Bangalore District Court
Smt.Ambujamma vs ) Sri.K.Balakrishna Reddy on 21 January, 2020
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for Judgment
in suits (R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY : (CCCH.11)
Dated this the 21st day of January, 2020
PRESENT: Sri.Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No : 5671/2014
PLAINTIFF : SMT.AMBUJAMMA,
Aged about 72 years,
D/o.late Sri.Poojari Dodda Govinda Reddy
W/o.late Sri.P.Sanjeeva Reddy,
R/at Mahadeva Mangalam,
Mahadeva-Mangalam Panchayat,
Gangadhara Nelluru Mandalam,
Chittor District (A.P)
Reptd.by Guardian -Sri.K.Shankar Reddy
S/o.late Sri.Kannaiah Reddy,
Aged about 42 years.
[By Pleader Sri.Ashok Kumar.K.R]
-VS-
DEFENDANTS : 1) Sri.K.Balakrishna Reddy,
[since deceased by LRs]
1(a). Smt.Rajeshwari (Wife)
Aged about 50 years.
OS.NO: 5671/2014
2
1(b). Sri.B.Jyotheswar (Son)
Aged about 28 years.
1(c). Sri.B.Suresh (Son)
Aged about 26 years.
All are R/at: No.144/1-B-1,
2nd Main Road, 2nd Block,
Thyagarajangar,
Bengaluru -560028.
[By Pleader Sri.N.R.Naik]
2. Smt.Rangamma,
Aged about 78 years,
D/o.late Sri.Poojari Dodda Govinda Reddy
W/o.late Sri.Kannaiah Reddy,
R/at: Mahadeva Mangalam,
Mahadeva-Mangalam Panchayat,
Gangadhara Nelluru Mandalam,
Chittor District (A.P)
[By Pleader Sri.A.Subramanya Prasad]
3. Sri.Narayana Murthy (Tenant)
R/at : No.144/1-B-1, Ground Floor,
2nd Main Road, 2nd Block, Thyagarajanagar,
Bengaluru -560 028.
[Exparte]
4. Sri.Anand, (Tenant)
R/at : No.144/1-B-1, Ground Floor,
2nd Main Road, 2nd Block, Thyagarajanagar,
Bengaluru -560 028.
[Exparte]
5. Smt.Paribai (Tenant)
W/o.late Sri.Eshwar Rao,
R/at : No.144/1-B-1, Ground Floor,
2nd Main Road, 2nd Block, Thyagarajanagar,
Bengaluru -560 028.
[Exparte]
OS.NO: 5671/2014
3
6. Subramanya Reddy
[Deleted]
Date of Institution of the suit : 24.07.2014
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 25.08.2014
Date on which the Judgment was
pronounced : 21.01.2020
Year/s Month/s Day/s
Total Duration : 05 05 27
---
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
OS.NO: 5671/2014
4
JUDGMENT
This suit is filed by Plaintiff for partition and separate possession of her half share in suit schedule property by declaring that registered Partition Deed dated 18.10.2002 is null and void and not binding on her; and also, for permanent injunction, mesne profits and cost of the suit.
2) Plaintiff's case, in brief, is that, Plaintiff, 2 nd Defendant and Smt.Andalamma are daughters of late Sri.Poojari Dodda Govinda Reddy. Defendants No. 3 to 6 are tenants of suit schedule property. Defendant No.1 is the son of Defendant No.2, carrying on profession as building contractor cum Mason.
3) It is stated that, property bearing Old No.8/2, present BMP katha No.144/B, situate at 2nd Cross, Thyagarajanagar (Yediyur Nagasandra), II Block, Ward No.167 (Old No.56), Bengaluru, measuring OS.NO: 5671/2014 5 East to West: 50 feet and North to South: 40 feet is a separate and self acquired property of late Sri.Poojari Dodda Govinda Reddy, having purchased the same from its previous owner vide registered Sale Deed dated 13.04.1962. Late Sri.Poojari Dodda Govinda Reddy bequeathed the said property in favour of his three daughters by registered Will dated 30.06.1988, vide Document No.82/88-89, registered in the office of Sub- Registrar, Basavanagudi, Bengaluru. Late Sri.Poojari Dodda Govinda Reddy bequeathed two portions of schedule property in favour of Plaintiff and Defendant No.2 to an extent of 12.5 feet East to West and 50' North to South each to Plaintiff and Defendant No.2. Remaining portion measuring 50' x 15' has been bequeathed in favour of his 3 rd daughter Smt.Andalamma. Late Sri.Poojari Dodda Govinda Reddy died on 24.01.1999. After his demise, Plaintiff, Defendant No.2 and Smt.Andalamma acted upon said Will being OS.NO: 5671/2014 6 beneficiaries of the said Will. They applied for bifurcation and transfer of katha in BBMP on 19.06.2000 in respect of their respective portions in their names, on the basis of the said Will and separate katha numbers were entered in respect of their respective portions.
4) It is stated that, Plaintiff and Defendant No.2 were jointly enjoying their respective portions, [hereinafter referred to as 'suit schedule property'] as the same are adjacent to each other. After sometime, 2nd Defendant and Plaintiff started to construct a house in their portions. Since Plaintiff is deaf and dumb and she has no worldly knowledge, suit schedule property was taken care of by Defendants No.1 and 2. Having taken undue advantage of Plaintiff's disability, 1st and 2nd Defendants colluded each other in order to knock off Plaintiff's portion in suit schedule property and got registered 'Hissa Patra' on 02.01.2001 without OS.NO: 5671/2014 7 the knowledge of Plaintiff. Thereafter, said 'Hissa Patra' was got cancelled vide Deed of Cancellation dated 18.10.2002, as Defendant No.1 objected the same.
5) It is stated that, 1st and 2nd Defendants colluded each other and got registered Partition Deed dated 18.10.2002 without the knowledge of Plaintiff, wherein, suit schedule property has been shown to be allotted to the share of 1 st Defendant and Plaintiff and Defendant No.2 have been shown to have taken a sum of Rs.10,000/- each as their share.
6) It is stated that, in the year 2001-02, Plaintiff and 2nd Defendant jointly constructed a residential house in suit schedule property. At that time, 1 st and 2nd Defendants have created said Partition Deed by playing fraud upon Plaintiff. Defendant No.1 got transferred katha of suit schedule property in his name. Defendants No.1 and 2 by OS.NO: 5671/2014 8 colluding each other created said Partition Deed against the interest of Plaintiff having taken undue advantage of Plaintiff's deaf and dumbness, which came to the notice of Plaintiff only in the month of April, 2014, as Defendants No.1 and 2 denied to give her share of rental income in suit schedule property. Plaintiff caused a legal notice on 05.05.2014 to both the Defendants calling upon them to part with payment of rental income derived from house property from the date of construction. On receipt of said notice, Defendants No.1 and 2 gave an untenable reply dated 13.05.2014. Hence, prays for decree.
7) Defendant No.1, in his written statement, has stated that, Plaintiff has been represented by one Sri.K.Shankar Reddy, who claims to be the guardian of Plaintiff without being appointed as guardian of Plaintiff, hence, he cannot file present suit on behalf of Plaintiff.
OS.NO: 5671/2014 9
8) It is stated that, suit has been filed by Plaintiff for re-opening partition which has already been taken place on 18.10.2002 in the very presence of Plaintiff and Defendants. Having knowledge of the said document, now, Plaintiff cannot re-open for partition or claim share in suit schedule property after lapse of several years, hence, suit is barred by limitation.
9) It is stated that, husband of Plaintiff and father of 1st Defendant, being brothers, got married Plaintiff and 2nd Defendant respectively. Plaintiff's husband died without leaving any property in his name. So called guardian has no right to protect the interest of Plaintiff. Suit has been brought against his own brother representing Plaintiff with an intention to harass him.
10) It is stated that, Plaintiff was allotted property under Will and it is her self acquired property, accordingly, she has disposed of the OS.NO: 5671/2014 10 same as per her wish. Plaintiff has no right, title or interest in suit schedule property, as she has relinquished her right in the year 2002 by receiving her share, hence, question of claiming rental income does not arise. 1st Defendant has constructed house in suit schedule property by availing loan from Financial Institution. Said loan has been cleared from the rental income. Whatever the improvement that has been made by 1st Defendant is on his own right and investment. Defendants No.3 to 6 are not necessary parties to this proceeding. Suit is liable to be dismissed for mis-joinder of parties.
11) It is stated that, in the year 2002, Plaintiff voluntarily came along with 2nd Defendant, who is the sister of Plaintiff and they voluntarily executed document by relinquishing their rights on receipt of consideration amount. Such relinquishment of right is binding on Plaintiff and Defendant No.2.
OS.NO: 5671/2014 11 Without seeking declaratory relief, Plaintiff cannot seek partition of suit schedule property. Defendant No.1 mortgaged suit schedule property in favour of Bank of Baroda and put up construction of building. Defendant has also availed loan from Kaveri Co-operative Bank Ltd., Banashankari, Bengaluru, for construction of building in suit schedule property. In the year 2002, there was no permanent structure in suit schedule property.
12) It is stated that, 1st Defendant paid consideration amount and right, title and interest in suit schedule property got relinquished in his favour. Suit filed after 12 years by Plaintiff is not maintainable. No documents have been placed by Plaintiff to show that Defendants No.3 to 6 are paying rent in respect of suit schedule property to 1st Defendant. Rental income shown by Plaintiff is OS.NO: 5671/2014 12 not true and correct. Hence, prays for dismissal of suit.
13) 2nd Defendant, in her written statement, has denied the contentions taken by 1st Defendant in his written statement and reiterated the plaint averments by contending that, Partition Deed came to be executed with false assurance and representation by Defendant No.1, as said document was required to put up construction on suit schedule property by raising bank loan. Hence, prays for dismissal of suit.
14) On the basis of rival pleadings of the parties, this Court has framed the following Issues for consideration :
1) Whether the Plaintiff proves that herself and Defendants 1 and 2 are members of Hindu Undivided Family?
2) Whether the Plaintiff further proves that the partition deed dt.18.10.2002 is not binding on her and the same is null and OS.NO: 5671/2014 13 void unenforceable against the Plaintiff?
3) Whether the Plaintiff is entitled for ½ and share in the suit schedule property?
4) Whether the Plaintiff is entitled for the relief of permanent injunction?
5) Whether the Plaintiff is entitled for mesne profit out of rents generated from suit schedule property which is fallen to the share of Plaintiff as alleged in the plaint?
6) Whether the Defendants 1 and 2 prove that the Plaintiff already filed a suit for re-opening partition which was already took place on 18.10.2002?
7) Whether the Plaintiff is entitled for the relief claimed?
8) What order or decree?
ISSUE NO.6 IS MODIFIED AS FOLLOWS :
" 6. Whether 1st Defendant proves that partition has already been taken place in respect of suit schedule property on 18.10.2002 in the presence of Plaintiff and Defendants No.1 and 2? "
ADDITIONAL ISSUES FRAMED ON 06.08.2019 :
(1) Whether suit is barred by law of limitation?
OS.NO: 5671/2014 14 (2) Whether suit is bad for mis-
joinder of Defendants No.3 and 4?
(3) Whether Defendant No.1 proves that, Plaintiff without seeking declaration in respect of Partition dated 18.10.2002, cannot claim partition of suit schedule property?
(4) Whether Court fee paid is improper?
15) In support of Plaintiff's case, guardian of Plaintiff, Sri.K.Shankar Reddy has been got examined as P.W.3 and two witnesses have been examined as P.Ws.1 and 2 and got marked Exs.P.1 to P.18.
In support of Defendants' case, legal heir of deceased 1st Defendant, Sri.Suresh.B and Defendant No.2, Smt.K.Rangamma have been examined as DWs.1 and 2 and got marked Exs.D.1 to D.30.
16) Heard. Perused the record.
OS.NO: 5671/2014
15
17) My findings to the above Issues are :
Issue No.1 - Struck off vide Order dated : 14.01.2020 Issue No.2 - In the Affirmative; Issue No.3 - In the Affirmative; Issue No.4 - In the Affirmative; Issue No.5 - In the Affirmative; as per final order;
Issue No.6 - In the Negative;
Issue No.7 - In the Affirmative;
Addl.Issue No.1 -In the Negative; Addl.Issue No.2 -In the Negative; Addl.Issue No.3 -In the Negative; Addl.Issue No.4 -In the Negative;
Issue No.8 - As per final order, for the following :
REASONS
18) Issue No.1: As this issue has been erroneously framed, this Issue has been struck off vide Order dated 14.01.2010.
19) Issue Nos. 2 and 6 : This suit came to be filed by Plaintiff for partition and separate OS.NO: 5671/2014 16 possession of her half share in suit schedule property and for declaring that Partition Deed dated 18.10.2002 as null and void and same is not binding upon her.
20) Plaintiff's contentions are that, Plaintiff, 2 nd Defendant and Smt.Andalamma are daughters of late Sri.Poojari Dodda Govinda Reddy. Late Sri.Poojari Dodda Govinda Reddy purchased property bearing Old No.8/2, present BMP katha No.144/B, situate at 2nd Cross, Thyagarajanagar (Yediyr Nagasandra), II Block, Ward No.167 (Old No.56), Bengaluru, measuring East to West: 50 feet and North to South: 40 feet from its previous owner vide registered Sale Deed dated 13.04.1962. Said property was his self acquired property. During his life time, he bequeathed the said property to his three daughters by his last Will dated 30.06.1988, vide Document No.82/88-89, registered in the office of Sub-Registrar, Basavanagudi, Bengaluru, OS.NO: 5671/2014 17 whereby, he bequeathed an extent of 12½ feet East to West and 50 feet North to South each, to Plaintiff and Defendant No.2 and remaining portion was bequeathed to Smt.Andalamma. Will was acted upon. Katha was effected in their names in respect of their respective portions. Plaintiff and Defendant No.2 were enjoying their portions jointly, since same were adjacent to each other. Plaintiff and Defendant No.2 were close to each other. Both are married to full brothers of same family and living in one roof at their matrimonial home at Chittor District, Andhra Pradesh. Property was taken care of by Defendants No.1 and 2, as Plaintiff has no worldly knowledge and being deaf and dumb. Defendant No.1, having taken advantage of Plaintiff's innocence and her staying at Chittor District, managed and maintained the property. Rents and advances were collected and taxes were paid to revenue authority by him.
OS.NO: 5671/2014 18
21) It is contended that, in order to deny the right of Plaintiff, Defendants No.1 and 2, having colluded each other, got registered 'Hissa Patra' dated 02.01.2001 without the knowledge of Plaintiff. Later, said 'Hissa Patra' got cancelled vide Deed of Cancellation of Hissa Patra dated 18.10.2002 and thereafter, 1st and 2nd Defendants, having colluded each other, created Partition Deed dated 18.10.2002 without the knowledge of Plaintiff. Under Partition Deed, entire suit schedule property has been shown in the name of Defendant No.1 and Plaintiff and Defendant No.2 were shown to have taken a sum of Rs.10,000/- each, towards their respective shares. Said Partition Deed has been created taking undue advantage of Plaintiff's deaf and dumbness. She was not represented by her care taker viz., her husband or her foster son. Defendants have played fraud upon Plaintiff in order to knock off the suit schedule property.
OS.NO: 5671/2014 19
22) 1st Defendant contends that, suit has been filed by Plaintiff for re-opening the partition which has already been taken place on 18.10.2002 in the presence of Plaintiff, 1st and 2nd Defendants. Plaintiff is having knowledge of execution of said document. She cannot re-open partition or claim share after lapse of several years. Her suit is barred by limitation. Plaintiff was allotted property under Will and it was her self acquired property and she has disposed of the same in accordance with her will. In Partition Deed itself, Plaintiff has relinquished her right in respect of suit schedule property in favour of 1st Defendant, after receipt of consideration. At the time of relinquishing her right, there was no construction over the suit schedule property, same was used for cow shed. After having katha in the name of 1st Defendant, plan was got sanctioned and constructed building by spending huge amount, hence, property is not available for partition.
OS.NO: 5671/2014 20
23) It is contended that, in the year 2002, Plaintiff voluntarily came along with 2nd Defendant, who is her sister and executed document relinquishing their rights on receipt of consideration amount.
24) 2nd Defendant contends that, 'Hissa Patra' and Cancellation Deed of Hissa Patra were done at the request and convenience of 1 st Defendant without explaining the contents and notifying the consequences of said documents. Partition Deed dated 18.10.2002 is got created by showing some paltry sum. No such consideration is received by Plaintiff and Defendant No.2. Said document came to be created with false assurance and representation of Defendant No.1, as said document is required to put up construction over suit schedule property by raising bank loan. No right, title, interest or possession was delivered to 1 st Defendant in suit schedule property.
OS.NO: 5671/2014 21
25) In support of Plaintiff's case, Sri.K.Shankar Reddy, being appointed as guardian by this Court, has been examined as P.W.3 and got marked Exs.P.1 to P.18. P.W.3 has reiterated the averments made in the plaint in his examination-in-chief.
26) Ex.P.1 is out-patient card of Plaintiff issued by Victoria Hospital, Bengaluru. It shows that Plaintiff visited Victoria Hospital, Bengaluru, on 08.08.2014. Ex.P.2 is Certificate for the persons with disabilities issued by Doctor of Victoria Hospital, Dr.M.Mahesh Babu and countersigned by Dr.Kantharaj.J, wherein, it has been mentioned that, Plaintiff has 80% speech and hearing disability. Ex.P.3 is Medical Certificate for deaf and dumb issued by President, Regional Medical Board, S.V.R.R.Government General Hospital, Tirupathi, which goes to show that, Plaintiff has 100% hearing disability in her right and left ears. Ex.P.4 is Ration Card of Sri.P.Sanjeeva Reddy, who is the husband of Plaintiff, wherein, OS.NO: 5671/2014 22 names of Plaintiff and her foster son, Mr.Sankar Reddy have been mentioned. Ex.P.5 is certified copy of 'Hissa Patra' dated 02.01.2001 which is alleged to be executed by Plaintiff and Defendant No.2 in favour of Defendant No.1. Ex.P.6 is certified copy of Cancellation Deed dated 18.10.2002 alleged to be executed between Plaintiff and Defendant No.2, whereunder, 'Hissa Patra' dated 02.01.2001 has been cancelled. Ex.P.7 is certified copy of Partition Deed which is allegedly executed between Plaintiff, Defendant No.1 and Defendant No.2, whereby, suit schedule property has been shown to be allotted to Defendant No.1. Ex.P.8 is katha extract dated 27.03.2014 which stands in the name of 1st Defendant. Ex.P.9 is Encumbrance Certificate for the period from 01.04.2000 to 31.03.2004, which goes to show that partition deed, cancellation deed and partition deed have been registered in the office of Sub-Registrar, Basavanagudi. Ex.P.10 is 'nil' encumbrance certificate in respect of suit schedule OS.NO: 5671/2014 23 property. Ex.P.11 is legal notice dated 05.05.2014 got issued by Plaintiff to Defendants No.1 and 2, wherein, Plaintiff demanded for partition and payment of mesne profits. Exs.P.12 to P.14 are acknowledgments for having served the notice to Defendants No.1 and 2. Ex.P.15 is notice dated 05.06.2014 issued by counsel for Plaintiff to Defendants No.1 and 2 saying that reply notice issued by Defendant No.1 has not been served to Plaintiff. Ex.P.16 is intimation slip issued by Postal Department. Exs.P.17 and P.18 are RPAD cover along with legal notice.
27) Defendant No.1, in support of his case, has been examined as D.W.1, he has reiterated the averments made in his written statement. Exs.D.1 to D.30 have been marked on behalf of Defendant No.1.
28) Exs.D.1 and D.2 are Katha Certificate and katha extract, which disclose the name of OS.NO: 5671/2014 24 Smt.Rajeshwari. Ex.P.3 is computer generated receipt of property tax. Exs.P4 and P.5 are katha certificate and katha extract, which stand in the name of 1st Defendant. Ex.D.6 is House Tax Assessment Register, which is in the name of 1 st Defendant. Ex.D.7 is plan got approved by Assistant Executive Engineer. Ex.D.8 is House Tax Assessment Register for the period from 01.04.1996 to 27.02.2002, which stands in the name of Defendant No.1. Ex.D.9 is Certificate issued by BBMP, which indicates that katha of suit schedule property has been mutated in the name of Defendant No.1.
29) Ex.D.10 is application submitted by Defendant No.1 for issuance of katha certificate and katha extract with special intimation issued by Assistant Revenue Officer dated 13.07.2001 and 11.12.2000 and Notice-cum-Special Notice dated 26.07.2004, which disclose that in the beginning OS.NO: 5671/2014 25 separate Municipal numbers were given to the portions bequeathed to Plaintiff and Defendant No.2 as 'B.1' and 'B.2' and later, on the application of Defendant No.1, said two portions have been amalgamated as 'B.1'.
30) Exs.D.11 to D.13 are Encumbrance Certificates. Ex.D.14 is Clearance Certificate issued by Bank of Baroda. Ex.D.15 is Simple Mortgage Deed executed by Defendant No.1 in favour of Kaveri Gramina Bank in respect of suit schedule property. Ex.D.16 is Discharge Deed executed by Kaveri Gramina Bank in favour of wife of Defendant No.1. Ex.D.17 is reply notice dated 13.05.2014 issued by Defendant No.1 to the notice dated 05.05.2014 issued by Plaintiff. Ex.D.18 is RPAD. Ex.D.19 is Settlement Deed. Ex.D.19(a) is translated copy of Settlement Deed. Ex.D.20 is Sale Deed and Ex.D.20(a) is translated copy of Sale Deed. Ex.D.21 is Sale Deed and Ex.D.21(a) is translated copy of OS.NO: 5671/2014 26 Sale Deed. Ex.D.22 is sale deed and Ex.D.22(a) is translated copy of Ex.D.22. Ex.D.23 is certified copy of plaint in O.S.No.348/2012. Ex.D.24 is certified copy of written statement in O.S.No.348/2012. Ex.D.25 and Ex.D.26 are applications filed in O.S.No.348/2012. Ex.D.27 is original 'Hissa Patra'. Ex.D.28 is original Cancellation Deed and Ex.D.29 is original Partition Deed [Certified copies of Exs.D.27 to D.29 have been marked as Ex.P.5 to P.7]. Ex.D.30 are photographs marked through cross-examination of D.W.2.
31) In this suit, Plaintiff has been represented by Sri.K.Shankar Reddy. Said Sri.K.Shankar Reddy has been permitted to represent as guardian of Plaintiff and to prosecute this suit on behalf of Plaintiff as prayed for in I.A.No.1 filed under Order 32 Rule 15 of CPC vide Order dated 30.10.2014. It is pertinent to mention that, before appointing said Sri.K.Shankar Reddy as guardian of Plaintiff, inquiry was OS.NO: 5671/2014 27 conducted by this Court on the application at I.A.No.1. Two witnesses viz., Dr.Kantharaj and Dr.M.Mahesh Babu of Victoria Hospital, Bengaluru, were examined as PWs.1 and 2, who had examined Plaintiff in Victoria Hospital, Bengaluru, regarding her hearing and speech impairment. Three documents viz., OPD Card and Medical Certificates got marked to establish Plaintiff's disability at Exs.P.1 to P.3. This Court, after considering oral testimony of PW.1 and PW.2 and documentary evidence at Exs.P.2 and P.3, specifically held that, Plaintiff is deaf and dumb. Para-13 of Order dated 30.10.2014 passed on I.A.No.1 reads thus :
"13. As already pointed out the materials on record clearly indicate that the Plaintif is deaf and dumb. The certificates issued by Doctors go to show that the Plaintif is sufering from congenital deafness and that she has got about 80% physical impairment on account of the same. According to the Plaintif she is aged about 72 years and she is residing at Chittor District of Andhra Pradesh. In the above circumstances, this court can presume difficulty of Plaintif in proper communicating her wishes, views and thoughts to others including her counsel. As such, this court holds that there are sufficient materials on record to hold that the Plaintif has got mental infirmity and OS.NO: 5671/2014 28 that she needs assistance of a guardian to represent her and to prosecute the case on her behalf."
32) Having considered the disability of Plaintiff, this Court has appointed Sri.K.Shankar Reddy as guardian of Plaintiff in this suit. Against the said order, 1st Defendant preferred Writ Petition in W.P.No.51620/2014(GM-CPC) before the Hon'ble High Court of Karnataka, which came to be dismissed after upholding the order of this Court appointing Sri.K.Shankar Reddy as guardian of Plaintiff in this suit. When matter being thus, at this fag end of the case, once again Defendant No.1 has questioned the validity of the order appointing guardian of Plaintiff and tried to unsettle the matter which has already been settled, contending that, it was mandatory for the Court to examine Plaintiff as to Plaintiff's incapability while appointing guardian ad litem under Order XXXII Rule 15 of CPC and therefore, non examination of Plaintiff by the Court vitiates the order for appointment of guardian in this OS.NO: 5671/2014 29 suit. In the light of the contention of Defendant No.1, it is relevant to extract Order XXXII Rule 15 of CPC. It reads thus :
"[Rule 15. Rules 1 to 14 (except Rule 2- A) to apply to person of unsound mind.- Rules 1 to 14 (except Rule 2-A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.]"
33) Order XXXII Rule 15 states that, Rules 1 to 14 of Order XXXII except Rule 2-A shall apply to persons who are found to be incapable by the Court on enquiry. A bare reading of Order XXXII Rule 15 of CPC makes it clear that, enquiry shall be held regarding incapability of person. It does not mandate the Court to examine person, who is found to be incapable by reason of any mental infirmity, of protecting his interest when suing or being sued.
OS.NO: 5671/2014 30
34) Defendant No.1 has placed reliance on judgment in Meesala Ramakrishan Vs. State of A.P. [1994 AIR SCW 1978] and has submitted that, under Section 119 of the Indian Evidence Act, evidence given by sign is admissible. Ratio laid down in the judgment supra is that, "evidence given by sign is admissible and taken to be oral evidence". No doubt, Section 119 of the Evidence Act deals with competency of dumb evidence. When a dumb witness appears before the Court as a witness to give his oral evidence, his evidence may be given by writing or by sign before the Court and same shall be considered as oral evidence. Said principal of law cannot be made applicable in this case. Here, in this case, on account of Plaintiff's deaf and dumbness, this Court has appointed guardian ad litem, after conducting proper enquiry on application filed by Plaintiff and same was upheld by the Hon'ble High Court of Karnataka on its being challenged by Defendant No.1. Said matter is no OS.NO: 5671/2014 31 longer res integra, as the same has attained finality. Under such circumstances, there is no reason for Defendant No.1 to contend that, order for appointing guardian vitiates by reason of non- examination of Plaintiff.
35) It is an admitted position that, suit schedule property originally belonged to the father of Plaintiff and Defendant No.2 late Sri.Poojari Dodda Govinda Reddy, who had purchased the same from its previous owner vide registered Sale deed dated 30.04.1962. He made a registered Will dated 30.06.1988 and bequeathed two portions of suit schedule property in favour of Plaintiff and Defendant No.2, which measures East to West : 12.5 feet and North to South : 50 feet each. Third portion was bequeathed to another daughter Smt.Andalamma, measuring 15' x 50'. After demise of testator, on the basis of Will, katha was entered in the names of Plaintiff and Defendant No.2 in BBMP OS.NO: 5671/2014 32 in respect of their respective portions of the suit schedule property. Plaintiff's portion has been numbered as 144/1B2 measuring 50'x 12.5' and 2 nd Defendant's portion as 144/1B1 measuring 50' x 12.5', as per Special Notice dated 11.12.2000 at Ex.D.10 (4 Nos.) and thereby, Will has been acted upon by Plaintiff, Defendant No.2 and Smt.Andalamma. Moreover, recitals in 'Hissa Patra' at Ex.D.27 makes it clear that, Plaintiff and Defendant No.2 acquired suit schedule property by Will executed by their father, Sri.Govinda Reddy and katha was entered in their names in respect of their respective portions on the basis of Will. Relevant portion of Ex.D27 reads as follows :
"ನಮಮ ತತದದಯವರರದ ಲದಲಟಟ ಗದಗಲವತದರದಡಡಯವರರ ಎಸಟ.ಆರಟ.ನತನ 1889 ತರರಲಖರ 20-7-1959 ರಲಲ ಬಸವನಗರಡ ಸಬಟರಜಸರಸಸರಟ ಆಫಲಸನಲಲ ಸರಬಬಮಮಣಣರದಡಡಯವರತದ ಕಬಯಕದಕ ಪಡದದ ಆಸಸಯರಗರರತಸದದ. ಮತರಸ ಸದರ ಆಸಸಯನರನ ನಮಮ ತತದದಯವರರದ ಲದಲಟಟ ಗದಗಲವತದರದಡಡಯವರರ ಎಸಟ.ಆರಟ.ನತನ 82 ತರರಲಖರನ 22-8-1988 ರಲಲ ಮರಣ ಶರಸನ ಬರದದರಕದಗಟರಸ ರಜಸಸಸರಟ ಮರಡಸಕದಗಟಸರರತರಸರದ. ಮರಣ ಶರಸನದ ಪಬಕರರ ನಮಮಗಳಗದ ಬತದ ಆಸಸಯನರನ ಪದಮನರಭನಗರ ವಲಯದ ಎ.ಆರಟ.ಒ.ಅಧಕರರಯವರತದ ಕದ.ಟ.ಆರಟ.ನತನ 63 ತರರಲಖರ 11-12-2000 ರಲಲ ನಮಮಗಳ ಹದಸರಗದ ಖರತರ OS.NO: 5671/2014 33 ಆಗ ನಮಮಗಳ ಸರಸಧಲನರನರಭವದಲಲರರ ಈ ಆಸಸಯನರನ ............."
36) Further, Defendant No.1, in his written statement, has emphatically stated that suit schedule property is the self acquired property of Plaintiff. Relevant portion of written statement reads thus :
"7.............Apart from this the Plaintif was allotted the property under the Will and it is self acquired property of the Plaintif and she has disposed of the said property in accordance with her will and wish............"
37) In the light of the pleadings of the parties and documentary evidence, it is clear that, suit schedule property is self acquired property of Plaintiff and Defendant No.2. Neither Defendant No.1 had any right, title and interest in suit schedule property nor suit schedule property had assumed the character of family property at the time of alleged execution of Partition Deed at Ex.D.29.
OS.NO: 5671/2014 34
38) In this background, it is necessary to consider the documents at Exs.D.27 to D.29 [Ex.P.5 to Ex.P.7]. Ex.D.27 is 'Hissa Patra' dated 02.02.2001 which is registered before Sub-Registrar, Basavanagudi, Bengaluru, as Document No.4475/2000-2001. It reveals that, Plaintiff and Defendant No.2 were shown to have partitioned the suit schedule property and accordingly, 1 st schedule was allotted to Defendant No.2 and 2 nd schedule allotted to Plaintiff. In Ex.D.27, even though suit schedule property was shown to be partitioned, a right was created in favour of Defendant No.1 that, Defendant No.1 shall be the absolute owner of suit schedule property and a clog was inserted to the effect that suit schedule property shall not be alienated in any manner. Thereafter, on 18.10.2002 Cancellation Deed at Ex.D.28 shown to be entered into between Plaintiff and Defendant No.2, whereunder, 'Hissa Patra' at Ex.D.27 got entered into between Plaintiff and Defendant No.2 was OS.NO: 5671/2014 35 cancelled. It is glaring from Cancellation Deed that, Cancellation Deed got registered, as Defendant No.1 has not accepted 'Hissa Patra' at Ex.D.27. Relevant portion of Cancellation Deed at Ex.D.28 reads thus :
"....... ಸದರ ಹಸರಸ ಪತಬಕದಕ ಅತಬರಜಮಮನವರ ಸರಕರ ಮಗನರದ ಬರಲಕಕಷಷ ರದಡಡಯನರನ ಸಮಮತಸಲಲದ ಕರರಣ ನಗಣನತದ ಕತಡರಬತದರರವವದರತದ ನರವವಗಳಬಬರಗ ಪರಸಸರ ಸಮರಲದಗಲಚನದ ಮರಡ ಆಗರರವ ನಗಣನತದಯನರನ ಸರಪಡಸರವ ಉದದಶಣದತದ ಹಸರಸಪತಬವನರನ ರದರದ ಮರಡಲರ ತಲಮರರನಸ ಈ ರದದಯರತ ಪತಬವನರನ ಮರಡಕದಗತಡರರತದಸಲವದ ಸಹ".
39) On the day of registration of Cancellation Deed dated 18.10.2002, Partition Deed dated 18.10.2002 at Ex.D.29 has been shown to be entered into between Plaintiff and Defendants No.1 and 2 in respect of suit schedule property and got registered as Document No.3368/02-03 in the office of Sub-Registrar, Basavanagudi, Bengaluru, whereunder, entire suit schedule property has been shown to be allotted to Defendant No.1 and Plaintiff and Defendant No.2 are shown to have received a sum of Rs.10,000/- each, in respect of their share. Recitals in Ex.D.29 reads as follows :
OS.NO: 5671/2014 36 " ನರವವಗಳದಲಲರಗ ಹತದಗ ಅವಭಕಸ ಕರಟರತಬ ಸದಸಣರರಗಳರಗದರದ ಈ ವಭರಗಪತಬಕದಕ ಒಳಪಡರವ ಸಸತರಸಗಳನರನ ನರವವಗಳದಲಲರಗ ಜತಟಯರಗ ತಹಲಟ ವರದವಗಗ ಅನರಭವಸಕದಗತಡರ ಬತದರರತದಸಲವದ. ಇದದಲ ರಲತ ಕರಟರತಬದಲಲ ಮರತದರವರದಯಲರ ಅನರಕಗಲತದ ಕಡಮ ಇರರವ ಪಬಯರಕಸ ನರವವಗಳದಲಲರಗ ಸಸತತತಬತವರಗ ಜಲವನವನರನ ನಡದಸಬದಲಕದತದರ ಉದದಶಣಪಟರಸ ನರವವಗಳದಲಲರಗ ಒಮಮಸಸನತದ ತಲಮರರನಕದಕ ಬತದರ ಪತಬಕದಕ ಸರಕಕ ಹರಕರರವವರ ಸಮಕಕಮ ನಮಮ ನಮಮಗಳ ಅನರಕಗಲತದಗದ ತಕಕತತದ ಒಟರಸ ಆಸಸಯನರನ ಮಗರರ ಭರಗಗಳರಗ ವತಗಡಸ 'ಎ' ಷದಡಗಣಲಟಸಸತಸನರನ ಒತದನದಲ ಭರಗಸಸಳರದ 1.ರತಗಮಮನರದ ನರನರ ನನನ ಭರಗಕದಕ ತದಗದದರಕದಗಳಳಲರ ಒಪಸಕದಗತಡರರತದಸಲನದ. 2 ನದಲ ಭರಗಸಸಳರದ ಅತಬರಜಮಮನರದ ನರನರ 'ಬ' ಷದಡಗಣಲಟ ಸಸತಸನರನ ನನನ ಭರಗಕದಕ ತದಗದದರಕದಗಳಳಲರ ಒಪಸಕದಗತಡರರತದಸಲನದ. 3 ನದಲ ಭರಗಸಸನರದ ಕದ.ಬರಲಕಕಷಷರದಡಡಯರದ ನರನರ ನನನ ಭರಗಕದಕ 'ಸ' ಷದಡಗಣಲಟ ಭರಗದ ಸಸತಸನರನ ಪಡದದರಕದಗತಡರರತದಸಲನದ. ಈ ವಭರಗಪತಬಕದಕ ಒಳಪಡರವ ಸ ಷದಡಗಣಲಟಸಸತರಸ ಲದಲಟ ದದಗಡಡ ಗದಗಲವತದ ರದಡಡಯವರತದ ಒತದನದಲ ರತಗಮಮ ಮತರಸ ಎರಡನದಲ ಅತಬರಜಮಮ ಆದ ನಮಮಗಳಗದ ದನರತಕ 30-6-1988 ರಲಲ ಬರದದರರವ ಬಸವನಗರಡ ಉಪನದಗಲತದಣರಧಕರರಯವರ ಕಛದಲರಯಲಲ 3 ನದಲ ಪಸಸಕದ 61 ನದಲ ಸತಪವಟ 87-91 ನದಲ ಪವಟಗಳಲಲ 82 ನದಲ ನತಬರರಗ ದನರತಕ 22-8-1988 ರಲಲ ರಜಸರಸಸಗರರವ ವಲಟಪಬಕರರ ಬತದರರವ ಸಸತರಸಗಳರಗರರತಸದದ".
(underlined by me)
40) It has been established that, suit schedule property is the self acquired property of Plaintiff and Defendant No.2, which was acquired by them under Will executed by their father. When fact being thus, mere describing Plaintiff and Defendants as members of Hindu Undivided Family and suit schedule property is in joint enjoyment of OS.NO: 5671/2014 37 Plaintiff and Defendants in Ex.D.29 do not confer any status of joint family and right of joint enjoyment of suit schedule property on Defendant No.1. It is an admitted fact that, Defendant No.2 had no right in suit schedule property at the time of entering into alleged Partition Deed at Ex.D.29.
More important is that, at the time of entering into alleged Partition Deed, separate katha was effected in the names of Plaintiff and Defendant No.2 as per Ex.D.10(4) in respect of their respective shares in suit schedule property as per Will. Hence, it is abundantly clear that, recitals in Partition Deed as to members of Hindu Undivided Family and suit schedule property is in joint enjoyment of Plaintiff and Defendants have been doctored only for the purpose of creating right in suit schedule property in favour of Defendant No.1.
41) In Vasanthi Ben Prhaladji Nayak and others Vs. Somnath Muljibhai Nayak and OS.NO: 5671/2014 38 others [AIR 2004 SC 1893], the Hon'ble Supreme Court was pleased to hold that:
"6. .........Partition is really a process by which a joint enjoyment of the property is transformed into enjoyment severally. In the case of partition, each co-sharer has an antecedent title and therefore, there is no conferment of a new title. In the circumstances, the Appellants cannot be said to have become owner of the property only when the partition deed was executed".
42) In Aralappa and etc., Vs. Jaganath and Others, [AIR 2007 KAR 91], the Hon'ble High Court of Karnataka was pleased to hold that "
"21. ...... Partition does not give title or create title, it does not amount to transfer. By partition nobody acquires title to any property for the first time. Consequently, the partition deed only recognizes an existing right, which each party to the deed has any joint property and no right springs from the Deed of Partition".
43) As observed above, suit schedule property is the self acquisition of Plaintiff and Defendant No.2, which was bequeathed to them by registered Will dated 30.06.1988 by their father, Sri.Govinda Reddy and after his demise, katha of the suit schedule property was got entered in BBMP OS.NO: 5671/2014 39 separately in their names in respect of their respective portions as mentioned in the Will. It is not the case of Defendant No.1 that, there were other joint family properties acquired by Plaintiff and Defendants No.1 and 2 and that Plaintiff and Defendants No.1 and 2 have blended suit schedule property with the joint family properties. No such pleading has been put-forth by Defendant No.1 and no documentary evidence has been placed that there exists other joint family properties, in which, suit schedule property has been blended with. In these circumstances, in the absence of showing his right in suit schedule property at the time of alleged partition, certainly, Defendant No.1 cannot acquire any right or title in suit schedule property for the first time by partition, which recognizes an existing right only. 1St Defendant is claiming right, title and interest under Partition Deed dated 18.10.2002 at Ex.D.29 in absence of existing right. No such right springs from Deed of OS.NO: 5671/2014 40 Partition itself in absence of existing right. Under such circumstances, it cannot be said that, Defendant No.1 has derived any right, title or interest in suit schedule property from Ex.D.29.
44) Plaintiff contends that, she is deaf and dumb; she is innocent; she has no worldly knowledge; she was taken care of by her husband; by playing fraud upon her, alleged Partition Deed got registered by Defendant No.1 by showing the allotment of entire suit schedule property in his name.
45) A bare perusal of Ex.D.29, Partition Deed makes it clear that, Plaintiff and Defendants No.1 and 2 are shown to have entered into partition of suit schedule property and Defendant No.1 is shown to be allotted suit schedule property and Plaintiff and Defendant No.2 are shown to have been given cash of Rs.10,000/- each. Said OS.NO: 5671/2014 41 document got registered in the office of Sub- Registrar, Basavanagudi, Bengaluru. This Court by its order dated 30.10.2014 on I.A.No.1 after holding due enquiry and after relying on Ex.P.2 and Ex.P.3 and oral testimony of P.W.1 and P.W.2, has specifically held that, Plaintiff is deaf and dumb. Said order was affirmed by the Hon'ble High Court of Karnataka. She was under the care of her husband and later, she has been taken care of by her foster son, Sri.K.Shankar Reddy, who has been appointed as her guardian in this suit. In Ex.P.3, Doctor has specifically opined that, Plaintiff's deafness is congenital disability, which clearly indicates that, Plaintiff has such disability by birth. Moreover, oral evidence of Defendant No.2 establishes the fact that, Plaintiff is deaf and dumb by birth and she has no worldly knowledge. Relevant portion of cross-examination of DW.2 reads as follows :
"ಅತಬರಜಮಮ ಹರಟಸದರಗನತದ ಮಗಗ ಮತರಸ ಕವವಡ ಇರರತರಸಳದ. ವರದಗದ ಓದಲರ ಮತರಸ ಬರದಯಲರ OS.NO: 5671/2014 42 ಬರರವವದಲಲ. ವರದಗದ ಯರವವದದಲ ವಣವಹರರದ ಬಗದಗ ಗದಗತರಸಗರವವದಲಲ. ......................... ಅತಬರಜಮಮರವರರ ಹದಬಬಟಸನ ಮರದದಬ ಯನರನ ಸಹಯರಗ ಒತರಸತರಸರದ. ಅತಬರಜಮಮರವರರ ನರನರ ಮತರಸ 1 ನದಲ ಪಬತವರದ ಕದಲಳದರದ ಮರತಬ ಹದಬಬಟಸನರನ ಹರಕರತರಸರದ. ......"
46) Hence, it is clear that, Plaintiff is deaf and dumb by birth and she used to put her thumb impression only if she was asked to do so by Defendant No.1 and 2. However, Ex.D.29, Partition Deed is shown to have been executed by Plaintiff without any legal representation. Plaintiff has specifically contended that, Partition Deed was registered by playing fraud upon Plaintiff. In the light of the contention of Plaintiff, it is relevant to take note of cross-examination of D.W.2, who is the direct sister of Plaintiff and her portion of suit schedule property has also been shown to have been allotted to Defendant No.1 in Ex.D.29. DW.2 deposes as follows :
"....... ದರವರ ಆಸಸ ಇರರವ ಸಸಳದತದ ವರದ ವರಸವರರವ ಸದಳ ಮಹದದಲವ ಮತಗಳಮಟ ಚತಗಸರಟ ಜಲದಲ ಅಜಮರಸರ 300 ಕ.ಮಲ. ಅತತರದಲಲದದ. ಅತಬರಜಮಮನವರರ ಕವವಡ ಮತರಸ ಮಗಗಯರಗರರವವದರತದ ಅವರರ ಒಬಬರದಲ ಹದಗಲಗ ಬರಲರ ಸರಧಣವರಗರತಸರಲಲಲವರಗತರಸ. 02-01-2001 ರತದರ ಅತಬರಜಮಮರವರನರನ ಅವರ ಊರನತದ 1 ನದಲ OS.NO: 5671/2014 43 ಪಬತವರದ ಕರದದರಕದಗತಡರ ಬತದದದರರ. ನನನನರನ ಕಗಡ 1 ನದಲ ಪಬತವರದಯಲ ಊರನತದ ಕರದದರಕದಗತಡರ ಬತದದದರರ. 1 ನದಲ ಪಬತವರದ ನನನನರನ ಹರಗಗ ಅತಬರಜಮಮನವರನರನ ದರವರ ಸಸತಸನಲಲ ಮನದ ಕಟಸಲರ ಸರಲ ತದಗದದರಕದಗಳಳಬದಲಕದನರನವ ಕರರಣದತದ ನಮಮನರನ ಕರದದರಕದಗತಡರ ಬತದದರದ ಇರರತಸದದ. ಈಗ ದರವರ ಸಸತಸನಲಲರರವ ಕಟಸಡವನರನ ನರನರ ಹರಗಗ ಅತಬರಜಮಮನವರರ ಜತಟಯರಗ ಕಟಸರರತದಸಲವದ. ಸದರ ಕಟಸಡ ಕಟಸಲರ ಅತಬರಜಮಮರವರರ 5 ಲಕಕ ನಲಡದರದ ಇರರತಸದದ. ಸರಕಕ ಮರತದರವರದದರ ಅತಬರಜಮಮರವರರ ಸದರ ಹಣವನರನ ನನನ ಹತಸರ ಕದಗಟಸದದರರ ಅದನರನ ನರನರ ಮನದ ಕಟಸಲರ ಖಚರರ ಮರಡದದದಲನದ ಎತದರ ಹದಲಳರತರಸರದ. 1 ನದಲ ಪಬತವರದ ಗರರದ ಕದಲಸಮರಡರವವದರತದ ಆತನ ಮಗಲಕ ಸದರ ಮನದಯನರನ ಕಟಸಸದದದಲವದ. 1 ನದಲ ಪಬತವರದ ನನನ ಹರಗಗ ಅತಬರಜಮಮನವರ ಪರವರಗ ಸದರ ಮನದಗದ ಸತಬತಧಸ ಕತದರಯ ಪರವತ, ವದರಣತಟ ಬಲಟ ಪರವತ, ನಲರನ ಕರ ಹರಗಗ ಬರಡಗದ ವಸಗಲಯನರನ ಮರಡಕದಗತಡರ ಬರರತಸದರದರದ. 1 ನದಲ ಪಬತವರದ ನನನ ಸಸತತ ಮಗನರಗರರವ ಕರರಣ ಸದರ ಕಟಸಡದ ಒತದರ ಭರಗದಲಲ ವರಸಸರತಸದದರರ. ಸದರ ಕಟಸಡ ಕಟಸದರಗನತದ ಅತದರದ 2001-2002 ರತದ ಇಲಲಯ ತನಕ ಸದರ ಕಟಸಡದ ಬರಡಗದ 1 ನದಲ ಪಬತವರದಯಲ ಇಟರಸಕದಗತಡರರತರಸನದ. ನನಗದ ಓದಲರ ಮತರಸ ಬರದಯಲರ ಬರರವವದಲಲ. ಈಗ ನನಗದ ತದಗಲರಸದ ಕರಗದ ಪತಬ (ನ.ಡ.27) ಯರವ ದರಖಲದ ಪತಬ ಎತದರ ಹದಲಳಲರ ಬರರವವದಲಲ. ಅದರಲಲ ನರನರ ನನನ ಸಹಯನರನ ಗರರರತಸರತದಸಲನದ. ನನಗದ ತದಗಲರಸದ ಕರಗದ ಪತಬವನರನ ನರನರಗಲಲ 1 ನದಲ ಪಬತವರದಯರಗಲಲ ಅತಬರಜಮಮರವರಗದ ತಳಸರರವವದಲಲ. 1 ನದಲ ಪಬತವರದ ನನನನರನ ಹರಗಗ ಅತಬರಜಮಮನವರನರನ ತರನರ ಮನದಕಟರಸವವದಕದಗಲಸಕರ ಸರಲ ತದಗದದರಕಗಳಳಬದಲಕದತದರ ನಮಮನರನ ನತಬಸ ಊರನತದ ಕರದದರಕದಗತಡರ ಬತದರ ಸದರ ಕರಗದ ಪತಬವನರನ ಸಕಷಸಸಕದಗತಡದರದನದತದರ ಸರಕಕ ಹದಲಳರತರಸರದ. ನರನರ ಹರಗಗ 1 ನದಲ ಪಬತವರದ ಸದಲರಕದಗತಡರ ಅತಬರಜಮಮನವರಗದ ಮರಲಸ ಮರಡದದದಲವದ ಎತದರದ ಸರಕಕ ನರನರ ಮಲಸ ಮರಡರರವವದಲಲ, 1 ನದಲ ಪಬತವರದಯಲ ಮಲಸ ಮರಡರರತರಸರದ ಎತದರ ಹದಲಳರತರಸರದ. 1 ನದಲ ಪಬತವರದ ನನನ ಸಸತತ ಮಗನದರದ ಆತನನರನ ಅತಬರಜಮಮನವರರ ತಮಮ ಸರಕರ ಮಗನರಗ ಸರಕರರವವದಲಲ. ದನರತಕನ 02-01-2001 ರಲಲ ಅತಬರಜಮಮ ನವರ ಗತಡ ಸತಜಲವರದಡಡ ಹರಗಗ ಅವರ ಸರಕರ ಮಗ ಶತಕರದಡಡಯವರರ ಊರನಲಲಯಲ ಇದದರರ. ಅವರರ ಬದತಗಳಗರಗದ ಬತದರ ನನಗದ ತದಗಲರಸದ ಕರಗದ ಪತಬಕದಕ ಸರಕಕ ಹರಕದರದ ಇರರವವದಲಲ. ಅಲಲದದ ಶರಣತಬಶವರದಡಡ, ಕದ.ಯಶದಗಲಧ, ವದತಕಟದಲಶಟ ರವರರ ನನನ ಮಗ, ಮಗಳರ ಹರಗಗ ಅಳಯರರತರಸರದ. ಅವರರ ಸದರ ದರಖಲದ ಪತಬಕದಕ ಸರಕಕ OS.NO: 5671/2014 44 ಹರಕರರವವದಲಲ. ನರನರ ಹರಗಗ 1 ನದಲ ಪಬತವರದ ಸದಲರಕದಗತಡರ ಸದರ ಸರಕಕದರರರ ಸಹಯನರನ ಸಕಷಸಸದದದಲವದ ಎತದರದ ಸರಕಕ ನರನರ ಮಲಸ ಮರಡರರವವದಲಲ ನನನ ಮಗ ಮಲಸ ಮರಡದರದನದ ಎತದರ ಹದಲಳರತರಸರದ. ದರವರ ಆಸಸ ನನನ ತತದದಯತದ ನನಗದ ಹರಗಗ ನನನ ಸಹದಗಲದರಯರಗದ ವಲಟ ಮರಖರತತರ ಬತದರರವ ಆಸಸಯರಗರರವವದರತದ 1 ನದಲ ಪಬತವರದಗದ ಯರವವದದಲ ಹಕರಕ ಇಲಲ ಎತದರದ ಸರ. ಯರವ ಬರಣತಕನಲಲ 1 ನದಲ ಪಬತವರದ ಸರಲ ತದಗದದರಕದಗತಡದರದನದ ಎತದರ ನನಗದ 1 ನದಲ ಪಬತವರದ ಹದಲಳರರವವದಲಲ. ಅತಬರಜಮಮರವರರ ನನನ ಹರಗಗ ನನನ ಮಗನ ಮಲಲನ ನತಬಕದಯತದ ನನಗದ ತದಗಲರಸದ ದರಖಲದ ಪತಬಗಳಲಲ ಹದಬಬಟರಸ ಹರಕರರತರಸರದ. ನರನರ ಹರಗಗ 1 ನದಲ ಪಬತವರದ ನ.ಡ.29 ರಲಲ 1 ನದಲ ಪಬತವರದ ಅತಬರಜಮಮರವರ ಮಗ ಎತದರ ಸರಳರಳಗ ಬರದಸದದದಲವದ ಎತದರದ ಸರಕಕ ನರನರ ಹರಗದ ಹದಲಳ ಬರದಸರರವವದಲಲ, 1 ನದಲ ಪಬತವರದಯಲ ಹದಲಳ ಬರದಸರರತರಸನದ ಎದರ ಹದಲಳರತರಸರದ. ನ.ಡ.29 ನದಲ ದರಖಲದಗದ 1 ನದಲ ಪಬತವರದ ಅತಬರಜಮಮರವರನರನ ಕರದದರಕದಗತಡರ ಬತದರ ಹದಬಬಟಸನರನ ಹರಕಸಕದಗತಡದರದರದ ಎತದರದ ಸರ. ನ.ಡ.29 ನದಲದಬ ದರಖಲದಯಲಲ ಅತಬರಜಮಮರವರಗದ ರಗ.10,000/- ಕದಗಟಸದರದರದ ಎತದರ ಬರದಸರರವವದರ ಸರಳರಳ ಎತದರದ ಸರಕಕ 1 ನದಲ ಪಬತವರದ ರಗ.10,000/- ಕದಗಟಸರರವವದಲಲ ಎತದರ ಹದಲಳರತರಸರದ. 1 ನದಲ ಪಬತವರದ ನನಗಗ ಕಗಡ ಯರವವದದಲ ಹಣವನರನ ಕದಗಟಸರರವವದಲಲ. ನ.ಡ.29 ಕದಕ ನರವವ ಸಹ ಹರಕರವರಗ 1 ನದಲ ಪಬತವರದ ಹತಸರ ಯರವ ಉದದದಲಶಕದಕ ಕರಗದ ಪತಬಕದಕ ಸಹ ಪಡದಯರತಸ ಎತದರ ಕದಲಳದರದ ಸರಲ ತದಗದದರಕದಗಳಳಲರ ಸಹ ಬದಲಕರಗದದ ಎತದರ 1 ನದಲ ಪಬತವರದ ತಳಸದರದ ಇರರತಸದದ. ನ.ಡ.29 ದರಖಲದ ಪತಬವನರನ ನರನರ ಹರಗಗ 1 ನದಲ ಪಬತವರದ ಸದಲರಕದಗತಡರ ಸಕಷಸಸದರದರದ ಎತದರದ ನರನರ ಸಕಷಸಸರರವವದಲಲ, 1 ನದಲ ಪಬತವರದ ನ.ಡ.29 ದರಖಲದಯನರನ ಸಕಷಸಸದರದರದ ಎತದರ ಹದಲಳರತರಸರದ. ನ.ಡ.27 ರತದ ನ.ಡ.29 ದರಖಲದಯನರನ ಸಕಷಸಸರರವ ವಚರರ ಅತಬರಜಮಮರವರರ ನದಗಲಟಸರ ಕದಗಟಸ ನತತರ ನನಗದ ತಳದರ ಬತದರರತಸದದ. ........ ."
47) From the evidence of DW.2, fraud played by Defendant No.1 has been unfolded. Defendant No.2 is the mother of Defendant No.1. If she really has executed Partition Deed along with Plaintiff, OS.NO: 5671/2014 45 then, there is no necessity for Defendant No.2 to depose against her own son. She is the only person who could explain the true facts about the alleged transaction. Accordingly, she has explained the real facts, which Defendant No.1 has done to her and Plaintiff. From her evidence, it is crystal clear that, Defendant No.1 himself took Plaintiff and Defendant No.2 from their place of residence to Bengaluru, on the pretext that their presence is necessary to borrow loan for construction of house in suit schedule property and made them to believe the said fact and got created Partition Deed.
48) At this juncture, it is relevant to take note of certain provisions of the Indian Contract Act. Section 2(g) of the Indian Contract Act, 1872 states that, an agreement not enforceable by law is said to be void. Section 11 of the Act states that, every person is competent to contract who is of the age of majority according to the law, to which, he is OS.NO: 5671/2014 46 subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject. Section 12 defines sound mind for the purpose of contract, which reads as follows :
"12. A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.
49) Section 13 defines 'consent', which means, two or more persons are said to consent when they agree upon the same thing in the same sense.
Section 14 states that, consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake. Section 17 deals with 'Fraud'. It reads thus :
" 17. 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :-
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
OS.NO: 5671/2014 47 (2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specifically declares to be fraudulent." Section 19 states that, when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
50) Hon'ble Supreme Court in Meghmala and others Vs. G.Narasimha Reddy and Others, [(2010)8 SCC 383] was pleased to hold that "fraud and justice never dwell together". Para 20 and 23 read thus :
"20. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." (Vide S.P.Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) OS.NO: 5671/2014 48 by L.Rs. and others,). In Lazarus Estate Ltd. V. Besalay 1956 All.E.R. 349, the Court observed without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
23. In United India Insurance Co.
Ltd. Vs. Rajendra Singh and Others, this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries."
51) P.W.2, Dr.M.Mahesh Babu, Professor in ENT at Bengaluru Medical College, in his examination-in- chief, has specifically deposed that, Plaintiff has got permanent disability of speech and hearing and that there is no chance of improvement even if she undergoes further treatment. Further, Exs.P.2 and P.3 make it clear that, Plaintiff's speech and hearing impairment are congenital disability. Defendant No.2, sister of Plaintiff, in her evidence, has specifically deposed that, Plaintiff is deaf and dumb by birth. In the light of medical evidence and oral testimony of the parties, it is clear that, Plaintiff is not capable of understanding the fact and of OS.NO: 5671/2014 49 forming rational judgment as to its effect. Having considered this aspect, this Court has appointed a guardian ad litem.
52) Defendant No.2 has specifically deposed that, Plaintiff used to put her thumb impression as her signature whenever Defendants No.1 and 2 asked for her signatures. It is deposed that, on 02.01.2001, Plaintiff and Defendant No.2 were brought by Defendant No.1 from their place of residence at Chittor of Andhra Pradesh, saying that loan should be obtained for construction of house in suit schedule property. DW.2 specifically deposes that, documents were not notified to Plaintiff either by her or by Defendant No.1. It is emphatically deposed that, Defendant No.1 made Plaintiff and Defendant No.2 to believe that they were called for by Defendant No.1 for the purpose of taking loan to construct house and documents were got created by Defendant No.1 by playing fraud upon them.
OS.NO: 5671/2014 50 Said oral testimony of DW.2 abundantly makes it clear that, Defendant No.1 has played fraud upon Plaintiff and Defendant No.2 and suit schedule property has been shown to have been allotted to his share by alleged Partition Deed. Hence, it can be fairly said that, the act of Defendant No.1 squarely comes under Section 17 of the Contract Act. Under such circumstances, alleged Partition Deed is also voidable at the option of Plaintiff and Defendant No.2, whose consent was so caused by fraud. More important is that, Plaintiff is not capable of understanding the nature of transaction and of forming a rational judgment as to its effect. Hence, she is not competent to contract, unless she is represented by legal guardian. Under such circumstances, it has to be said that alleged Partition Deed with Plaintiff is void ab initio.
53) It is, therefore, clear that, Defendant No.1, having taken advantage of Plaintiff's innocence and OS.NO: 5671/2014 51 disability, misused the confidence and faith reposed in him and got created Partition Deed and allotted suit schedule property in his name. Be that as it may. At any stretch of imagination, it cannot be presumed that, Plaintiff could have executed alleged Partition Deed without any legal representation. Had she any intention to transfer her property, she could not do so, without proper representation. Having perused Ex.D.29, it is clear that, Plaintiff herself is shown to have executed Partition Deed. No legal guardian has been represented in Ex.D.29.
54) Section 2(h) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental, Retardation and Multiple Disabilities Act, 1999 [In short 'National Trust Act'] deals with 'Multiple disabilities'. It reads as follows :
" 2(h) 'Multiple disabilities' means, a combination of two or more disabilities as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal OS.NO: 5671/2014 52 Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)."
55) Section 2(i) of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, defines 'Disability'. It reads as follows :
" 2(i) "Disability" means.-
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness;"
56) Sections 14 and 17 of National Trust Act, deals with appointment of guardian and removal of guardian. Section 14 reads thus :
"14. Appointment for guardianship.-
(1) A parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability.
(2) Any registered organization may make an application in the prescribed form to the local level committee for appointment of a guardian for a person with disability:
Provided that no such application shall be entertained by the local level committee, unless the consent of the OS.NO: 5671/2014 53 guardian of the disabled person is also obtained.
(3) While considering the application for appointment of a guardian, the local level committee shall consider.-
(a) whether the person with disability needs a guardian;
(b) the purposes for which the guardianship is required for person with disability.
(4) The local level committee shall receive, process and decide applications received under sub-sections (1) and (2), in such manner as may be determined by regulations:
Provided that while making recommendation for the appointment of a guardian, the local level committee shall provide for the obligation which are to be fulfilled by the guardian.
(5) The local level committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations."
From the above provisions of law, it is clear that, Plaintiff's disability squarely comes under Section 2(h) of National Trust Act, 1999 and guardian can be appointed under Section 14 of the said Act. Without there being a legal OS.NO: 5671/2014 54 representation, the property of a person with disability cannot be dealt by person with disability.
57) In this case, it has been established that, even though 1st Defendant had no existing right in suit schedule property got himself arrayed as party to the alleged Partition Deed and suit schedule property has been shown to have been alloted in his name, which is not permissible in law. It has been further established that, the alleged Partition Deed got created by him on the pretext that, signatures of Plaintiff and Defendant No.2 are necessary for obtaining loan for construction of house in suit schedule property and thereby, played fraud by misusing confidence reposed in him by Plaintiff and Defendant No.2. It has also been established that, Plaintiff is incompetent to contract due to her disability, hence, the question of execution of the alleged Partition Deed by her does not arise and same is void ab initio;
OS.NO: 5671/2014 55 accordingly, Issue No.2 is answered in the affirmative and Issue No. 6 is answered in the negative.
58) Additional Issue No.3 : Plaintiff's prayers are for partition and separate possession of her half share in suit schedule property and declaring the Partition Deed as null and void and same is not binding on her. Prayer No.(a) and (b) read thus :
"(a) for partition and separate possession of Plaintif's legitimate 1/2nd share in the entire suit schedule property and separate possession of the same in accordance with law; and grant consequential reliefs as follows :
(b) That the so called regd. Partition Deed, dt.18/10/2002, Regd. as Doc.No.3368/2002-03 is not binding on the Plaintif and the same is null and void, unenforceable against the Plaintif."
59) Having perused the reliefs sought for by Plaintiff, it is clear that, Plaintiff has not sought for any declaration as to cancellation of Partition Deed allegedly entered into between Plaintiff and Defendants No.1 and 2. Defendant No.1 contends OS.NO: 5671/2014 56 that, since no declaration as to cancellation of Partition Deed is sought for by Plaintiff, mere suit for partition is not maintainable. Of course, Plaintiff has not specifically sought for declaration as to cancellation of Partition Deed. Instead, Plaintiff sought for declaration that Partition Deed dated 18.10.2002 is not binding on her and same be declared as null and void. Section 34 of the Specific Relief Act deals with discretion of the Court as to declaration of status or right. It states that, when a suit is filed for declaration of status or right by Plaintiff, he need not in such suit ask for any further relief. Proviso to Section 34 says that, where Plaintiff is able to seek further relief than a mere declaration of title, Court shall not make any such declaration.
60) As observed above, Partition Deed got entered into between Plaintiff and Defendants No.1 and 2 is void ab initio, as Plaintiff is not competent OS.NO: 5671/2014 57 to contract due to her disability. Under such circumstances, it cannot be said that, Plaintiff ought to have sought for declaration as to cancellation of Partition Deed as contended by Defendant No.1. In Athiappa Gounder and Anr. Vs. A.Mohan [1995 (1) Civil Law judgment 239] it is held that, "Section 34 of the Specific Relief Act refers to voidable transaction and valid transactions, which become void on account of supervening circumstances. It has no application in respect of transactions which are void ab initio".
61) In Smt. Kalawati Vs. Bisheshwar [AIR 1968 SC 261], it is held that, "a void transaction is one which is non existence from its very inception".
62) In State of Punjab and others Vs. Gurudev Singh [AIR 1991 SC 2219], the Hon'ble Supreme Court was pleased to hold that, "If an act OS.NO: 5671/2014 58 is void or ultravires, it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of afairs and does not 'quash' so as to produce a new state of afairs".
63) In State of Maharashtra Vs. Pravin Jethalal Kamdar (dead) by Lrs [AIR 2000 Supreme Court 1099], the Hon'ble Supreme Court was pleased to hold that "There is no need to seek declaration about invalidity of the document, when possession is taken under void document".
64) Plaintiff has sought for separation of her half share in suit schedule property with a consequential relief of declaration as to Partition Deed as null and void. In the absence of existing right in entering into partition by Defendant No.1 and on account of congenital disability of Plaintiff OS.NO: 5671/2014 59 which bars Defendants in entering into partition with Plaintiff, further relief as to cancellation of alleged Partition Deed is not at all warrantable in this suit, as it has been established that the alleged Partition Deed is void ab initio; accordingly, I answer Additional Issue No.3 in the negative.
65) Additional Issue No.1: 1st Defendant contends that, Plaintiff is having knowledge of execution of Partition Deed early in the year 2002, now, she cannot re-open for partition or claim partition after lapse of several years, hence, suit is barred by limitation. Contrary, Plaintiff contends that, she came to know of the alleged Partition Deed in the month of April, 2014, when Defendant No.1 and 2 started collecting rental income from Plaintiff's portion after completing the construction and used it for their personal advantage and denied to take care of Plaintiff.
OS.NO: 5671/2014 60
66) Legal notice dated 05.05.2014 at Ex.P.11 was got issued by Plaintiff to Defendants No.1 and 2, wherein, Plaintiff has specifically mentioned that, she came to know of the alleged Partition Deed in the month of April, 2014. Para-6 and 7 of Ex.P.11 read thus :
" 6. You have got the documents created under the guise of availing loan from the Bank for construction of building and you have taken my client to the Sub-Registrar office and got her L.T.M to the Hissa Patra dt.02.01.2001 and Cancellation Hissa Patra, dt.18/10/2001 and Partition Deed dt. 18/10/2002 since she is having no worldly knowledge besides being a dumb and deaf women. The said alleged acts, deeds and things done by both of you came to the notice of my client only in the month of April 2014 and thus the said documents which are detrimental to her interest which are not acted upon by my client ....."
" 7. At no stretch of time the property was partitioned and the said document came to be executed behind the back of my client in collusion with both of you and started collecting rental income from the portions of Smt.Ambujamma after completing the construction and used it for personal advantage of both of you and never cared for welfare and interest of my client which fact was questioned by her poster son Sri.K.Shankar Reddy and thereby you have deprived the lawful enjoyment of rental income without making my client to get fruits of the rental income. ....."
OS.NO: 5671/2014 61
67) Defendant No.2, mother of Defendant No.1, in her evidence has specifically deposed that, 'Hissa Patra' and 'Cancellation Deed' were created at the convenience of 1st Defendant without explaining and notifying the contents thereon. It is deposed that, the alleged Partition Deed was executed with a false assurance and representation by Defendant No.1 that said document is required to put up construction on schedule property by raising loan. Relevant portion of examination-in- chief of D.W.2 reads as follows :
"6. .......... It is emphatically stated that the Regd. Hissa Patra and Cancellation Deed of Hissa Patra are done at the request and convenience of the 1 st Defendant without explaining the contents or notifying the consequences of the same......."
"7. .......... The said partition deed was executed with a false assurance and representation by Defendant No.1 as those documents are required to put construction on the schedule property by raising Bank Loan."
68) It has been emphatically admitted by D.W.2 in her cross-examination that, Plaintiff was not OS.NO: 5671/2014 62 brought to the notice of the document either by Defendant No.1 or by Defendant No.2. Plaintiff has put her thumb impression on alleged Partition Deed having regard to the faith reposed in Defendants No.1 and 2. DW.2 has deposed that, she came to know of Ex.D.29 when Plaintiff issued notice to 1 st Defendant. Be that as it may.
69) Plaintiff, being deaf and dumb, cannot execute alleged Partition Deed by her own accord. Even question of presumption of knowledge of alleged transaction does not arise. It is the contention of Plaintiff that, said document has been created by Defendant No.1 by playing fraud upon her. Defendant No.2 has asserted the same thing. Defendant No.2 in her cross-examination has emphatically deposed that, Defendant No.1 got said Partition Deed by playing fraud upon her and Plaintiff. Plaintiff has pleaded and deposed that, she came to know about the alleged Partition Deed in the month of April, 2014, when Defendant No.1 OS.NO: 5671/2014 63 has denied to pay her rental income in the suit schedule property. Defendant No.2 has deposed that, she came to know about the alleged Partition Deed on receipt of notice issued by Plaintiff, hence, it has been established that, Plaintiff and Defendant No.2 came to the knowledge of alleged Partition Deed in the month of April, 2014. As established, the Partition Deed was created by Defendant No.1 fraudulently. At this juncture, it is relevant to consider two Articles viz., Article 58 and 113 of the Limitation Act, which read as follows :
"
Description Period of Time from which of suit Limitation period begins to run
58. To obtain Three years When the right to any other sue first accrues declaration
113. Any suit Three years When the right to for which no sue accrues period of limitation is provided elsewhere in this Schedule "
OS.NO: 5671/2014 64
70) In this suit, Plaintiff's relief is for partition and separate possession of her share with consequential relief of declaration that Partition Deed is not binding upon her and same be declared as null and void. Being Partition Deed as null and void, Section 34 of the Specific Relief Act, does not come in the way of void document. Under such circumstances, the residuary Article 113 of the Limitation Act is aptly applicable to the instant case. Article 113 specifically states that, limitation runs to begin from the date on which right to sue accrues. Right to sue accrues to Plaintiff in the month of April, 2014. This suit has been filed in the month of July, 2014, hence, it can be fairly said that, suit has been filed well within the period of limitation from the date of cause of action arose;
accordingly, I answer the Additional Issue No.1 in the Negative.
OS.NO: 5671/2014 65
71) Additional Issue No.2: Defendant No.1 contends that, Defendants No.3 to 6 are tenants under Defendant No.1. They are in occupation of suit schedule property. They are not necessary parties to this suit and their presence is not required for adjudication of the matter. It is to be noted that, after filing of this suit by Plaintiff, name of 6th Defendant has been deleted vide Order dated 24.11.2015, hence, question of considering Defendant No.6 as proper or necessary party to this suit does not arise. Plaintiff, in her plaint, has specifically pleaded that, Defendants No.2 to 6 are tenants of suit schedule property and they are proper and necessary parties to this suit. Evidence has also been led by Plaintiff and Defendant No.1 on the said aspect of the matter. From the pleadings of the parties and oral testimony of PW.1 and DW.1, it can be said that, Defendants No.3 to 5 are tenants and they are in occupation of suit schedule property. Plaintiff, in this suit, has sought OS.NO: 5671/2014 66 for mesne profits, which Defendant No.1 derived from rental income. In that context, presence of Defendants No.3 to 5 in this suit has to be considered as proper. In that view of the matter, it can be said that, in order to decide the issue of mense profits, tenancy of Defendants No.3 to 5 gets importance and therefore, they are to be considered as proper parties to this suit; accordingly, I answer the Additional Issue No.2 in the negative.
72) Additional Issue No.4 : Defendant No.1 has taken a bare contention that, suit is not properly valued and proper court fee is not paid. Having gone through the Valuation Slip filed along with plaint, it is clear that, Plaintiff has valued prayer (a) under Section 35(1) of the Karnataka Court Fees & Suits Valuation Act, 1958. Prayer (a) is for partition and separate possession of half share of Plaintiff in suit schedule property. This relief is valued for Rs.21,50,000/- and court fee of OS.NO: 5671/2014 67 Rs.1,15,625/- is paid under Section 35(1) of the Act. Section 35(1) of the Act, states that, "in a suit for partition and separate possession of a share of joint family or of property owned, jointly or in common, by a Plaintif whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of Plaintif's share". In this suit, 1st Defendant has denied the title of Plaintiff on the basis of Ex.D.29, Partition Deed. In that event, Plaintiff has rightly valued the suit on the market value of suit schedule property and paid court fee under Section 35(1) of the Act. No rebuttal evidence has been produced by 1 st Defendant to show that valuation made by Plaintiff in respect of suit schedule property is improper. Under such circumstances, it can be said that, suit has been properly valued and proper court fee has been paid by Plaintiff; accordingly, I answer Additional Issue No.4 in the negative.
OS.NO: 5671/2014 68
73) Issue No.5 : Plaintiff, in the plaint, pleads that, Defendants No.1 and 2 have let out suit schedule property to Defendants No. 3 to 6 and they are getting rental income of Rs.44,000=00 per month and no share of rental income is given to Plaintiff. In the plaint, Plaintiff has given the particulars of tenants, who have been inducted in suit schedule properly and rent paid by them. It is pleaded that, Defendants No.3 and 4 are in the occupation of ground floor, Defendants No. 5 and 6 are in the occupation of first floor and 2 nd floor has been occupied by 1st Defendant. It is further pleaded that, Defendants No.3 and 4 pay rent of Rs.12,000=00 each per month and Defendants No. 5 and 6 pay rent of Rs.10,000=00 per month. Defendant No.1, in his written statement, has emphatically admitted that Defendants No.3 to 6 are the tenants and they are in occupation of suit schedule property. However, it is contended that, Plaintiff has no right, title and interest in suit OS.NO: 5671/2014 69 schedule property as she has already relinquished her right in the year 2002 and hence, question of paying her share in rental income does not arise. As held above, Partition Deed is null and void, whereby, no right, title or interest cannot be transferred to 1st Defendant. Defendant No.1(c), being the legal heir of deceased Defendant No.1, has been examined as DW.1. He has deposed that, there are five houses in suit schedule property. They reside in one house. Remaining 4 houses are in the occupation of tenants. His mother collects all the rentals of suit schedule property. Relevant portion of cross examination of DW.1 reads thus :
" ......... ನನನ ತರಯಯವರದಲ ಎಲರಲ ಕಟಸಡಗಳ ಬರಡಗದಯನರನ ಪಡದಯರತರಸರದ. ದರವರ ಸಸತಸನ ಬರಡಗದಯನರನ ನಮಮ ತರಯಯಲ ಪಡದಯರತಸದರದರದ. ದರವರ ಸಸತಸನಲಲ ಒಟರಸ 5 ಮನದಗಳರ ಇದರದ ಒತದರಲಲ ನರವವ ವರಸಸರತಸದದದಲವದ ಉಳದ 4 ರಲಲ ಬರಡಗದದರರರರ ವರಸಮರಡರತಸದರದರದ . ಬರಡಗದದರರರರ ಎಷದಸಷರಸ ಬರಡಗದಯನರನ ಕದಗಡರತಸದರದರದ ಎನರನವ ವಷಯ ನಮಮ ತರಯಗದ ಗದಗತರಸ, ಆದರದ ನನಗದ ಗದಗತಸಲಲ. ವರದ ಪತಬದಲಲ ಹದಲಳದತತದ ದರವರ ಸಸತಸನ ಮನದಗಳತದ ಸರಮರರರ 44,000/-
ರಗಗಳ ಬರಡಗದ ಬರರತಸದದ ಎನರನವವದರ ನನಗದ ಗದಗತಸಲಲ. .........."
74) From the pleadings of the parties coupled with oral testimony of DW.1, it has been clear that, OS.NO: 5671/2014 70 Defendants No. 3 to 5 are in the occupation of suit schedule property and they are paying rentals to Defendant No.1. It has also been clear that, Plaintiff has not been given her share of rental income till date. In that view of the matter, it can be held that, Defendant No.1, being in wrongful possession of suit schedule property, used to collect the rent from Defendants No.3 to 5 and Plaintiff's share in rental income has been denied. Under such circumstances, Plaintiff is entitled to mesne profit, which was received by Defendant No.1 and after his demise, by Defendant No.1(a) to 1(c) in the form of rent from the tenants of suit schedule property. It is, therefore, required to hold separate enquiry as to the actual rent received by Defendant No.1 and after his demise, by Defendant No.1(a) to
(c) and actual amount of share of Plaintiff in rental income. Accordingly, I answer Issue No.5 in the affirmative.
OS.NO: 5671/2014 71
75) Issue No.3, 4 & 7: Plaintiff and 2nd Defendant, on the basis of Will executed by their father, got mutated their respective names in BBMP in respect of their respective portions of suit schedule property bequeathed to them under the Will and separate numbers were given to their respective portions as Municipal No.141/1-B-2 and 144/1-B-1 respectively. Relevant portions of Special Intimation Letter dated 11.12.2000 at Ex.D.10[4] issued by BBMP read thus :
" 1) ಸದರ ಸಸತಸನ ಪದಪಕ ಬಣಷದತದ ಗರರರತಸರರವ 50 : 12.5 ಅಳತದಯ ಸಸತಸನರನ ಶಬಲಮತ ರತಗಮಮ ರವರರ ವಲಟ ಮಗಲಕ ಪಡದದದರದ, ಈ ಸಸತಸಗದ ಹದಗಸ ಮರನಸಪಲಟ ಸತಖದಣನ 144ನ1-ಬ-1, 2 ನದಲ ಬರಲಕಟ, ತರಣಗರರಜನಗರ ಎತದರ ನಲಡ, ಈ ಸಸತಸನ ಕತದರಯ ವರಷರಕ ಮಮಲಣ ರಗ.2,450-00 ಗಳಗದ ದನರತಕನ 01-10-2000 ರತದ ಜರರಗದ ಬರರವತತದ ನಗದಪಡಸಲರಗದದ. ತತಸತಬತಧ ಆಸಸ ತದರಗದ ರಗ.490-00 ಹರಗಗ ಇತರದಲ ಉಪಕರಗಳರ ರಗ.166-60 ಹರಗಗ ಒಟರಸ ಸರಲಯರನ ತದರಗದ ರಗ.656-60 ಗಳರಗರತಸದದತದರ ತಳಸಲರಗದದ. ಈ ಸಸತಸನ ಖರತದಯನರನ ವಲಟ ಆಧರರದ ಮಲಲದ ಶಬಲಮತ ರತಗಮಮ ರವರ ಹದಸರನಲಲ ನದಗತದರಯಸಲರಗದದ".
" 2) ಸದರ ಸಸತಸನ ಪದಪಕ ಕತದರ ಬಣಷದತದ ಗರರರತಸರರವ 50 : 12.5 ಅಡ ಅಳತದಯ ಸಸತಸನರನ ಶಬಲಮತ ಅತಬರಜಮಮ ರವರರ ವಲಟಮಗಲಕ ಪಡದದದರದ, ಈ ಸಸತಸಗದ ಹದಗಸ ಮರನಸಪಲಟ ಸತಖದಣ ನ 144ನ1-ಬ-2, 2 ನದಲ ಬರಲಕಟ, ತರಣಗರರಜನಗರ ಎತದರ ನಲಡ, ಈ ಸಸತಸನ ಕತದರಯ ವರಷರಕ ಮಮಲಣ ರಗ.2,450-00 ಗಳಗದ ದನರತಕನ 01-10-2000 ರತದ ಜರರಗದ ಬರರವತತದ OS.NO: 5671/2014 72 ನಗದಪಡಸಲರಗದದ. ತತಸತಬತಧ ಆಸಸ ತದರಗದ ರಗ.490-00 ಹರಗಗ ಇತರದಲ ಉಪಕರಗಳರ ರಗ.166-60 ಹರಗಗ ಒಟರಸ ಸರಲಯರನ ತದರಗದ ರಗ.656-60 ಗಳರಗರತಸದದತದರ ತಳಸಲರಗದದ. ಈ ಸಸತಸನ ಖರತದಯನರನ ವಲಟಆಧರರದ ಮಲಲದ ಶಬಲಮತ ಅತಬರಜಮಮ ರವರ ಹದಸರನಲಲ ನದಗತದರಯಸಲರಗದದ".
76) In pursuance of Partition Deed at Ex.D.29, whereunder, suit schedule property has been shown to be allotted to Defendant No.1 on the application of Defendant No.1, khatha entered in the names of Plaintiff and Defendant No.2 in respect of their respective portions of suit schedule property got cancelled and both portions have been amalgamated into single unit and khatha has been entered in the name of Defendant No.1 and a new number has been assigned as Municipal No.144/1-B-1. Relevant portions of Special Intimation Letter dated 13.07.2001 at Ex.D.10(4) read as follows :
"ಬದತಗಳಗರರ ಮಹರನಗರ ಪರಲಕದ, ಪದಮನರಭನಗರ, ವಲಯ ವರಡರ ನ 56, ಗಣದಲಶ ಮತದರ ಮರನಸಪಲಟ ಸತಖದಣನ144ನ1ನ ಬ1 ಮತರಸ 144ನ1ನ ಬ2, 2 ನದಲ ಬರಲಕಟ, ತರಣಗರರಜನಗರ ಸಸತರಸಗಳ ಖರತದ ಕತದರಯವನರನ ಒತದರಗಗಡಸಲರ ಶಬಲನಕದ.ಬರಲಕಕಷಷ ರದಡಡಯವರರ ದನರತಕನ 31-3-01 ರತದರ ಕದಗಲರ ಸಲಲಸಲರದ ಅಜರಯ ವದರಲರದಗದ OS.NO: 5671/2014 73 ಹರಗಗ ಅಜರದರರರರ ಹರಜರರ ಪಡಸರರವ ದರಖಲದಗಳ ಆಧರರ ಉಪ ಕತದರಯ ಅಧಕರರ (ಬಸವನಗರಡ) ಬದತಗಳಗರರ ಮಹರನಗರ ಪರಲಕದ, ಬದತಗಳಗರರ, ರವರರ ಸದರ ಸಸತಸನ ಖರತದ ಕತದರಯವನರನ ಒತದರಗಗಡಸರವಕದಯನರನ ದನರತಕನ1-4-2001 ರತದ ಜರರಗದ ಬರರವತತದ ಈ ಕದಳಕತಡತತದ ಅನರಮಲದಸರರತರಸರದ".
"ಶಬಲನ ಕದ.ಬರಲಕಕಷಷರದಡಡ ಯವರರ ಸಸತಸನ ಸತಖದಣನ 144ನ1ನ ಬ1 ಅನರನ ಶಬಲಮತ ನ ರತಗಮಮ ನವರತದ ಮರನಸಪಲಟ ನತನ144ನ1ನ ಬ2 ಅನರನ ಶಬಲನ ಅತಬರಜಮಮ ನವರತದ ಒಟರಸಗ ಹಬರಬ ಪತಬದ ಮರಖದಲನ ಪಡದದರರತರಸರದ . ಎರಡಗ ಸಸತರಸಗಳ ಅಳತದಯರ 12.5ನ 50 ಅಡಗಳದರದ, ಒಟರಸ ಎರಡರ ಸಸತರಸಗಳ ಅಳತದ 25ನ 50 ಆಗರತಸದದ. ಹಲಗದ ಒತದರಗಗಡಸಲರದ ಒಟರಸ ಅಳತದ 25ನ 50 ಅಡಗಳ ಸಸತಸಗದ ಮರನಸಪಲಟ ಸತಖದಣ ನ 144ನ1ನ ಬ1, 2 ನದಲ ಬರಲಕಟ, ತರಣಗರರಜನಗರ, ವರಡರನ 56, ಗಣದಲಶ ಮತದರ ಎತದರ ನಲಡ ಹರಲ ಎರಡರ ಸಸತರಸಗಳ ವಸತ ವರಷರಕ ಮಮಲಣ 2450 - 2450 4900-00 (ವಸತ)ಗಳಗದ ದನರತಕನ 1-4-2001 ರತದ ಜರರಗದ ನಲಡಲರಗ, ತತಸತಬತಧ ಆಸಸ ತದರಗದ ರಗನ 980-00 ಹರಗಗ ಇತರದ ಉಪಕರಗಳರ 333-20 ರಗ.ಗಳರ ಸದಲರ ಒಟರಸ ಸರಲಯರನ ತದರಗದ ರಗನ 1313-20 ರಗ.ಗಳರಗರತಸದದತದರ ತಳಯಪಡಸ, ಸದರ ಸಸತಸನ ಖರತದಯನರನ ಶಬಲನ ಕದ. ಬರಲಕಕಷಷರದಡಡ ಯವರ ಹದಸರಗದ ವಗರರಯಸಲರಗದದ".
77) From the above documents, it is crystal clear that, before Partition Deed at Ex.D.19 came into existence, suit schedule property were two separate portions and same were numbered as 144/1-B-1 and 144/1-B-2. After that, same have been merged as a single unit on the application of Defendant No.1 and a separate kkatha has been entered in the name of Defendant No.1 as OS.NO: 5671/2014 74 Municipal Khatha No.144/1-B-1. In this background, Plaintiff's relief is to be looked into. As partition deed has been proved to be void document and same has been held as null and void, Plaintiff's relief for half share in suit schedule property is maintainable as suit schedule property has been made as a single unit as per Ex.D10[4] based on Partition Deed. It is, therefore, this Court holds that Plaintiff is entitled to half share in suit schedule property by metes and bounds. When fact being thus, till effecting division of suit schedule property by metes and bounds, it is necessary to restrain Defendant No.1(a) to (c) not to change the nature of suit schedule property in order to prevent multiplicity of judicial proceedings. In this view of the matter, this Court is of the view that, Plaintiff is entitled for the reliefs as prayed for; accordingly, I answer the Issues No.3, 4 and 7 in the affirmative.
OS.NO: 5671/2014 75
78) Issue No.8: For the foregoing discussion and findings on Issues No.1 to 7 and Additional Issues No.1 to 4, I pass the following :
ORDER (1) Suit of Plaintiff is hereby decreed with costs.
(2) Partition Deed dated 18.10.2002 registered in the Office of Proper Officer and Sub-Registrar, Chamrajpet, Bengaluru, as Document No.3368/2002-03; is hereby declared as null and void and same is not binding on Plaintiff.
(3) It is hereby ordered and decreed that, Plaintiff is entitled to half share in suit schedule property by metes and bounds.
(4) It is further ordered and
decreed that, division of suit
schedule property can be effected by metes and bounds by appointing a Court Commissioner.
OS.NO: 5671/2014 76 (5) It is ordered that, Plaintiff is entitled to mesne profits. A separate enquiry shall be held to assess the actual mesne profits, which received by Defendant No.1 and after his demise, by Defendants No.1(a) to (c).
(6) Defendants No.1(a) to (c) are hereby restrained by way of Permanent Injunction not to change the nature of suit schedule property till handing over actual possession of Plaintiff's share in suit schedule property.
(7) Draw preliminary decree
accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, dated this the 21st day of January, 2020.) (RAMA NAIK) VI Addl.City Civil & Sessions Judge, Bengaluru City.
OS.NO: 5671/2014 77 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Dr.Kantharaj.J dtd.25.08.2014 P.W.2 - Dr.M.Mahesh Babu, dd.27.09.2014 P.W.3 - Sri.K.Shankar Reddy, dtd.06.03.2017
(b) Defendants side :
D.W.1 - Sri.Suresh.B, dtd. 07.12.2017 D.W.2 - Smt.K.Rangamma, dtd.10.04.2019 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 OPD Card of Plaintiff issued by Victoria Hospital, Bengaluru.
Ex.P.2 Certificate for the persons with Disabilities issued by Victoria Hospital, Bengaluru.
Ex.P.3 Medical Certificaste for Deaf & Dumb issued by Regional Medical Board, S.V.R.R. Govt.General Hospital, Tirupathi.
Ex.P.4 Ration Card issued by Mandal Revenue Office Ex.P.5 Certified copy of Hissa Patra, dtd.2.1.2001 Ex.P.6 Certified copy of Cancellation deed of Hissa Patra dtd.18.10.2002 Ex.P.7 Certified copy of Partition Deed dtd.18.10.2002 OS.NO: 5671/2014 78 Ex.P.8 Katha extract dtd.27.03.2014 in the name of K.Balakrishna Reddy Ex.P.9 Encumbrance Certificate from 01.04.2010 to 31.03.2004 Ex.P.10 Encumbrance Certificate from 01.04.2004 to 27.03.2014 Ex.P.11 Office copy of legal notice dtd.05.05.2014 Exs.P.12 Acknowledgements (3 Nos.) to P.14 Ex.P.15 Copy of legal notice dtd.05.06.2014 Ex.P.16 Intimation slip issued by Postal Dept. Exs.P.17 RPAD Covers (2 Nos.) & P.18
(b) Defendants' side :
Ex.D.1 Katha Certificate dtd.19.06.2017 Ex.D.2 Katha Extract dtd.19.06.2017 Ex.D.3 Property Tax Receipt for the year 2017- 18 Ex.D.4 Katha Certificate dtd.14.10.2009 Ex.D.5 Katha Extract dtd.14.10.2009 Ex.D.6 Tax Demand Register Extract (7) Ex.D.7 Duplicate copy of Plan issued by Asst.Executive Engineer, BMP Ex.D.8 Tax Demand Register Extract Ex.D.9 Certificate Issued by BBMP dtd.27.02.2002 Ex.D.10 Requisition submitted to BBMP (4) Exs.D.11 to Encumbrance Certificates (3 Nos.) 13 Ex.D.14 Letter dtd.12.01.2009 issued by Bank of Baroda OS.NO: 5671/2014 79 Ex.D.15 Certified copy of Simple Mortgage Deed with Encumbrance Certificate Ex.D.16 Certified copy of Discharge Deed dtd.17.01.2017 Ex.D.17 Copy of legal notice dtd.13.05.2014 Issued to Advocate for Plaintiff with postal receipt Ex.D.18 Returned unserved notice with postal cover and acknowledgment Ex.D.19 Certified copy of registered Gift Deed dtd.21.06.2000 (Telugu Language) Ex.D.19(a) Computerzied translated copy of Ex.P.19 in Kannada language Ex.D.20 Certified copy of registered Sale Deed dtd.19.10.2000 (Telugu language) Ex.D.20(a) Computerized translated copy of Ex.D.20 in Kannada language Ex.D.21 Certified copy of registered Sale Deed dtd.24.09.2003 ( Telugu language) Ex.D.21(a) Computerized translated copy of Ex.D.21 in Kannada language Ex.D.22 Certified copy of registered Sale Deed dtd.12.06.2002 ( Telugu language) Ex.D.22(a) Computerized translated copy of Ex.D.22 in Kannada language Ex.D.23 Certified copy of plaint in O.S.No.348/12 filed by Plaintiff against Defendant. Ex.D.24 Certified copy of written statement of Defendant No.1 in O.S.No.348/12. Ex.D.25 Certified copy of affidavit filed by Sri.K.Sankar Reddy in O.S.No.348/12 Ex.D.26 Certified copy of Applicatin/Petition filed u/O.22 R.4 of CPC in OS.No.348/12 Ex.D.27 Original registered Hissa Patra dtd.02.01.2001 OS.NO: 5671/2014 80 Ex.D.28 Original registered Cancellation Deed dtd.18.10.2002 Ex.D.29 Original registered Partition Deed dtd.
18.10.2002
Ex.D.30 Photographs - 2 Nos.
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VI Addl.City Civil & Sessions Judge Bengaluru City.