamy and Venkatamma-
defendant had not taken possession of the ground floor and
the assignee of the mortgage namely Acharya Ramalingam
himself was continued upto 08.09.1980 on which date they
paid him Rs.11,000/- and got the mortgage redeemed and
Acharya Ramalingam had executed the deed of redemption
on 08.09.1980 and got it registered and this Deed of
Redemption was attested by C.Muniyellappa and his wife
Jayalakshmamma and thereafter the defendant and her
husband and her sons have raised first floor, second floor
and third floor.
37. Even though the DW.1 was thoroughly cross-
examined by the plaintiffs still nothing worthwhile has been
elicited to discard the above said oral and documentary
evidence of the defendant that are placed on record.
38. And further though the defendant has also not
lead the oral evidence of any witnesses, the same is not at all
fatal to her case as mortgaging of the suit property to the said
36 OS.No.4331/2004
Garala Srinivasa Setty through the mortgage deed of Ex.D1
dated 7.4.1971 is rather pleaded and admitted by the
plaintiff No.9/PW.1 himself.
39. And moreover since the plaint copy of Ex.P3
pertaining to P.Misc.No.564/2000 one produced by the
plaintiffs themselves clearly shows that the present plaintiffs
along with their mother had filed the said suit against the
present defendant and her husband and so also against the
above said Garala Srinivasa Setty and Acharya
K.Ramalingam by challenging the said mortgage deed dated
7.4.1971, the Assignment deed dated 8.9.1980 and so also
the sale deed dated 15.6.1974 then as per Section 58 of the
Indian Evidence Act, the above admitted facts need not be
further proved by the defendant.
40. And lastly on the point of limitation the defendant
has relied upon a ruling of AIR 2009 Karnataka 112
wherein it has been clearly held that "Limitation Act [36 of
1963], Art.109, Art.58 - Declaratory suit - Suit for
declaration that alienation of joint family property by
father is null and void - Parties to suit are Hindus and
are governed by Mtakshara Law - Suit property,
37 OS.No.4331/2004
alienated is a joint family property - Said alienation is
by father of plaintiff and plaintiff is not a party and has
not consented for alienation - Prayer in suit is, to set
aside father's alienation of joint family property -
Transaction cannot be said to be family settlement - It is
Art.109 in schedule of Act which applies and not Art.58
- Alienee has taken possession of property in pursuance
of alienation - Counting 12 years from date of taking
possession suit was well within limitation."
41. And above all on the point of non-seeking of the
declaratory reliefs to set aside the mortgage deed, assignment
deed and sale deed also the defendant has relied upon a
ruling of AIR 2001 S.C. 2607 wherein the Hon'ble Supreme
Court of India has clearly held that "Hindu Minority and
Guardianship Act [32 of 1956], S.8(2) - Limitation Act
[36 of 1963], Art.60 - Sale by guardian without prior
permission of Court - Is voidable - Not ab initio void -
Suit for recovery of possession from purchaser filed by
minor on his attaining majority - No prayer for setting
aside sale deeds made - Such prayer subsequently
added by amendment - Amendment however made after
38 OS.No.4331/2004
period of 3 years have elapsed from date minor attained
majority - Suit liable to be dismissed."
42. So in view of the discussion made above I am of
the opinion that since the plaintiffs have failed to prove that
their parents had no right to sell the suit schedule property
and further failed to prove that the defendant and her
husband Narayanaswamy by playing fraud on their parents
have fraudulently obtained a sale deed during the year 1974
in respect of the suit schedule property with cogent material
evidence and further failed to prove that they and the
defendant are in joint possession of the suit schedule
property with cogent material evidence and since the
defendant has clearly rebutted the case of the plaintiffs and
further proved that the parents of plaintiffs and so also the
plaintiff No.2/Krishnappa have sold the suit schedule
property in favour of the defendant and her husband for legal
necessity during the year 1974 and further proved that the
plaintiff No.1 and 3 namely Smt.Rathnamma and
Parvathamma have also put their signatures as attesting
witnesses to the above said sale deed dated 15.6.1974 and
further proved that the suit of the plaintiffs without seeking
the relief of declaration and possession and also without
39 OS.No.4331/2004
seeking the cancellation of sale deed is not at all
maintainable in law and also time barred and since the
absolute restraint on alienation of suit property in the
aforesaid Settlement deed of Metakal Chinnanna dated
31.3.1954 is void as per Section 10 of the Transfer of
Property Act, 1882 then the plaintiffs are not at all entitled to
any reliefs as sought by them and accordingly I have
answered issue No.1 in the negative, issue No.2 in the
affirmative, issue No.3 to 7 in the negative.
43. Issue No.8:- In view of the discussion made on
issue No.1 to 7 and further holding issue No.1 in the
negative, issue No.2 in the affirmative, issue No.3 to 7 in the
negative, I proceed to pass the following order:-
ORDER
The suit of the plaintiffs for the relief of partition, separate possession and permanent injunction is hereby dismissed with cost.
Draw a decree accordingly.
(Dictated to the judgment writer on computer, corrected and then pronounced by me in the open court, on this the 24th day of November, 2018).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
40 OS.No.4331/2004ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 Suresh List of documents exhibited for plaintiffs:
Ex.P1 Certified copy of Order sheet in P.Misc.No.564/2000 Ex.P2 Certified copy of Petition in P.Misc.No.564/2000 Ex.P3 Certified copy of plaint filed along with P.Misc.No.564/2000 Ex.P4 Certified copy of Settlement deed Ex.P5 Genealogical tree List of witnesses examined for defendants:
DW.1 N.Umesh List of documents exhibited for defendants:
Ex.D1 Deed of Mortgage
Ex.D2 S.P.A.
Ex.D3 Certified copy of Settlement deed
dtd.31.3.1954
Ex.D4 Assignment deed dtd.29.7.1971
Ex.D5 Registered sale deed dtd.15.6.1974
Ex.D6 Registered Discharge deed dtd.8.9.1980
Ex.D7 Encumbrance certificate
Ex.D8 Uttara pathra
Ex.D9 & 10 2 Notices issued by BMP
Ex.D11 37 Tax paid receipts
Ex.D12 & 13 2 Certified copies of order sheets in
P.Misc.No.464/2000
Ex.D14 Certified copy of Petition in
P.Misc.No.464/2000
41 OS.No.4331/2004
Ex.D15 Certified copy of plaint
Ex.D16 Certified copy of order sheet in
OS.No.9424/1997
Ex.D17 Certified copy of decree
Ex.D18 Certified copy of I.A.
Ex.D19 Certified copy of plaint
Ex.D20 Certified copy of W.S. in
OS.No.9424/1997
Ex.D21 Certified copy of I.A.
Ex.D22 Certified copy of objection to I.A.
Ex.D23 Certified copy of I.A.2
Ex.D24 Certified copy of objection to IA.2
Ex.D25 Agreement of Sale dtd.29.7.1971
Ex.D26 to 28 3 Khata certificates Ex.D29 to 31 3 Khata extracts Ex.D32 to 46 15 Property tax paid receipts Ex.D47 Discharge summary XVII Addl. City Civil & Sessions Judge, Bengaluru.Digitally signed by R RAVI DN: cn=R RAVI,ou=HIGH COURT
R RAVI OF KARNATAKA,o=GOVERNMENT OF KARNATAKA,st=Karnataka,c=IN Date: 2018.11.29 17:12:37 IST