Bangalore District Court
Chandru R vs V.Padma on 18 March, 2025
KABC0A0035422014
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 18th day of March, 2025.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.B.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.26445/2014
PLAINTIFFS : 1. Chandru R.,
Aged about 35 years,
S/o. Late V. Ramachandra and
Grand Son of late G. Venkataiah.
2. Arun R.,
Aged about 30 years,
S/o. Late V. Ramachandra and
Grand Son of late G. Venkataiah
Both plaintiffs No.1 and 2 are
Residing at No.1959/1, Behind
V.V. Mohalla, K.R. Mohalla,
Mysore - 570 004.
3. Smt. Hema Jayashekar,
Aged about 41 years,
D/o. Late Ramachandra,
Cont'd..
2 O.S.No.26445/2014
Grand daughter of late G. Venkataiah
Residing at No.6, "Shantha Nilaya",
2nd Main Road, Vidyaranyapuram,
Mysore - 570 008.
(By Sri S. Kalyan Basavaraj, Advocate)
-VERSUS-
DEFENDANTS : 1. Smt. V. Padma,
W/o. Narayana Setty,
D/o. Late G. Venkataiah,
Aged about 61 years,
Residing at No.1483, Sri Krishna
Devaraya Road, Pipe Line,
Vijayanagar, Bangalore-560 040.
2. Smt. Y.G. Suma,
Aged about 40 years,
D/o. V. Mahalakshmi and
Grand daughter of late G. Venkataiah.
3. Smt. Y.G. Shamala,
Aged about 38 years,
D/o. V. Mahalakshmi and
Grand daughter of late G. Venkataiah.
The above 2 and 3 are residing at
Thigalarapalya, near Government
School, Peenya II Stage,
Bangalore - 560 058.
4. Smt. V. Vedhavathi,
Aged about 54 years,
D/o. Late G. Venkataiah and
W/o. Lokesh,
Residing at No.1210, 2nd Main
Road, Vijayanagar,
Bangalore - 560 040.
5. V. Govindaraju,
S/o. Late G. Venkataiah,
Aged about 53 years,
Residing at No.1210, 2nd Main
Road, Vijayanagar,
Bangalore - 560 040.
3 O.S.No.26445/2014
And also
Residing at No.55, 1st Cross,
Venkateshwara Colony,
New Thippasandra,
Bangalore - 560 075.
6. Smt. Srilakshmi,
Aged about 45 years,
W/o. Late V. Srinivasa.
7. Darshan,
Aged about 18 years,
W/o. Late V. Srinivasa.
8. Master. S. Danush,
Aged about 13 years,
S/o. Late V. Srinivasa,
Since Minor - being
Represented by his mother and
Natural Guardian
Smt. R. Srilakshmi.
The above 6 to 8 are residing
at No.1210, 2nd Main Road,
Vijayanagar, Bangalore - 560 040.
9. Smt. V. Latha,
D/o. Late G. Venkataiah and
W/o. Y.N. Srinivasa,
Aged about 47 years,
Residing at No.134, 4th Main
Road, Srinivasanagar,
Sunkadadatte, Bangalore - 560 091.
10. Smt. Y.G. Kumari,
Aged about 35 years,
D/o. V. Mahalakshmi and
Grand daughter of
late G. Venkataiah.
11. Y.G. Ravi,
Aged about 34 years,
S/o. V. Mahalakshmi and
Grand daughter of
late G. Venkataiah,
4 O.S.No.26445/2014
10 and 11 are residing at
Thigalarapalya, near
Government School, Peenya
II Stage, Bangalore - 560 058.
(D.1, 4, 6 to 9 by Sri P.S.K.,
D.2, 3, 10, 11 by Sri N.S.S.,
D.5 by Sri B.V.P., advocate)
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Date of Institution of the Suit : 15-10-2014
Nature of the Suit (Suit on : Partition Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 14-06-2019
of recording of the evidence
Date on which the Judgment : 18-03-2025
was pronounced
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Year/s Month/s Day/s
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Total duration : 10years, 05months, 3 days.
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(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
JUDGMENT
This suit is instituted by the plaintiffs against the defendants for relief of declaration to declare, judgment and decree in O.S.No.27334/2009 obtained collusively by defendant No.5 and deceased Srinivasis is not binding on plaintiffs to the extent of their share in suit property. The plaintiffs have also sought for relief of 5 O.S.No.26445/2014 partition and separate possession of their 1/7th joint share in suit property by metes and bounds and grant of such other reliefs.
2. The case of the plaintiffs in brief is as under:-
That, suit schedule property was allotted to G. Venkataiah by the then CITB and he was put in possession of property on 07.08.1967. Smt. Narayanamm is wife of G. Venkataiah. Defendant No.1, deceased V. Ramachandra, deceased Smt. V. Mahalakshmi, defendant No.4, defendant No.5, deceased Srinivas and defendant No.9 are children of deceased G. Venkataiah. Plaintiffs No.1 to 3 are heirs of deceased V. Ramachandra. Defendants No.2, 3, 10 and 11 are heirs of deceased Smt. V. Mahalakhmi.
Defendants No.6 to 8 are heirs of deceased V. Srinivas. G. Venkataiah died instate. After death of G. Venkataiah, by virtue of sale deed dated 12.07.1989, suit property was sold by BDA in favour of Smt. Narayanamma. Smt. Narayanamma died on 07.02.1999 leaving behind plaintiffs and defendants to succeed her 6 O.S.No.26445/2014 estate. The defendants No.5 and husband of defendant No.6 have colluded with each other and filed suit in O.S.No.27334/2009, thereby obtained compromise decree without impleading plaintiffs as parties to said suit. Said collusive decree not binding on plaintiffs in respect of their share in suit property. Defendants No.5 and defendant No.6 based on collusive decree are trying to alienate suit property in favour to 3rd persons. After coming to know about said collusive decree, plaintiffs have demanded defendants No.5 and 6 to effect partition in suit property and to allot their legitimate share, defendants No.5 and 6 denied demand of plaintiffs. On these pleadings, plaintiffs have prayed to decree suit as prayed in plaint.
3. In response to the service of suit summons, defendants have tendered their appearance before the court through their respective counsels and contested the case. The defendants have filed written statement.
4. The contents of written statement of defendants No.1 and 9 in brief are as under:- 7 O.S.No.26445/2014
The suit filed by plaintiffs is maintainable in law and on facts. Originally suit property was allotted to G. Venkataiah and he paid entire sale consideration to CITB and he was put in possession of schedule property on 07.08.1965. Thereafter, out of his own funds, he constructed residential premises over suit property. Thereafter, BDA executed sale deed dated 12.07.1989 in favour of Smt. Narayanamma. Smt. Narayanamma obtained sale deed on behalf of all legal heirs of G. Venkataiah. Smt. Narayanamma died on 07.02.1999. These defendants have received summons in O.S.No.26445/2014 and then only come to know that defendant No.5 created alleged release deed dated 09.08.2008 by misrepresentation and coercion.
Thereafter, these defendants have approached defendant No.5 and requested him to cancel release deed and allot their share in suit property. Further, on verification, it found that defendant No.5 and deceased Srinivas with intention to defraud rights of legal heirs of G. Venkataiah have created Will dated 05.12.1998 and filed suit in O.S.No.27334/2009 and obtained collusive compromise decree. These defendants issued legal 8 O.S.No.26445/2014 notice to defendant No.5 asking him to cancel release deed dated 09.08.2012. When defendant No.5 not come forward to cancel release deed, defendant No.9 filed suit in O.S.No.6959/2015 against defendant No.5. On these contentions, these defendants have requested court to hold alleged compromise in O.S.No.27334/2009 not binding on these defendants and further sought for their share in suit property.
5. The contents of written statement of defendants No.2 to 4 in brief are as under:-
It is admitted by defendants that, suit property originally allotted to G. Venkataiah and he was in possession of suit property. Further it is admitted, G. Venkataiah had paid entire sale consideration to CITB. G. Venkataiah died intestate leaving behind his wife, four daughters and three sons. After death of G. Venkataiah, Smt. Narayanamma had approached BDA and with consent of her daughters and sons got sale deed dated 12.07.1989 from BDA and transferred khata in respect of suit property in her name. Thereafter, Smt. Narayanamma also died intestate. On verification of 9 O.S.No.26445/2014 documents, these defendants come to know, defendant No.5 and deceased Srinivas have created fraudulent Will and filed suit in O.S.No.27334/2009 and obtained compromise decree. Said judgment obtained by defendant No.5 and deceased Srinivas not binding these defendants. On these contentions, these defendants have requested court to hold alleged compromise in O.S.No.27334/2009 not binding on these defendants and further sought for their share in suit property.
6. The contents of written statement of defendant No.5 in brief are as under:-
It is contended that, Smt. Narayanamma had executed registered Will dated 05.12.1998 and thereby bequeathed suit property in favour of defendant No.5 and deceased Srinivas equally. Based on said Will, compromise petition was filed in O.S.No.27334/2009 and decree was passed. On the basis of decree, defendant No.5 and deceased Srinivas become owners of suit property to an extent of 50% each. The defendants No.1, 3 and 9 are well aware about O.S.No.27334/2009 and after final decree was drawn, 10 O.S.No.26445/2014 same was registered. Defendants No.1, 3 and 9 have voluntarily executed release deed in favour of defendant No.5 on 09.08.2012 by releasing their 1/7th share in suit property. As such, these defendants No.1, 3 and 9 have no share in suit property. Plaintiff No.3 settled with her husband in Gulf country. Plaintiffs No.1 and 2 have forged signature of plaintiff No.3 and filed vakalath. Defendants No.10 and 11 are strangers, they are not biological children of deceased Smt. V. Mahalakshmi. The plaintiffs and other defendants are not entitled for any share in suit property. On these grounds, the defendant No.5 has requested to dismiss suit with costs.
7. The contents of written statement of defendants No.6 in brief are as under:-
The suit filed by plaintiffs is not maintainable in either law or on facts. Smt. Narayanamm become absolute owner of suit property by virtue of registered sale deed dated 12.07.1989. Smt. Narayanamm bequeathed suit property under Will dated 05.12.1998 to defendant No.5 and V. Srinivas, who is husband of 11 O.S.No.26445/2014 defendant No.6 and father of defendants No.7 and 8. Half portion of suit property belonged to deceased V. Srinivas by virtue of final decree in O.S.No.27334/2009. Late V. Srinivas died intestate on 12.12.2013. The defendants No.6 to 8 being legal heirs of deceased V. Srinivas become owners of western half portion of suit property. Defendant No.5 in collusion with plaintiffs filed present false suit. On these grounds, the defendant No.6 has requested to dismiss suit with costs.
8. On the basis of above pleadings of both parties, this court has framed the following :-
ISSUES
1. Whether the plaintiffs and defendant No.1 to 4 and 9 prove that the plaint schedule property is the joint property of the plaintiffs and the defendants?
2. Whether the plaintiffs and defendants No.1 to 4 and 9 prove that they are entitle for 1/7th share each in the plaint schedule property?
3. Whether the plaintiffs and defendants Nos.1 to 4 and 9 prove that the 12 O.S.No.26445/2014 compromise decree in O.S. No.27334/2009 is not binding on them?
4. Whether the defendants No.5 to 8
prove that Smt. Narayanamma had executed a Will dated 05.12.1998 bequeathing the property to the defendant No.5 and V. Srinivasa?
5. Whether the defendant Nos.5 to 8 prove that the plaintiffs have no right over the plaint schedule property?
6. Whether the plaintiffs and defendants Nos.1 to 4 and 9 are entitled for the relief of declaration and partition and separate possession of their share?
7. What order?
ADDITIONAL ISSUES DATED 02.11.2018
1. Whether defendant No.5 proves that the defendant Nos.1 to 4 and 9 have released their right in the plaint schedule property in favour of the defendant No.5 by executing the release deed on 09.08.2012 and therefore they have no share in the plaint schedule property?
13 O.S.No.26445/2014
ADDITIONAL ISSUES DATED 19.11.2022
1. Whether defendant No.5 proves that defendant No.1, 3 and 9 executed release deed in his favour as claimed in para 4B of additional written statement?
2. Whether defendants No.10 and 11 proves that, they are not children of Mahalakshmi?
3. Whether defendants No.10 and 11 proves that, they are not children of Mahalakshmi?
4. What order or decree?
ADDITIONAL ISSUES DATED 06.02.2025
5. Whether defendant No.5 proves that suit filed plaintiff is barred by law of limitation?
9. To substantiate the case of plaintiffs, plaintiff No.2 - Arun R., examined himself as PW1 and produced in 17 documents as Exs.P1 to Ex.P.17. The defendant No.9 examined as D.W.1, defendant No.10 examined as D.W.2, defendant No.5 examined as D.W.3, defendant No.6 examined as D.W.6 and attesting witnesses as 14 O.S.No.26445/2014 D.W.4 and D.W.5 and produced in 21 documents as Exs.D.1 to D.21.
10. I have heard the arguments of learned counsel for plaintiffs and learned counsel for defendant No.2 and I have perused the case records.
11. My answers to the above issues are as under-
ISSUE No.1 - In the affirmative;
ISSUE No.2 - In the negative;
ISSUE No.3 - In the affirmative;
ISSUE No.4 - In the negative;
ISSUE No.5 - In the negative;
ISSUE No.6 - Partly in the affirmative; Add.ISSUE No.1 - In the negative;
dated 02.11.2018 Add.ISSUE No.1 - In the negative;
dated 19.11.2022 Add.ISSUE No.2 - In the negative;
dated 19.11.2022 Add.ISSUE No.3 - In the affirmative;
dated 19.11.2022 Add.ISSUE No.5 - In the negative;
dated 06.02.2025 ISSUE No.7 - As per final order, Add.ISSUE No.4 for the following -
dated 19.11.2022 15 O.S.No.26445/2014 REASONS
12. ISSUES No.1 :- On proper appreciation of pleadings of parties and their evidence on record, so far as relationship of plaintiffs and defendants No.1 to 11 with that of deceased G. Venkataiah and Smt. Narayanamma, absolutely there is no dispute. Defendant No.1-Smt. V. Padma, deceased V. Ramachandra, deceased Smt. V. Mahalakshmi, defendant No.4- Smt. V. Vehavathi, defendant No.5- V. Govindaraju, deceased V. Srinivas and defendants No.9- Smt. V. Latha are children of late G.Venkataiah and Smt. Narayanamma. Further, it is also not in dispute that, plaintiffs No.1 to 3 are children of late Ramachandra, defendants No.2, 3, 10 and 11 are legal heirs of deceased Smt. Mahalakshmi and defendants No.6 to 8 are legal heirs of deceased V. Srinivas.
13. In schedule to plaint, suit property mentioned with all necessary descriptions such as property number, measurement and boundaries. Plaintiffs, defendants No.1, 4 and 9 to 11 have claimed suit schedule property is a joint family property of plaintiffs 16 O.S.No.26445/2014 and defendants. On the other hand, contesting defendants No.5 to 8 have contended, suit property is absolute property of deceased Smt. Narayanamma. Further, it is no more in dispute that, father of plaintiffs V. Ramachandra died on 23.01.1991. Likewise, Smt. Narayanamma died on 07.02.1999. Death certificate of Smt. Narayanamma has been produced as per Ex.P.3.
14. Certified copy of sale deed dated 12.07.1999 in respect of suit property has been produced as per Ex.P.1. Same document also produced by contesting defendants as per Ex.D.1. On perusal of contents of Ex.P.1 or Ex.D.1, it is mentioned that, sale deed pertaining to suit property was executed in favour of Smt. Narayanamm. Ex.P.2 is khata extract dated 01.08.2012 wherein in name of Smt. Narayanamma shown as owner of suit property. Contesting defendants No.5 to 8 have contended that, Smt. Narayanamma being absolute owner of suit property had executed a registered Will dated 05.12.1998 and bequeathed suit property in favour of defendant No.5- V. Govindaraju and deceased V. Srinivas equally.
17 O.S.No.26445/2014
15. In the light of respective contentions of plaintiffs and contesting defendants as referred above, material point that would arise for consideration would be, whether Smt. Narayanamm got absolute right over suit property so as to execute registered Will as per Ex.D.7 and thereby bequeath suit property equally in favour of defendant No.5 herein and deceased Srinivas. Plaintiffs have also produced certified copy of Will dated 05.12.1998 as per Ex.P.14.
16. On careful perusal of contents of Ex.D.7, it is forthcoming that, executant Smt. Narayanamma had revoked and canceled earlier Will dated 28.07.1990 and thereby executed Will in respect of suit property in favour of defendant No.5 and deceased Srinivas. In Ex.D.7, Smt. Narayanamma has claimed that, she is absolute owner and in possession of suit property. It is further mentioned, all her daughters have been given in marriage and they are living with their husband and sufficient gifts were given to them at the time of their marriage. As such they have not given any property under Will.
18 O.S.No.26445/2014
17. Smt. Narayanamma being executant of Ex.D.7 has specifically claimed she is absolute owner of suit schedule property. On the other hand, it is specifically pleaded and same is deposed by P.W.1 before court that, suit property is joint property of plaintiffs and defendants and suit property was allotted by CITB in favour of G. Venkataiah. In order to substantiate same, plaintiffs have much relied on Ex.P.15 which is lease- cum-sale agreement dated 03.05.1965. On careful perusal of contents of said document, suit property was allotted to G. Venkataiah under lease-cum-sale agreement with all necessary conditions as mentioned in said document. Further it is clearly mentioned in said document that, G. Venkataiah is lessee/purchaser of suit property.
18. It is evident from evidence of defendant No.5, who examined as D.W.3, wherein he has specifically stated his mother Smt Narayanamma was house wife. D.W.6 who is Smt. Srilakshmi, who is wife of late Srinivasa in her cross-examination has deposed that, there is no documents produced before court to show, Smt. Narayanamma had paid amount in respect of suit 19 O.S.No.26445/2014 property to CITB. As per evidence of these contesting defendants as referred above, fact remains that, Smt. Narayanamma had no independent income of her own. As such, questioned of paying amount in respect of suit property to CITB by Smt. Narayanamma out of her own income does not arise.
19. It is important note here that, contesting defendants have produced release deed dated 09.08.2012 executed by Smt. V. Padma, Smt. Vedhavathi, Smt. V. Latha in favour of defendant No.5 herein as per Ex.D.6. In said document, it clearly mentioned that, suit property was allotted by CITB in favour of G. Venkataiah and he was put in possession and same on 17.08.1964. It is also clearly mentioned, subsequent to said allotment and possession, said G. Venkataiah out of his founds had constructed residential premises thereof. In page - 3 of Ex.D.6 it is clearly mentioned, subsequent to death of G. Venkataiah is wife Smt. Narayanamma had approached BDA and with consent of her children suit property allotted in her name as per order dated 10.02.1988. It is fact that, defendant No.5 being one of 20 O.S.No.26445/2014 parties to Ex.D.6, now he cannot turn around and say suit property is absolute property of deceased Smt. Narayanamma. Such contentions as taken up by defendant No.5 is very much contrary to his own document under which he is claiming right over suit property.
20. On combined appreciation of contents of sale deed as per Ex.P.1 or Ex.D.1, lease-cum-sale deed as per Ex.P.15 and contents of Ex.D.6, it can safely concluded that, earlier suit property allotted to G. Venkataiah by CITB and after his death, based on consent of all children of Smt. Narayanamma she approached BDA and considering her request, suit property was allotted to Smt. Narayanamma and sale deed as per Ex.P.1 or Ex.D.1 by concerned authority executed in favour of Smt. Narayanamma
21. As and when earlier suit property was allotted to G. Venkataiah and later on it was allotted to Smt. Narayanamma which is subsequent to death of G. Venkataiah, Smt. Narayanamm cannot claim her absolute right over suit property. There is sufficient 21 O.S.No.26445/2014 material on records to come to right and proper conclusion that, suit property is a joint family property of plaintiffs and defendants. Hence, I answer Issue No.1 in the affirmative.
22. ISSUES NO.2 AND 3 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
23. The defendants No.5 to 8 rests their claim of suit property mainly based on Ex.D.7 which is registered Will dated 05.12.1998 executed by Smt. Narayanamma in favour of defendant No.5 and deceased Srinivas. As already discussed, Smt. Narayanamma in Will has claimed suit schedule property is her absolute property. Contents of Ex.D.7 wherein Smt. Narayanamma had claimed her absolute right over suit property is very much contrary to contents of lease-cum-sale agreement as per Ex.P.15, which was executed by CITB in favour of G. Venkataiah. 22 O.S.No.26445/2014 It is evident from records that, defendant No.5 herein and deceased Srinivas claiming their right over suit property under Ex.D.7 have filed suit in O.S.No.27334/2009.
24. Ex.P.4 is certified copy of order sheet in O.S.No.27334/2009. Ex.P.5 is certified copy of plaint in O.S.No.27334/2009. Exs.P.6 and P.7 are certified copies of written statement and evidence of defendant No.7 in said suit. Exs.D.2 to D.4 are certified copies of compromise, compromise decree and final decree in O.S.No.27334/2009.
25. As already discussed, suit schedule property is not absolute property of Smt. Narayanamma. Earlier to execution of sale deed in favour of Smt. Narayanamma, as per Ex.P.15 lease-cum-sale agreement was executed in favour of G. Venkataiah with certain conditions. After death of G. Venkataiah, sale deed was executed as per Ex.D.1 in favour of Smt. Narayanamma. Circumstances under which sale deed was executed in respect of suit property as per Ex.P.1 in favour of Smt. Narayanamma it leads to irresistible conclusion that, 23 O.S.No.26445/2014 suit property is not an absolute property of Smt. Narayanamma and it is joint family property of plaintiffs and defendants. Smt. Narayanamma was not absolute owner of suit schedule property.
26. On careful perusal of documents pertaining to O.S.No.27334/2009 as referred above, it is only defendant No.5 herein and deceased Srinivas were parties to said suit. Other legal heirs of G. Venkataiah and Smt. Narayanamma are not parties to suit who got every right to challenge legality or otherwise of alleged Will executed by Smt. Narayanamma in favour of defendant No.5 and deceased Srinivas. Defendant No.5 herein being plaintiff in O.S.No.27334/2009 consciously and intentionally not made other legal heirs of G. Venkataiah and Smt. Narayanamma as parties to said suit. Onother interesting thing is that, knowing fully well said suit is based on Will, plaintiffs and defendants therein have colluded with each other and entered into compromise. It is important to note here that, when claim of parties is mainly based on Will, which is always disputed document, court would not have accepted 24 O.S.No.26445/2014 compromise entered between parties to suit. Court in said suit would have directed parties go for trial.
27. In order to establishes execution of Will, contesting defendants have examined by person name K. Gandhi, who is son of late A.K. Kannan, who is one of the attesting witnesses of Will as per Ex.D.7 as D.W.5 before court. D.W.5 in his evidence before court has deposed, his father A.K. Kannan died on 01.04.2012. Witnesses identified signatures of his father on Ex.D.7 which is marked as Ex.D.7(a).
28. Based material on record, it is already concluded that, Smt. Narayanamm had no absolute right to executed Will. As such, question of defendant No.5 and deceased Srinivas claiming their right over suit property based on compromise in O.S. No.27334/2009 does not arises. Moreover, present plaintiff, defendants No.1 to 4 and 9 are not parties to suit in O.S.No.27334/2009. As such, said compromise entered between defendant No.5 herein and deceased Srinivas is not binding on plaintiffs and defendants No.1 to 4, 9 to 11. Hence, Issues No.3 in the affirmative and Issue No.4 in the negative.
25 O.S.No.26445/2014
29. ISSUE NO.5 :- As already discussed, relationship of plaintiffs and defendants with that of deceased G. Venkataiah and Smt. Narayanamma is not seriously disputed. Further, it is not seriously disputed, plaintiffs are heirs of deceased V. Ramachandra. It is fact that, suit property was allotted to G. Venkataiah by CITB. Suit schedule property is not absolute property of Smt. Narayanamma. She had no right to execute alleged Will as per Ex.D.7. Further, defendant No.5 herein and deceased Srinivas have colluded with each other and filed suit in O.S.No.27334/2009 and got compromised. Plaintiffs are not parties to said suit. Under these circumstances, contesting defendants No.5 to 8 cannot be permitted to contend, plaintiffs have not right in suit schedule property. Hence, I answer issue No.5 in the negative.
30. ADDITIONAL ISSUE NO.1 DATED 02.11.2018 AND ADDITIONAL ISSUE NO.1 DATED 19.11.2022 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for 26 O.S.No.26445/2014 convenience sake, both issues are taken together for common discussion.
31. Contesting defendants have contended that, defendants No.1, 4 and 9 have released their right in plaint schedule property in favour of defendant No.5 by executing release deed dated 09.08.2012. As such, they have no share in suit schedule property. While cross- examination of D.W.1 it is suggested, these defendants have executed release deed in favour of defendant No.5 same is denied as false. Ex.D.6 is release deed dated 09.08.2012.
32. It is worth to note her that, by the time said release deed said to have been executed by executants admittedly, suit filed by defendant No.5 and deceased Srinivas in O.S.No.27334/2009 was pending. As per contents of Ex.D.6, it is mentioned, original suit property was allotted to G. Venkataiah. Contrary to contents of Ex.D.6 it was pleaded by defendant No.5 being plaintiff in O.S.No.27334/2009 that, suit schedule property is absolute property of Smt. Narayanamm. In Ex.D.7, it is mentioned sufficient gifts 27 O.S.No.26445/2014 given to daughters by Smt. Narayanamma at the time of their marriage. Contrary to the same, in release deed it is mentioned, these executant have right over suit property, they have released their right in suit property in favour of defendant No.5. Taking into note of these facts, an inference can be drawn that, defendant No.5 by misrepresentation got executed release deed as per Ex.D.6 in his favour.
33. Further more, it is fact that, defendant No.9 herein being plaintiff had filed suit in O.S.No.6959/2015 against defendant No.5 and others for relief of declaration to declare, release deed dated 09.08.2012 executed in favour of defendant No.5 herein is illegal. Certified copies of judgment and decree passed in O.S.No.6959/2015 has been produced by plaintiffs as per Ex.P.17. Said suit filed by defendant No.9 herein as plaintiff was decreed. It is declared that, release deed as per Ex.D.6 herein executed in favour of defendant No.5 is by way of misrepresentation and it was not executed by executants out of free will and in circumstances of love and affection. Hence, i answer additional issue No.1 dated 02.11.2018 and 28 O.S.No.26445/2014 additional issue No.1 dated 19.11.2022 are in the negative.
34. ADDITIONAL ISSUES NO.2 AND 3 DATED 19.11.2023 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
35. As already discussed, parties are not in dispute with regard to relationship of plaintiffs and defendants with that of deceased G. Venkataiah and Smt. Narayanamma. Defendants No.10 and 11 shown as children of deceased Smt. V. Mahalakshmi. Fact to be noted here, defendants No.2 and 3 in their written statement nowhere contended, these defendant Nos.10 and 11 are not children of deceased Smt. V. Mahalakshmi. Defendant No.10 has been examined as D.W.2 before court. While cross-examining D.W.2, it is suggested, she is fostered daughter of deceased Smt. V. Mahalakshmi, same is denied as false by witness. It is 29 O.S.No.26445/2014 specifically claimed by witnesses, deceased Smt. V. Mahalakshmi is her natural mother. It is further suggested to D.W.2 that, she has produced false voter ID of Smt. Mahalakshmi.
36. Fact to be noted here, as already discussed, except suggestion during cross-examination of D.W.2 nothing worth placed on record to say these defendants No.10 and 11 are not children of deceased Smt. V. Mahalakshmi. As already discussed, other legal heirs of deceased Smt. V. Mahalakshmi who are defendants No.2 and 3 have not disputed relationship of these defendants No.10 and 11 as heirs of deceased Smt. V. Mahalakshmi. Hence, I answer additional Issue No.2 in the negative and Additional Issue No.3 in the affirmative.
37. ADDITIONAL ISSUE NO.5 :- It is specific contention of defendant No.5 and same is vehemently argued on behalf of learned counsel for defendants No.5 to 8 that, suit of plaintiffs is barred by law of limitation. It is further argued on behalf of learned counsel for contesting defendants that, Smt. Narayanamma 30 O.S.No.26445/2014 executed Will on 05.12.1998 itself. Same is registered one. The plaintiffs have filed present suit in the year 2014 which is after lapse of nearly 16 years from date of execution of Will. As such, suit of plaintiffs is hopelessly barred by law of limitation.
38. It is pertinent to note here that, it is defendant No.5 and deceased Srinivas who are beneficiaries under Will, they have to establish their right in respect of suit property under alleged Will by establishing executant of Will got right over suit property so as to bequeath it in their favour and they have also under obligation to establish due execution of Will in accordance with law. It is well settled proposition of law that, Will is always disputed document, unless and until its due execution is proved as required under law. It is not plaintiffs and other legal heirs of deceased G. Venkataiah and Smt. Narayanamma to challenge Will. Unless and until rights of defendant No.5 and deceased Srinivas in respect of suit property established under Will, there is no occasion or opportunity for these plaintiffs and other 31 O.S.No.26445/2014 defendants to challenge alleged Will executed by Smt. Narayanamma.
39. Further, fact to be noted here, defendant No.5 herein had filed O.S.No.27334/2009 against deceased Srinivas based on Will executed by Smt. Narayanamma. In said suit also these plaintiffs and other defendants have not been made as party to suit. The plaintiffs have specifically pleaded, cause of action to file present suit arose when they noticed fact that, defendant No.5 and deceased Srinivas have fraudulently obtained collusive decree in O.S.No.27334/2009. Further more, in suit for partition cause of action is reoccurring one, unless and until actual shares of sharers effected by metes and bounds. In view of these facts, contention of contesting defendants that, suit of plaintiff is barred by law is not sustainable in the eyes of law. The principle laid down in decision of Hon'ble Supreme Court reported in AIR 2019 SC 2696 in case of Murugan and Others Vs. Kesava Gounder (Dead) by LR's as relied by counsel for plaintiffs is not aptly applicable to facts and circumstances of case on hands. Said decision is 32 O.S.No.26445/2014 pertaining to sale of property of minor by his guardian. Hence, I answer Additional Issue No.5 in the negative.
40. ISSUES NO.2 AND 6 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
41. As aforesaid, defendant No.1, deceased V. Ramachandra, deceased Smt. V. Mahalakshmi, defendant No.4, defendant No.5, deceased V. Srinivas and defendant No.9 are children of G. Venkataiah and Smt. Narayanamma. G. Venkataiah in whose favour suit property was allotted under lease-cum-sale agreement by CITB died intestate. Smt. Narayanamma after death of G. Venkataiah had approached concerned authority and got executed sale deed in respect of suit property in her favour. Smt. Narayanamma had no absolute right over suit property so as to bequeath it in favour of defendant No.5 and deceased Srinivas as per 33 O.S.No.26445/2014 Will dated 05.12.1998. Once, Smt. Narayanamma had no absolute right over suit property and compromise decree in O.S.No.27334/2009 is not binding on plaintiffs and other defendants, as per Sec.8 of Hindu Succession Act, all children of G. Venkataiah and Smt. Narayanamma have got equal share in suit property by metes and bounds.
42. It is vehemently argued on behalf of learned counsel for contesting defendants that, present suit filed by plaintiffs is hit by principles of res-judicata. In this regard, learned counsel for defendant No.5 has drawn attention of court to Ex.P.17 which is certified copy of judgment in O.S.No.6959/2015 which is filed by defendant No.9 against defendant No.5, defendant No.1 and defendant No.4 for declaration to declare release deed dated 09.08.2012 executed in favour of defendant No.5 is illegal and to direct defendant No.5 herein to cancel said release deed.
43. It is also argued that, issue with regard to subject matter of suit has been already decided in O.S.No.27334/2009. Challenging judgment and decree 34 O.S.No.26445/2014 passed in O.S.No.6959/2015, RFA No.1832/2022 is pending before Hon'ble High Court. It is further argued by learned counsel for defendant No.5 that, defendant No.1 filed O.S.No.2396/2021 and defendant No.4 filed O.S.No.1720/2022. In all these suits none have sought for cancellation of Will.
44. It is required to be noted here, in order to apply principles of res-judicata, it is very much necessary that, parties in present suit and parties in earlier suit are one and the same or any of them are claiming under them. Further, subject matter involved in present suit and subject matter involved in earlier suit must one and same. Issue in respect of subject matter involved in present suit and issue with regard to subject matter involved in earlier suit must be one and same. Above all said issue with regard to subject matter in present suit have already heard and decided by competent court of law in earlier suit.
45. It is to be noted here, plaintiffs and defendants No.1 to 4, 9 to 11 are not parties to O.S.No.27334/2009. Issue involved in said suit is as to 35 O.S.No.26445/2014 whether plaintiff therein establishes due execution of Will in respect of suit property by Smt. Narayanamma in his favour and in favour of deceased Srinivas. Moreover, said suit was not finally heard and decided by court. On the other hand, it was ended in compromise.
46. As contended by contesting defendants O.S. No.6959/2015, O.S.No.2396/2021 and O.S.No. 1720/2022 filed challenging release deed executed in favour of defendant No.5. There is no material placed on record to show, issue in respect of suit property involved in present suit and issue involved in those suits are one and the same. This is comprehensive suit filed by plaintiffs seeking partition in suit property by metes and bounds. Further, as admitted by defendant No.5 himself Regular First Appeal is pending before Hon'ble High Court. It means to say, matter an issue in present suit which alleged to be similar in earlier suit is not attained finality. As such, contention of defendant No.5 that, present suit is hit by principles of res- judicata is not at all maintainable.
36 O.S.No.26445/2014
47. It is material to note here that, defendant No.9 has been examined as D.W.1 before court. While cross- examining D.W.1, it is suggested by learned counsel for contesting defendants that, one Seethamma is first wife of G. Venkataiah. Said suggestion has been clearly admitted by D.W.1 as true. It is also clearly admitted by D.W.1 that, Sharadamma is daughter of G. Venkataiah through is first wife Seethamma. It is tried to clarify by D.W.1 that, long back they have left the company of G. Venkataiah. It is further say of D.W.1 that, said Seethamma and Sharadamma are not made as parties to suit.
48. It is to be noted here, plaintiffs and defendants No.1 to 4, 9 to 11 are sailing with each other. Herein the case, admittedly, genealogy of family, more particularly which is issued by competent authority not placed before court. Defendant No.9 being one of daughters of G. Venkataiah has clearly stated Seethamma is first wife of G. Venkataiah. Nowhere in pleadings of plaintiffs or defendants it is pleaded about first wife of G. Venkataiah. It is not pleaded and established, said first wife of G. Venkataiah by name Smt. Seethamma 37 O.S.No.26445/2014 was legally divorced and Seethamma and her daughter Sharadamma have given up their right in suit property and thereafter G. Venkataiah married Smt. Narayanamma. Unless these facts have been pleaded and proved, contention of plaintiffs and defendants that, they are only legal heirs of deceased G. Venkataiah is not sustainable.
49. Further it is to be noted here, in case plaintiffs and defendants herein failed to establish there was legal divorce between G. Venkataiah and Smt. Seethamma, it is said Seethamma and Saradamma are Class-I legal heirs of deceased G. Venkataiah. Presence of Seethamma or Sharadamma as legal heirs of deceased G. Venkataiah materially affects share of plaintiffs and defendants to be allotted in suit property.
50. It is well settled proposition of law that, in suit for partition all parties are plaintiffs and all are defendants. The plaintiffs and defendants knowing fully well Seethamma is first wife of G. Venkataiah and Sharadamma is daughter of G. Venkataiah through Seethamma intentionally not pleaded about them and 38 O.S.No.26445/2014 no efforts made to implead them as parties to suit. Very suit filed by plaintiffs is bad for non-joinder of necessary parties. Even though, as per material on record it is proved plaintiffs and defendants being heirs of deceased G. Venkataiah and Smt. Narayanamma they are entitled for share in suit property but as necessary parties who are first wife of G. Venkataiah and his daughter Sharadhamma not included in suit, very claim of plaintiffs that, they entitled for 1/7th share together in suit property is not at all maintainable. Hence, I answer Issue No.2 in the negative and Issue No.6 partly in the affirmative.
51. ISSUES No.7 AND ADDITIONAL ISSUE NO.4 :- In view of the above said findings on Issue Nos. 1 to 6, Additional Issues No.1 to 5, I proceed to pass the following:-
ORDER The suit of the plaintiffs is hereby partly decreed with costs.
It is declared that, judgment and decree in O.S.No.27334/2009 which is obtained conclusively by defendant No.5 and 39 O.S.No.26445/2014 deceased Srinivas is not binding on plaintiffs and defendants No.1 to 4, 9 to 11.
As first wife and daughter of G. Venkataiah, who are Smt. Seethamma and Smt. Sharadamma, who are necessary parties to suit are not made as parties to suit intentionally and cautiously, without their presence proper shares of parties cannot be decided.
The plaintiffs or any legal heirs of deceased G. Venkataiah are at liberty to file fresh suit for partition and separate possession of their legitimate share in suit property by impleading Smt. Seethamma and Smt. Sharadamma as parties to said suit.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed & computerized by her, corrected and signed by me and then pronounced in the open Court on this the 18th day of March, 2025).
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru. 40 O.S.No.26445/2014 ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : Arun R. 14-06-2019
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : Certified copy of sale deed dated 12.07.1989.
Ex.P.1(a) : Typed copy of Ex.P.1.
Ex.P.2 : Certified copy of khata extract. Ex.P.3 : Certified copy of death certificate of Smt. Narayanamma died on 07.02.1999.
Ex.P.4 : Certified copy of order sheet in O.S.No.27334/2009.
Ex.P.5 : Certified copy of plaint in O.S.No.27334/2009.
Ex.P.6 : Certified copy of written statement in O.S.No.27334/2009.
Ex.P.7 : Certified copy of plaintiff evidence in chief affidavit in O.S.No.27334/2009.
Ex.P.8 : Certified copy of issues in O.S.No.27334/2009.
Ex.P.9 : Certified copy of the compromise petition under Order XXIII Rule 3 of CPC.
Ex.P.10 : Certified copy of compromise decree dated 08.01.2013.
Ex.P.11 : Certified copy of final decree dated 23.01.2013.
Ex.P.12 : Certified copy of final decree dated 11.01.2014.
Ex.P.13 : Certified copy of final decree dated 20.04.2019.
41 O.S.No.26445/2014Ex.P.14 : Certified copy of Will dated 05.12.1998. Ex.P.14(a): Typed copy of Ex.P.14.
Ex.P.15 : Certified copy of lease-cum-sale agreement dated 03.05.2015.
Ex.P.16 : Copy of evidence of defendant No.1. Ex.P.17 : Certified copy of judgment in O.S.No.6959/2015.
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : Smt. V. Latha 22-11-2017. D.W.2 : Smt. Y.G. Kumari 22-11-2017. D.W.3 : V. Govindaraju 30-03-2022. D.W.4 : K. Narayanaswamy 10-06-2024. D.W.5 : K. Gandhi 07-08-2024. D.W.6 : Smt. Srilakshmi R. 21-10-2024.
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : Certified copy of sale deed dated 19.06.1989.
Ex.D.1(a): Typed copy of Ex.P.1. Exs.D.2 : Certified copy of compromise application, to D.5 decree, two final decree in O.S.No.27334/2009.
Ex.D.6 : Certified copy of release deed dated 09.08.2012.
Ex.D.7 : Original Will.
Ex.D.8 : Final decree in O.S.No.27334/2009. Ex.D.9 : Encumbrance Certificate.42 O.S.No.26445/2014
Ex.D.10 : Khata certificate. Ex.D.11 : Khata extract. Ex.D.12 : A.R. Extract.
Ex.D.13 : Genealogical tree. Ex.D.14 : Notarized Voter ID. Ex.D.15 : Notarized Aadhaar Card.
Exs.D.16 : Notarized election Cards and D.17 Ex.D.18 : Death certificate of A.K. Kannan died on 01.04.2012.
Ex.D.19 : Original decree in O.S.No.27334/2009. Ex.D.20 : Death certificate of Sri V. Srinivas died on 12.12.2013.
Ex.D.21 : Encumbrance certificate.
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.