Bangalore District Court
Smt. S. Lalitha vs Smt. Lakshmamma on 16 November, 2021
KABC010091622013
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH No.25).
Dated: This the 16 th day of November, 2021
Present: Smt. ISHRATH JAHAN ARA, B.A.L., LL.B.,
III Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.6223/2013
PLAINTIFFS: 1. Smt. S. Lalitha
D/o. Late. G. Seetharam
W/o. V. Sreenivas
Aged about 46 years,
R/at.Prakruthi Nailaya,
1st Floor, 3rd Cross,
Muneshwara Layout,
K.R.Puram,
Bangalore-560 036.
2. Smt. S.Pramila
D/o. Late. G.Seetharam
W/o. Dinesh
Aged about 44 years,
R/at. No.311, Near
Venugopalaswamy Temple
Krishnappa Building,
Kadagudi Shigehalli,
Kanmangala Post
Bangalore-560 067
(By Sri.Venkatesh Murthy N,
Advocate)
VERSUS
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O.S.No.6223/2013
DEFENDANTS: 1. Smt. Lakshmamma
W/o. Late. G.Seetharam,
Aged about 65 years,
No.340, Ganga Kruppa,
New Colony, Devasandra
Village, Krishnarajapura Post,
Bangalore-560 036.
2. Sri.S. Venkatachalapathi
S/o. Late. G.Seetharam,
Aged about 48 years,
No.340, Ganga Kruppa,
New Colony, Devasandra
Village, Krishnarajapura Post,
Bangalore-560 036.
Also At
Sri. S.Venkatachalapathi
S/o. Late. G.Seetharam
Staff No.8412, Dept. No. 732
T.D.P. 1st Floor, ITI Limited
Dooravani Nagar,
Bangalore-560 016.
3. Smt. Manjula
D/o. Late. G.Seetharam
W/o. Nagaraj
Aged about 42 years,
No.340, Ganga Kruppa
New Colony, Devasandra
Village, Krishnarajapura Post
Bangalore-560 036.
4. Smt. Pramila
S/o. M. Sridhar
Aged about 47 years,
Door No.240, 1st Main Road
3rd Phase, Manjunath Nagar
Rajajinagar,
Bangalore-560 010.
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O.S.No.6223/2013
(D.1 to 3 by Sri.K.G.Bhat,
Advocate)
(D.4 by Sri.V.B.Shivkumar,
Advocate)
Date of Institution 26-08-2013
Nature of Suit Suit for Partition
Date of commencement of 11.10.2019
evidence
Date of pronouncement of 16.11.2021
Judgment
Total Duration Years Months Days
08 02 10
J UD GM E N T
The Plaintiffs have filed this suit against the
defendants seeking to pass a judgment and decree of
partition and separate possession of 1/4th share to
each plaintiffs in the suit schedule property by metes
and bounds and also to declare that the Sale Deed
No.15074/1994-95 dated 31.3.1995, Rectification
Deed No.8773/2002-03 dated 17.9.2002 and Sale
Deed dated 13061/2002-03 dated 28.11.2002 is not
binding on the plaintiffs rights and titles and it is
null and void.
The schedule of the plaint is as under;
SCHEDULE
All that piece and parcel of the suit property
bearing (Old No.75) Katha No.40/2/65-75, situated
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O.S.No.6223/2013
at Devasandra, K.R.Puram Hobli, Bangalore East
Taluk, Bangalore measuring to an extent of East to
West 45 feet, South to North 60 feet and bounded as;
East by : Private property
West by : Private property
North by : Drainage and private property
South by : Road.
2. The brief facts of plaintiffs case are as
under;
The plaintiffs stated that one Late.G.Seetharam
was the original owner of suit schedule property and
he has his wife Smt.Lakshmamma, who is the
defendant No.1 herein and four children by name (1)
S. Venkatachalapathi, who is defendant No.2 herein,
(2) S.Lalitha, (3) S.Pramila, who are the plaintiffs
No.1 and 2 herein and (4) Smt. Manjula, who is the
defendant No.3 herein. The defendant No.4 is the
purchaser of the suit property. The plaintiffs and
defendant Nos.1 to 3 together constitute Hindu Joint
Family governed by Mitakshara School of Hindu Law
and the suit property is the joint family property of
plaintiffs and defendants 1 to 3. the suit schedule
property was originally purchased by
Late.G.Seetharam under a Sale Deed dated
12.8.1971 and after his death, the defendant No.1
along with the plaintiffs and defendant Nos.2 and 3
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O.S.No.6223/2013
have jointly succeeded the suit property and they
were in joint possession and enjoyment. After the
demise of Late.G.Seetharam, who is the father of
these plaintiffs and defendant Nos.2 and 3 and
husband of defendant No.1, the defendant No.1 was
under mental shock and she underwent depression
in her life and by taking advantage of the mental
condition of defendant No.1, defendant No.2, who is
the only male member has managed to obtain a Sale
Deed in his favour with respect to suit property from
the hands of defendant No.1 under a Sale Deed
dated 31.3.1995 which was registered before the
office of the Sub-Registrar. Thus, plaintiffs are not
the signatories to the Sale Deed and even they have
not consented for the sale. Subsequently, the
defendant No.1 also executed a Rectification Deed
dated 17.9.2002 in favour of defendant No.2. The
defendant No.1 has no any absolute right to alienate
the suit property in favour of defendant No.2 without
effecting partition and allotting shares in favour of
these plaintiffs. Even after execution of the Sale
Deed in favour of defendant No.2, the suit property
was continued to be the joint family property in joint
possession and enjoyment without there being any
actual partition between the plaintiffs and
defendants 1 to 3. The plaintiffs, on several times
demanded the defendants to effect partition and allot
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O.S.No.6223/2013
their legitimate share in the suit property, but
however, the defendants 1 to 3 have dragged the
matter on one or the other reason. The defendant
No.2 taking undue advantage of the Sale Deed and
Rectification Deed has illegally sold the suit property
in favour of defendant No.4 by executing a registered
Sale Deed dated 28.11.2002 which was duly
registered before the office of the Sub-Registrar with
an intention to deprive the rights of these plaintiffs.
The Sale Deed standing in the name of defendant
No.4 is not binding on these plaintiffs as these
plaintiffs were not the party to the sale transcription
and even the said sale is not for the legal necessity .
Thus, plaintiffs being the legal heirs of
Late.G.Seetharam have got definite share in the suit
property by metes and bounds. These plaintiffs
approached the defendant No.2 and requested to
effect partition but however, defendant No.2 has
refused to effect partition and he proclaimed that he
has already alienated the suit property in favour of
defendant No.4. Later on, these plaintiffs collected
all the documents from the concerned department
and approached this Court and filed this suit for
partition.
3. After service of summons, the Defendant
Nos.1 to 3 and 4 have appeared before the Court
through their respective learned counsels.
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O.S.No.6223/2013
The defendant Nos.1 to 3, though appeared
before this Court through their counsel have not
chosen to contest the proceedings by filing their
written statements. It is only defendant No.4 who
has filed written statement wherein she denied the
rights of the plaintiffs over the suit property and
even denied the very fact that under the Sale Deed
she has not derived any kind of right, title or
interest, much less possession over the suit
property. The defendant No.4 stated that the prayer
sought by the plaintiffs in this suit is improper and it
cannot be granted. The suit of the plaintiffs is
barred by limitation as these plaintiffs after
execution of Sale Deed in favour of defendant No.2
on 31.3.1995 and subsequent to execution of
document of Rectification Deed dated 17.09.2002
and later the Sale Deed dated 28.11.2002 executed
in her favour after taking sale consideration amount,
filed false suit after long lapse of delay and on this
ground along, the suit of the plaintiffs has to be
dismissed. There is no cause of action accrued to
these plaintiffs to file this suit. The plaintiffs are not
in possession of suit property and they are not
having any kind of right to file the suit. The
plaintiffs have not properly valued the suit for the
purpose of court fee and even the court fee paid on
the plaint is incorrect and insufficient and even on
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O.S.No.6223/2013
this ground, the suit of the plaintiffs has to be
dismissed. The suit property is the self-acquired
property of Late.G.Seetharam and during the lifetime
of Late.G.Seetharam he did not constitute any Hindu
Undivided Joint Family nor he has constituted any
joint family properties. There is no existence of joint
family as contended by these plaintiffs. After the
death of Late.G.Seetharam, the plaintiffs and
defendant Nos.1 to 3 have succeeded the suit
property and subsequently thereon the defendant
No.1 executed the registered Sale Deed dated
31.3.1995 in favour of her son defendant No.2 and
subsequently she executed a Rectification Deed
dated 17.09.2002 in respect of suit property. At the
time of execution of Sale Deed and Rectification
Deed, the defendant No.1 was very much hale and
healthy and she was capable to understand. The
Sale Deed executed on 31.3.1995 was consented by
all the daughters of defendant No.1 and even these
plaintiffs along with defendant No.3 have affixed
their signatures as consenting witnesses to the
document and they have lawfully conveyed title of
the suit property in favour of defendant No.2. The
defendant No.2 purchased the suit property for
valuable sale consideration amount and he paid the
consideration to defendant No.1 and accordingly the
suit property was transferred in the name of
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O.S.No.6223/2013
defendant No.2. The suit property was alienated for
the marriage expenses of the daughters in the family
and under the Sale Deed, they have lawfully
conveyed the title of the suit property. This
defendant No.4 has lawfully purchased the suit
property under Sale Deed from the original owner
and under the Sale Deed the title over the suit
property was lawfully conveyed. The plaintiffs and
defendant No.3 are all literate persons and they after
understanding the Sale Deed have made their
signature as consenting witnesses. The plaintiffs are
not entitled for any share in the suit property, much
less 1/4th share as claimed by them. The plaintiffs
even though executed the Sale Deed by affixing their
signatures as consenting witnesses to the sale
transaction in favour of defendant No.2 on
31.3.1995, the plaintiffs, with an intention to make
unlawful gain for themselves and to extract money
from this defendant No.4 filed this false and
ficticious suit without there being any cause of
action. This defendant No.4 is the purchaser of the
suit property under a registered Sale Deed dated
28.11.2002 for the valuable sale consideration of
Rs.1,92,000/- and under the Sale Deed, the
possession of the suit property was delivered in
favour of defendant No.4. The first defendant along
with Smt. Parvathamma and Lalithamma are the
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O.S.No.6223/2013
witnesses to the Sale Deed and later thereon a
Rectification Deed was also been executed and even
to the Rectification Deed, the very same
Padmavathamma and Lakshmamma are the
signatories. The defendant No.2 has lawfully
conveyed the title of the suit property in her favour
and delivered the vacant possession of the suit
property. Since from the date of purchase of the suit
property, this defendant No.4 is in lawful possession
and enjoyment over the suit property as the absolute
owner and based on her title and possession over the
suit property, the BBMP has also transferred khata
in her name and she is regularly paying taxes payabe
to the suit property. The plaintiffs after execution of
the Sale Deed in her favour on 28.11.2002, after long
lapse of 11 years of delay, by making false allegation
against the defendants have filed this suit. The
plaintiffs after having fixed their signatures as
consenting witnesses to the Sale Deed of defendant
No.2 dated 31.3.1995, they have no right over the
suit property. The second defendant having become
the exclusive owner of the suit property under a Sale
Deed dated 31.3.1995, the plaintiffs and defendant
Nos.1 to 3 have no title or possession over the suit
property and they are ousted out of possession over
the suit property. The plaintiffs colluding with
defendant No.1, 2 and 3 have filed this false suit by
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O.S.No.6223/2013
making false claim over the suit property. Hence,
prays to dismiss the suit of the plaintiffs.
4. Based on the above pleadings, this Court
has framed following issues:-
1.Whether the plaintiffs prove that suit property is joint family property of themselves and defendant No.1 to 3 ?
2. Whether the defendant No.4 proves that Court fee paid on the plaint is insufficient ?
3. Whether the defendant No.4 proves that suit is barred by limitation?
4. Whether the plaintiffs are entitled for the reliefs as prayed for ?
5. What Order or Decree?
5. The Plaintiffs in order to prove their case, got examined second plaintiff as PW.1 and from her side 9 documents were marked as per Ex.P.1 to 9 and closed their side of evidence. After closure of plaintiffs side evidence, the defendant No.4 got herself examined as DW.1 and from her side 34 documents were marked as per Ex.D.1 to D.34 and closed her side of evidence.
6. Heard arguments and perused the records.
12O.S.No.6223/2013
7. The answers to the above Issues are:
Issue No.1 - In the Negative, Issue No.2 - In the Affirmative, Issue No.3 - In the Affirmative, Issue No.4 - In the Negative, Issue No.5 - As per Final Order, for the following:
R E A S ON S
8. Issue No.1 : The entire burden is on the plaintiffs to prove that the suit property is the joint family property of themselves and defendants 1 to 3 in their joint possession and enjoyment as on the date of filing of suit without there being any partition among themselves and as such, they are entitled for each 1/4th share in the suit property.
9. The plaintiffs in order to prove their case and also to prove this issue got examined the second plaintiff as PW.1. PW.1 stepped into the witness box and filed her affidavit in-lieu of oral evidence wherein she has reiterted the plaint averments and deposed that the suit property was purchased by her father Late.G.Seetharam under a Sale Deed dated 12.8.1971 during his lifetime and he became the absolute owner in lawful possession and enjoyment of the suit property till his death. She deposed that after the death of her father Late.G.Seetharam, she 13 O.S.No.6223/2013 along with plaintiff No.2 and defendant No.3 being the daughters of Late.G.Seetharam and defendant No.1 who is her mother along with her brother defendant No.2 have jointly succeeded the suit property and they were in joint possession and enjoyment of suit property without there being any partition among themselves. She deposed that her mother defendant No.1, without having any absolute right over the suit property and when she was under
mental shock and underwent depression in her life after the death of her husband Late.G.Seetharam , the defendant No.2 by taking undue advantage of the condition of her mother got obtained the Sale Deed dated 31.3.1995 in his favour and subsequently they have executed a Rectification Deed dated 17.9.2002 in respect of suit property. She deposed that the defendant No.1 has no absolute right, title to alienate the property by excluding all the rights of other successors. She deposed that she along with other plaintiffs and defendant Nos.1 to 3 being the legal heirs of Late.G.Seetharam are each entitled for 1/4th share in the suit property as per the Hindu Succession Act. She deposed that she demanded the defendants to effect partition and allot her legitimate share in the suit property, however, the defendant No.2 has dragged the matter on one or the other reason and stated that he has purchased the suit 14 O.S.No.6223/2013 property from the defendant No.1 under a Sale Deed. She deposed that defendant No.2 has not derived any right, title or interest, much less possession over the suit property under the Sale Deed dated 31.3.1995 and Rectification Deed dated 17.9.2002.
however, he has illegally sold the suit property in favour of defendant No.4 under a Sale Deed dated 28.11.2002 and he executed the said Sale Deed only with an intention to deprive their rights over the suit property. She deposed that both the Sale Deeds standing in the name of defendant No.2 as well as defendant No.4 is not binding upon them with respect to their legitimate share in the suit property. She deposed that they demanded the defendant Nos.1 and 2 several times to effect partition and allot their legitimate share in the suit property, but however defendant No.2 has openly refused to effect partition and informed that he has already sold the suit property in favour of defendant No.4. She deposed that later on they have collected the documents from the concerned officers and filed this suit for claiming their share in the suit property. She deposed that after they obtained the document from the concerned department, they came to know that their signatures have been forged on the Sale Deed dated 31.3.1995 and by impersonating them before the office of the Sub-Registrar a false 15 O.S.No.6223/2013 document has been created in the name of defendant No.2 wherein she along with other plaintiffs and defendant No.3 was made as a consenting witness to the Sale Deed as such, they have filed a criminal case against the defendants before the 10 th ACMM Court, Bangalore which was registered in Criminal Case No.52428/2015 and the said case is still pending adjudication. She deposed that as defendants are refused to effect partition, they approached this Court and filed this suit.
10. PW.1, in order to corroborate her testimony got produced the certified copy of the Sale Deed of her father dated 12.8.1971, marked as Ex.P.1. She got produced the certified copy of the Sale Deed of defendant No.2 executed by defendant No.1 on 31.3.1995 marked as Ex.P.2. She got produced certified copy of the Rectification Deed dated 17.9.2002 executed by defendant No.1 in favour of defendant No.2 in respect of suit property marked as per Ex.P.3. She got produced the Encumbrance Certificates marked as per Ex.P.4 and P.5 respectively. She got produced the certified copy of the the Sale Deed executed by defendant No.2 in favour of defendant No.4 on 28.11.2002 marked as per Ex.P.6. She got produced the certified copy of the order sheet of C.C.No.52428/2015 filed by them against defendant 2 and others along with certified 16 O.S.No.6223/2013 copy of the plaint filed in the said case and certified copy of the list of the documents of the said case marked as per Ex.P.7 to P.9 respectively.
11. The defendant Nos.1 to 3 even though appeared before this court, however they did not choose to contest the proceedings. The defendant Nos.1 to 3 even did not come forward to cross- examine PW.1, however, it is only the defendant No.4 who is the subsequent purchaser of the suit property contested the suit and her learned counsel subjected PW.1 for cross-examination by denying her testimony. PW.1 in her cross-examination has clearly admitted that on 31.3.1995 the suit property was sold in favour of her brother defendant No.2. She further admitted the suggestion that her mother defendant No.1 was residing along with defendant No.2. Even though PW.1 has stated that now the defendant No.1 and defendant Nos.2 are residing at Kolar, but however, the plaintiff No.1 has given the address of the defendant Nos.1 and 2 in the cause title of the plaint by showing that they were residing at Devasandra, K.R.Puram Post, Bangalore. PW.1 further stated that at the time of execution of the Sale Deed dated 31.3.1995, she along with the second plaintiff and defendant No.3 were residing separately and they were residing at their matrimonial house along with their respective 17 O.S.No.6223/2013 husbands. PW.1 further stated that she is aware of the Sale Deed dated 31.3.1995 and even she has stated that she has studied upto SSLC and as such she was able to read and write Kannada language. PW.1 except adducing the oral evidence that her mother defendant No.1 after death of her father Late.G.Seetharam was under shock and underwent depression, has not chosen to produce any documents before this Court to prove this fact. PW.1 except stating that she has produced the documents before this Court about the mental condition of her mother, has admittedly not chosen to produce any piece of document before this Court in order to prove that defendant No.1 is suffering from depression and she is under mental shock nor she has produced any document to prove that defendant No.1 is under medication and as such she was unable to understand the situation and conditions around her.
12. PW.1 stated that she is not aware of the fact that defendant No.4 has purchased the suit property in the year 2002 and even she has not verified in whose name the khata of the suit property is standing. On the contrary, PW.1 has clearly admitted that it is the defendant Nos.1 and 2 who have performed their marriages by spending funds. Likewise, she admitted the suggestion that it is the 18 O.S.No.6223/2013 defendant No.2 even without having any job performed their marriages and he borneout the marriage expenses. However, she denied the suggestion that defendant No.2 has taken loan for performing the marriages of his sisters and he, in order to repay the loan amount and for the benefit of the family sold the suit property in favour of defendant No.4.
13. PW.1 in her cross-examination even though denied the suggestion that she along with first plaintiff and defendant No.3 have personally went to the office of the Sub-Registrar while at the time of execution of the Sale Deed dated 31.3.1995 in favour of defendant No.2 and thereby consenting for the Sale Deed had affixed their signatures as consenting witnesses to the Sale Deed and have executed the Sale Deed in favour of defendant No.2. However, PW.1 has categorically admitted that her name is S.Pramila and she make her signature as S.Pramila and sometimes she writes only Pramila. She admitted the suggestion that she has signed the plaint as S.Pramila and even admitted the suggestion that first plaintiff make her signature as S.Lalitha and the very same signature was made in the plaint. However, she denied the suggestion that she is making her signature differently on each time and sometimes, she used to make her signature only as 19 O.S.No.6223/2013 Pramila and sometimes as S.Pramila. PW.1 in her cross-examination admitted the suggestion that till the date of filing of the suit, she has not challenged the signatures found on Ex.P.2 Sale Deed and even she has not issued any notice to defendant No.2 and likewise they have not objected for the Sale Deed. She denied the suggestion that she along with first plaintiff and defendant No.3 being consenting witnesses to the Sale Deed executed the Sale Deed in favour of defendant No.2 on 31.3.1995 for the valuable sale consideration amount. She denied the suggestion that after her mother executed the Sale Deed as per ExP.2, she received the sale consideration amount from defendant No.2 and subsequently it was partitioned among all the daughters and accordingly she has taken her share by way of cash amount. PW.1 denied the suggestion that defendant No.2 being the absolute owner of the suit property has lawfully sold the suit property for valuable sale consideration amount in favour of defendant No.4 by executing a registered Sale Deed as per Ex.P.6. Likewise, she denied the suggestion that in the suit property there was a sheet house constructed by defendant No.2 after he purchased the suit property from defendant No.1 under the Sale Deed Ex.P.2 and later on defendant No.4 has renovated the suit property by putting up RCC 20 O.S.No.6223/2013 structure in the suit property. She denied the suggestion that she along with first plaintiff and defendant No.3 having accepted the sale made in favour of defendant No.2 and have voluntarily affixed their signture as consenting witnesses to the Sale Deed and accordingly the defendant No.1 executed the Sale Deed in favour of defendant No.2 as per Ex.P.2.
14. PW.1 except adducing and marked the certified copy of the Sale Deed of her father dated 12.8.1971 has not chosen to explain about existence of original document and even she has not stated in whose custody the original document is with. However, it is an admitted fact that the suit property was originally purchased by the father of PW.1 under Ex.P.1 Sale Deed for the valuable sale consideration amount and became the absolute owner of the suit property. It is also admitted fact that the father of the plaintiffs and defendant No.2 and 3 and husband of defendant No.1 Late.G.Seetharam died intestate without executing any testamentary document. It is also an admitted fact that the plaintiffs as well as the defendant Nos.1 to 3 are the legal heirs of the deceased G.Seetharam and all of them have jointly succeeded the suit property after his death. However, PW.1 herself got produced the certified copy of the Sale Deed executed by defendant No.1 in favour of 21 O.S.No.6223/2013 defendant No.2 on 31.3.1995 marked as per Ex.P.2 wherein it has been clearly stated that the plaintiffs as well as defendant No.3 have made their signatures as consenting witnesses to the said Sale Deed. PW.1 herself got produced Ex.P.3 registered Rectification Deed executed by defendant No.1 in favour of defendant No.2 in respect of suit schedule property. Even though the plaintiffs have seriously disputed the rights of defendant No.1 to execute Ex.P.2 and P.3 document in favour of defendant No.2 by alienating the suit property, however, the plaintiffs have not chosen to deny the execution of Ex.P.2 and 3 document in favour of defendant No.2 and even they have not denied the fact that under Ex.P.2, the defendant No.1 has received the consideration amount and delivered the vacant possession of the suit property in favour of defendant No.2.
15. On the contrary, defendant No.4, in order to prove that she has lawfully purchased the suit property from the original owner and she is the bona-fide purchaser of the suit property for value got herself examined as DW.1. DW.1 filed her affidavit in-lieu of oral evidence, wherein she has categorically deposed that the defendant No.1 being the mother of plaintiffs and defendant No.2 and 3 has sold the suit property in favour of defendant No.2 by executing a registered Sale Deed dated 31.3.1995 and 22 O.S.No.6223/2013 subsequently she executed a rectification deed on 17.9.2002. She deposed that the plaintiffs as well as the defendant No.3 have consented for the Sale Deed executed by defendant No.1 in favour of defendant No.2 on 31.3.1995 and they have affixed their signatures as consenting witnesses to the Sale Deed and accordingly the suit property was lawfully conveyed in favour of defendant No.2. she deposed that the defendant No.2 being the absolute owner in lawful possession and enjoyment over the suit property based on the Sale Deed dated 31.3.1995 and Rectification deed dated 17.9.2002 has lawflly sold the suit property in her favour by executing a registered Sale Deed dated 28.11.2002 and conveyed the title of the suit property in her favour. She deposed that she is the bona-fide purchaser of the suit property under a registered Sale Deed and even prior to the purchase of the suit property, she made enquiries and all the neighbouring owners of the suit property including Smt.Lakshmamma and all of them have stated that the defendant No.1 has lawfully sold the suit property along with the consent of her daughters in favour of her son defendant No.2. She deposed that before purchase of the suit property, she exercised her due diligence and it is only after satisfying that plaintiffs and defendant No.3 were consenting witnesses to the Sale Deed 23 O.S.No.6223/2013 dated 31.3.1995 and they have made their signatures to the Sale Deed as consenting witnesses, she has lawfully purchased the suit property for the valuable sale consideration of Rs.1,92,000/-. She deposed that since from the date of purchase of the suit property, she became the absolute owner in lawful possession and enjoyment of the suit property and subsequently, she has constructed a new RCC building in the suit property by investing huge amount as there was an old and dilapidated sheet house existing in the suit property. She deposed that she has developed the suit property by investing huge amount and constructed two different units for tenants and also obtained electricity connection to the suit property in her name and she is exercising her possessory and proprietary right over the suit property. She deposed that one of the plaintiffs is her classmate and as such she was aware of all the transactions took place in between herself with defendant No.2 and all these plaintiffs as well as the defendant No3 were aware of the transaction and they only with an intention to make a wrongful gain for themselves filed this false suit. She deposed that she is the absolute owner in possession and enjoyment over the suit property based on the Sale Deed and as such these plaintiffs are not entitled for any share, much less 1/4th each in the suit 24 O.S.No.6223/2013 property. She deposed that, based on the Sale Deed the khata of the suit property was mutated in her name and all the municipal records in respect of suit property is standing in her name.
16. DW.1 in order to corroborate her testimony got produced the original Sale Deed of Late.G.Seetharam executed by Jayaram Shetty on 12.8.1971 in respect of suit property marked as per Ex.D.1. She got produced the original Sale Deed executed by defendant No.1 in favour of defendant No.2 on 31.3.1995 with respect to the suit property marked as Ex.D.2. She got produced the original registered Rectification Deed dated 17.9.2002 executed by defendant No.1 in favour of defendant No.2, marked as per Ex.D.3. She got produced the original Sale Deed dated 28.11.2002 executed by defendant No.2 in her favour in respect of suit property marked as per Ex.D.4. She identified the signature of defendant No.2 on Ex.D.4 along with her signatures marked as per Ex.D.4(a) and D4(b) respectively. She got identified the LTM impression of defendant No.1 on her Sale Deed marked as per Ex.D.4(c). She got identified the signatres of the witnesses Smt.Pramila, wife of defendant No.2 on Ex.D.4 marked as per Ex.D.4(d) respectively. She got produced the endorsement issued by the City Municipal Corporation on 17.1.1998 marked as per 25 O.S.No.6223/2013 Ex.D.5. She got produced the Tax Demand notice marked as per Ex.D.6, She got produced the Uttara Patra along with khata certificates of the suit property standing in her name in respect of suit property based on the registered Sale Deed marked as per Ex.D.7 to D.10 respectively. She got produced demand register extracts of the suit property originally standing in the name of defendant No.1 and subsequently transferred in the name of defendant No.2 and later thereon transferred in her name based on the registered Sale Deeds marked as per Ex.D.11 to D.14 respectively. She got produced 21 tax paid receipts marked together as Ex.D.15. She got produced the encumbrance certificate marked as per Ex.D.16, she got produced the equitable registered Mortgage Deed executed in favour of M/s. Sreenidhi Souharda Sahakari Bank Niyamitha for the security of the loan amount borrowed by her, marked as per Ex.D.17, she got produced the redemption of mortgage deed by way of receipt shara executed by the said bank, marked as per Ex.D.18, she got produced power sanction letter along with demand notice of BESCOM authorities, marked as per Ex.D.19 to D.21 respectively. She got produced the notice for having purchased the meter permission, marked as per Ex.D.22 to D.24 respectively. She got produced 4 electricity receipts 26 O.S.No.6223/2013 marked together as Ex.D.25. She got produced the remand notice issued by BWSSB along with application filed with BWSSB and also Consumer Card and Receipt for having taken the water connection to the suit property marked as per Ex.D.26 to D.29 respectively. She got produced the bill and receipt mortgaged as per Ex.30 and 31 respectively. She got produced the photographs and C.D. along with cert under Section 65(B) of the Evidence Act, marked as per Ex.D.32(a) and (b) respectively. She got produced the I.T. Returns submitted by her husband before the Income Tax Authority, marked as per Ex.D.33 and she got produced the Syndicate Bank Passbook of her husband Sridhar M. as per Ex.D.34.
17. The learned Counsel for plaintiffs extensively cross-examined DW.1 by denying her testimony. However, DW.1 in her cross-examination denied the suggestion that under Ex.D.4 Sale Deed, she has not acquired any right, title or interest, much less possession over the suit property. Even though DW.1 during her cross-examination admitted the suggestion that the father of the plaintiffs Late.G.Seetharam had purchased the suit property under Ex.D.1 for valuable sale consideration amount and subsequently he died the death of an intestate without executing any testamentary document and 27 O.S.No.6223/2013 after his death all his four children including his wife defendant No.1 have succeeded the suit property. However, she has deposed that the defendant No.1 being the wife of Late.G.Seetharam sold the suit property in favour of defendant No.2 by executing a registered Sale Deed as per Ex.D.2 to which these plaintiffs along with defendant No.3 were consenting witnesses and the said Sale Deed was executed with consent of the plaintiffs and defendant No.3 and as such, the Sale Deed executed by defendant No.1 in favour of defendant No.2 is binding upon these plaintiffs. DW.1 in her cross-examination categorically stated that the second plaintiff is her classmate and before she purchased the suit property in the year 2002, she has discussed about the purchase of the suit property with plaintiff No.2 and even the plaintiff No.1 has informed her that they have already given their right over the suit property in favour of defendant No.2 by executing a Sale Deed and as such, she has no impediment to purchase the suit property. DW.1 has categorically stated that she after consultation with the plaintiffs and also after verification of the document and after satisfying herself with plaintiffs and defendant No.3 who have already consented for the Sale Deed of the defendant No.2, purchased the suit property for the valuable sale consideration amount. She deposed 28 O.S.No.6223/2013 that the plaintiff No.1 and 2 and defendant No.3 along with one Padmavathamma have made their signatures to Ex.D.2 and the defendant No.1 had affixed her thumb impression of Ex.D.2 and she can very well identified the signatures of the plaintiffs as well as defendant No.3 in Ex.D.2 in the Sale Deed. Even though a suggestion was made to DW.1 with the signatures found on Ex.D.2 is not that all these plaintiffs and they have not affixed their signature to Ex.D.2 as consenting witnesses.
18. The plaintiffs except cross-examining these facts which has been categorically denied by DW.1, nothing fruitful has been elicited from her mouth to disbelieve her testimony or to discard her evidence. Admittedly, the plaintiffs have not fully cross-examined DW.1 in spite of taking sufficient opportunities. This Court, by an order dated 20.7.2021 taken the further cross-examination of DW.1 as NIL as these plaintiffs even after taking sufficient opportunities have failed to further cross- examine DW.1. DW.1 got produced the original Sale Deed of the father of the plaintiffs by stating that defendant No.2 while at the time of executing the registered Sale Deed in her favour as per Ex.D.3 has delivered the original documents in her favour and she after verifying all these documents purchased the suit property under Ex.D.4. DW.1 got produced 29 O.S.No.6223/2013 the original Sale Deed of Ex.D.2 executed by defendant No.1 on 31.3.1995 marked as per Ex.D.2. the recitals of Ex.D.2 clearly proves that the plaintiffs as well as defendant No.3 being the sisters of defendant No.2 have consented for the Sale Deed and they being the consenting witnesses to the Sale Deed have made their signtures to the Sale Deed. The recitals of Ex.D.2 clearly disclose the signatures of the plaintiffs as well as the defendant No.3. The plaintiffs except denying the fact that they have not made their signatures to Ex.D.2, as the consenting witnesses has not chosen to disprove the same by adducing convincing evidence before this Court .
19. No doubt, PW.1 got produced certified copy of the complaint filed before the 10 th ACMM, Bangalore along with the order sheet of C.C.No.52482/2015 filed against the defendant Nos.1, 2 and 4 herein, marked as per Ex.P.7 to 9 respectively. However, PW.1 in her cross-examination admitted that the criminal case filed against defendant Nos.1, 2 and 4 was already been quashed by the Hon'ble High Court and accordingly the complaint was dismissed. Moreover, the plaintiffs without pleadings in respect of Ex.P.7 to P.9 documents produced 6 documents before this Court and when such being the case, these documents holds no merit. Moreover, the plaintiffs have filed the said complaint after filing of 30 O.S.No.6223/2013 the suit during the year 2013. When such being the case, the testimony of PW.1 that she is not the consenting witness to Ex.D.2 and even she has not affixed her signatures as consenting witness to Ex.D.2 along with plaintiff No.1 and defendant No.3 and those signatures are not that of them cannot be believed and accepted. The plaintiffs have not chosen to deny the testimony of DW.1 when she has categorically deposed that she has personally discussed about the sale transactions before she purchased the suit property from defendant No.2 and it is only after the plaintiffs have informed her that they have already released their right over the suit property in favour of defendant No.2 by executing a Sale Deed to which they are the consenting witnesses, she purchased the suit property under Ex.D.4. This fact adduced by DW.1 before this Court remained unchallenged. The evidence adduced by the plaintiffs clearly proves that on 13.3.1995 itself, the defendant No.1 with the consent of the plaintiffs as well as defendant No.3 sold the suit property to defendant No.2 who is none other than her own son for the valuable consideration amount and they have lawfully conveyed the title of the suit property in favour of defendant No.2 and subsequently she executed a Rectification Deed as per Ex.D.3 and later thereon, 31 O.S.No.6223/2013 the defendant No.2 being the absolute owner of the suit property has lawfully conveyed the title of the suit property in favour of defendant No.4 under a valid registered Sale Deed dated 28.11.2002. Ex.D.5 to D.34 documents clearly prove that DW.4 has lawfully purchased the suit property based on Ex.D.4 and on the basis of Sale Deed and her possession over the suit property, the khata of the suit property was lawfully mutated in her name by recognizing her as khatedar of the suit property and she is regularly paying tax payable to the suit property since from the date of purchase of suit property. Ex.D.17 document clearly proves that she has mortgaged the suit property for the loan and subsequently the loan was redeemed after paying the full loan amount which is evident in Ex.D.18 and later thereon she has also taken electricity connection and water connection to the suit property in her name and she is paying the electricity charges and water Cess to the suit property. These documents clearly prove that DW.1, after purchase of the suit property is exercising her possessory and proprietary right over the suit property and she has developed the suit property by investing huge amount. The plaintiffs, except adducing the oral evidence that the suit property is the joint family property of themselves and defendant Nos.1 to 3 in 32 O.S.No.6223/2013 this joint possession and enjoyment, without there being any partition among themselves till the date of filing of the suit and as such, they are entitled for a definite 1/4th share in the suit property have utterly failed to prove their case to the satisfaction of the court. The oral and documentary evidence produced by the plaintiffs is not sufficient to convince this Court about the case of the plaintiffs. Likewise, the written arguments filed by the learned Counsel for the plaintiffs is not convince this Court and it cannot be acceptable and it holds no merit. His argument that defendant No.4 has not explained as to why the defendant No.1 has sold the suit property in favour of her own son and whether defendant No.1 has received the sale consideration from the second defendant and actually for what purpose the sale consideration was utilized and why the second defendant has purchased the suit property from his own mother and whether the defendant No.1 is having independent and absolute right to alienate the suit property and all these questions were unanswered by defendant No.4 and when such being the case, defence taken by defendant No.4 cannot be acceptable and it holds no merits. Likewise, his arguments that by rejecting the defence taken by defendant No.4 in this suit, the suit of the plaintiffs has to be decreed as prayed in the plaint and also 33 O.S.No.6223/2013 not convince this Court and it holds no merit. However, the arguments canvassed by the learned Counsel for defendant No.4 that defendant No.4 is a bona-fide purchaser of the suit property and she purchased the suit property for valuable sale consideration amount and based on Ex.D.4 Sale Deed she became the absolute owner of the suit property is fully convince this Court. The judgments relied on by the learned Counsel for defendant No.4 in support of his arguments reported in ;
1. AIR 1955 MADRAS 292 Boologam Naidu Vs. Jagannath and Others.
2. (2009) 3 AIR KARNATAKA HCR 130 Shanthappa & Others Vs. Channabasavaiah & Others.
3. AIR 1966 SC 470 MVS Manikayala Roa Vs. M. Narasimhaswami & Others
4. AIR 2000 Karnataka 374 K.M. Smaiah Vs. Secretary, Government of Karnataka.
5. AIR 2011 SC 3590 Khatri Hotels Private Ltd., Vs. Union of India and another.
6. AIR 1986 SC 1921 Bai Reva Vs. Bai Jadav.
7. AIR 2002 SC 606 Darshan Singh v. Gujjar Singh.
8. AIR 1995 SC 1789 Vidya Devi vs. Prem Prakash.
34O.S.No.6223/2013
9. AIR 1982 SC 760 M/s. Kalloomal Tapeswari Prasad Vs. The CIT, Kanpur.
10. AIR 1953 Mysore 22 Kenchegowda vs. P. Channaiya.
11. AIR 1981 Karnataka 93 Narayanaswamy Naidu Vs. Deveeramma
12. AIR 1962 SC 847 Jumma Masjid vs. Kodimaniandra Devaiah
13. AIR 1962 Kerala 313 Ramaswamy Pattamali Vs. Lakshmi
14. AIR 1962 Calcutta 12 Panchanan Pai vs. Nirode Kumar Biswas
15. AIR 1980 Orissa 95 Adinarayana Patra vs. Ramahari Patra
16. AIR 1989 SC 1269 Chandrakantaben J. Modi vs. Vadilal Bapalal Modi.
17. ILR 1998 Karnataka 485 Shobha Sadanand Ramanakatti vs. Vasantibai.
18. AIR 2004 SC 1206 Krishna Pillai Rajasekharan Nair vs. Padmanabha Pillai.
19. Judgment of Hon'ble High Court of Karnataka dated 29.5.2008 in RSA No.394/2005 between Y.S.Gurunanjappa vs. Smt. Sunanda are applicable to the facts of the present case on hand and they are helpful to the defence taken by defendant No.4. However, the plaintiffs have failed to prove issue No.1 in their favour. Hence, I answer Issue No.1 in the Negative.
35O.S.No.6223/2013
20. Issue No.2: The defendant No.4 has taken up a specific defence that the plaintiffs have not properly valued the suit for the purpose of court fee and even they have not paid the proper Court fee on the plaint and on this ground itself, the suit of the plaintiffs has to be dismissed. The defendant No.4, in order to prove this issue filed her affidavit, wherein she has categorically deposed that the plaintiffs as well as defendant No.3 along with her mother defendant No.1 sold the suit property in favour of defendant No.2 under a Sale Deed dated 31.3.1995 wherein the plaintiffs are the consenting witnesses and since from the date of purchase of the suit property, the defendant No.2 was the absolute owner in possession and enjoyment of the suit property and subsequently thereto he sold the suit property in her favour under a Sale Deed dated 28.11.2002 for the valuable sale consideration amount and delivered the vacant possession of te suit property and since from the date of purchase of the suit property, she is in possession and enjoyment of the same and she developed the suit property by investing huge amount. DW.1 in order to prove her defence got produced Ex.D.4 to D.34 documents which clearly proves that DW.1 is in possession and enjoyment of the suit property since from the date of purchase of the suit property under Ex.D.4 Sale 36 O.S.No.6223/2013 Deed. However, these plaintiffs have valued the suit for the purpose of court fee under Section 35(2) of KCF & SV Act and paid the fixed court fee of Rs.200/- each and accordingly they have valued the suit and for the relief of declaration paid the fixed Court fee of Rs.25/- each and accordingly they have paid the court fee of Rs.450/-. The evidence adduced before the court by plaintiffs as well as DW.1 clearly proves that the plaintiffs are not in joint possession of the suit property as on date of filing of the suit. The evidence adduced by DW.1 clearly proves that since from the year 2002, based on Ex.D.4 Sale Deed, she is in lawful possession and enjoyment of the suit property and she has developed the suit property by investing huge amount. Her evidence clearly proves that the plaintiffs are not in joint possession of suit property along with defendants. When such being the case, the plaintiffs ought to have valued the suit under Section 35(1) of KCF & SV Act and they have to pay the Court fee on the market value of the suit property. The defendant No.1 by adducing the evidence before this Court proved that plaintiffs have not properly valued the suit and they have not paid the Court fee on the plaint. Therefore, I answer this issue in the Affirmative.
37O.S.No.6223/2013
21. Issue No.3: The defendant No.4 has taken up specific defence that suit of the plaintiffs is barred by limitation. The defendant No.4, in order to prove her defence has got examined herself before this Court as DW.1, wherein she has categorically deposed that before purchase of suit property she has discussed about the sale transaction with the plaintiffs as plaintiff No.2 is her classmate and both the plaintiffs have informed her that they have already relinquished their rights in favour of defendant No.2 and even a Sale Deed was executed in favour of defendant No.1 on 31.3.1995 itself to which they are the consenting witnesses. She deposed that before purchase of the suit property, the plaintiffs were aware of the sale transaction and even the plaintiffs are the consenting witnesses to the Sale Deed dated 31.3.1995 executed in favour of defendant No.2 and when such being the case, the suit filed by the plaintiffs after long lapse of delay is not maintainable. The evidence adduced by DW.1 before this Court that second plaintiff is her classmate and she has discussed with the plaintiffs before purchase of the suit property is remained unchallenged. Moreover, this Court, while answering issue No.1 has already come to a conclusion that plaintiffs as well as defendant No.3 were the consenting witnesses to Ex.D.2 and they 38 O.S.No.6223/2013 have made their signatures to Ex.D.2. Admittedly, the plaintiffs till the date of filing of the suit, except denying their signatures found on Ex.D.2, have not initiated any proceedings against the defendant No.1 and defendant No.2. No doubt, PW.1 got produced Ex.P.7 to P.9 documents before this Court to prove that subsequently after they filed this suit, tey have filed a criminal complaint against the defendant Nos.1, 2 and 4 before the 10th ACMM, Bangalore. However, the evidence adduced by DW.1 before this Court clearly proves that the plaintiffs are the consenting witnesses to Ex.D.2 and they made their signatures to Ex.D.2 wherein they have lawfully conveyed the title of the suit property in favour of defendant No.2. The plaintiffs, after defendant No.4 has developed the suit property by investing huge amount, have filed this suit only after thought by claiming their share in the suit property which is hopelessly barred by limitation. The evidence adduced by the defendant No.4 clearly proves that the suit filed by the plaintiffs is barred by limitation. Hence, I answer this issue in the Affirmative.
22. Issue No.4: This Court while answering Issue No.1 has already come to conclusion that suit schedule property is not the joint family property of plaintiffs and defendant Nos.1 to 3 in their joint possession and enjoyment as on the date of filing of 39 O.S.No.6223/2013 the suit. This Court, while answering Issue No.1 has already come to the conclusion that defendant No.1 in consultation with plaintiffs and defendant No.3 with their consent sold the suit property in favour of defendant No.2 by executing a registered Sale Deed dated 31.3.1995 by conveying the title of the suit property in favour of defendant No.2 for valuable sale consideration amount and in turn, the defendant No.2 sold the suit property in favour of defendant No.4 by executing a registered Sale Deed dated 28.11.2002 and accordingly he has lawfully conveyed the title of the suit property in favour of defendant No.4 and based on the Sale Deed, the khata of the suit property was mutated in the name of defendant No.4 and she is in lawful possession and enjoyment over the suit property as on date of filing of the suit, as the absolute owner. When such being the case, the plaintiffs are not entitled for any relief sought in the plaint. Hence, I answer Issue No.4 in the Negative.
23. Issue No.5:For the aforesaid reasons,this court proceeds to pass the following:
OR D E R The Suit of the Plaintiffs is hereby dismissed with exemplary cost of Rs.5,000/- to the defendant No.4.40
O.S.No.6223/2013 Further, the plaintiffs are directed to pay deficit Court fee along with fresh Valuation Slip by taking into consideration the market value of the suit property under Section 35(1) of K.C.F. & S.V. Act within 7 days from the date of this Judgment.
Office is directed to collect the deficit Court fee with fresh valuation slip before drawing the decree.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in Open Court on this the 16th day of November, 2021.) (ISHRATH JAHAN ARA ) III Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the Plaintiffs:
P.W.1 - S Prameela.
List of documents exhibited for the Plaintiffs:
Ex.P1 - C/c. Sale Deed dated 12.8.1971 Ex.P2 - C/c. Sale Deed dated 31.3.1995. Ex.P3 - C/c. Rectification Deed dated 17.9.2002 41 O.S.No.6223/2013 Ex.P4,5 - Encumbrance Certificates Ex.P6 - C/c. of Sale Deed dated 28.11.2002 Ex.P.7 - C/c. order sheet of C.C.No.52428/2015 Ex.P.8 - C/c. of the complaint in PCR No.50948/13.
Ex.P.9 - List of the documents in the said case.
List of witnesses examined for the defendants :
DW.1- Prameela N List of documents exhibited for the Defendants:
Ex.D.1- Original Sale Deed dated 12.8.1971 Ex.D.2- Original Sale Deed dated 31.3.1995 Ex.D.3- Rectification Deed 17.9.2002. Ex.D.4- Sale Deed dated 28.11.2002. Ex.D.5- Endorsement of City Municipal Corporation.
Ex.D.6- Tax Demand Notice.
Ex.D.7- Uttara Patra.
Ex.D.8- Khata Certificate.
Ex.D.9- Khata Certificate.
Ex.D.10- Khata Certificate.
Ex.D.11- Demand Register Extract.
Ex.D.12- Demand Register Extract.
Ex.D.13- Demand Register Extract.
Ex.D.14- Demand Register Extract.
Ex.D.15- Tax Paid Receipts.
Ex.D.16 13 Encumbrance Certificates.
Ex.D.17 Deed of Equitable Mortgage.
Ex.D.18 Receipt Shara.
Ex.D.19- Permission Sanction Letter-BESCOM
Ex.D.20- Demand Notice of BESCOM
Ex.D.21- Permission Letter.
Ex.D.22- Tax invoice
Ex.D.23- Permission Letter
Ex.D.24- Letter
Ex.D.25- 4 Receipts.
42
O.S.No.6223/2013
Ex.D.26- Demand Notice BWSSB
Ex.D.27- Application Notice of BWSSB Ex.D.28- Consumer Card.
Ex.D.29- Receipt Ex.D.30- Bill.
Ex.D.31- Receipt.
Ex.D.32- 2 photos.
Ex.D.32(a)- CD.
Ex.D.32(b)- Certification under Section 65(B) of Evidence Act.
Ex.D.33- I.T. Return (3) Ex.D.34- Pass Book.
(ISHRATH JAHAN ARA ) III Addl. City Civil & Sessions Judge, Bengaluru.
43
O.S.No.6223/2013
16.11.2021
Judgment pronounced in the open
Court. The operative portion of the same is as under: (vide separate judgment) O R DE R The Suit of the Plaintiffs is hereby dismissed with exemplary cost of Rs.5,000/- to the defendant No.4.
Further, the plaintiffs are directed to pay deficit Court fee along with fresh Valuation Slip by taking into consideration the market value of the suit property under Section 35(1) of K.C.F. & S.V. Act within 7 days from the date of this Judgment.
Office is directed to collect the deficit Court fee with fresh valuation slip before drawing the decree.
Draw decree accordingly.
(ISHRATH JAHAN ARA) III Addl. City Civil & Sessions Judge, Bengaluru.