Bangalore District Court
In vs In on 14 November, 2016
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Ms.VELA.D.K., B.A.L., LL.B., (Hon's)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 14th day of November, 2016
O.S.No.6482/2008 CLUBBED WITH
O.S.No.2556/2011
Plaintiff/s in
O.S.No.6482/2008 : Sri.C.Srinivas,
aged about 52 years,
s/o. late V.Chinnaswamy,
r/at No.178, 2nd Main,
3rd 'A' cross, BSK 3rd stage,
Bangalore-560085.
(By Sri.R.R.S., Advocate)
Plaintiff/s in
O.S.No.2556/2011 : 1. Smt.Vijayalakshmi,
D/o. late V.Chinnaswamy,
w/o.Sri.C.N.Thyagarajaiah,
55 years
2. Smt.Gayathri,
D/o. late V.Chinnaswamy,
w/o. Sri.Jeevaprakash,
aged about 45 years,
No.337/B, M.G.Colony,
Railway Quarters,
Bangalore-560023.
3. Smt.Latha,
D/o. late V.Chinnaswamy,
W/o. Sri.Babu,
aged about 40 years
2 O.S.No.6482/2008
C/w. 2556/2011
1 & 3 are r/at No.E-39,
N.P.Lane, Cottonpet,
Bangalore-560053.
(By Sri.G.S.R. Advocate)
- Vs -
Defendant/s in
O.S.No.6482/2008 : Smt.C.Vijayalakshmi,
aged about 48 years,
w/o. Thyagaraj,
D/o. late V.Chinnaswamy,
r/at E-39, N.P.Lane,
Cotton Pet,
Bangalore-560053.
(By Sri.G.N.B., Advocate)
Defendant/s in
O.S.No.2556/2011 : 1. Smt.Rukminii,
w/o. late Anantha Ram,
c/o. Lingamma,
aged about 55 years,
Maruthi Nagar,
2nd 'B' cross, Tumkur.
2. Sri.Srinivas,
s/o. late V.Chinnaswamy,
aged about 54 years
r/at No.178, 2nd Main,
3rd 'A' cross, BSK 3rd stage,
Bangalore-560085.
(By Sri.B.S.R. for D-1 and
Sri.R.R.S. for D-2)
Date of institution
of the suit :
In O.S.6482/2008 : 18.09.2008
3 O.S.No.6482/2008
C/w. 2556/2011
In O.S.No.2556/2011 : 06.04.2011
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] :
In O.S.6482/2008 : Ejectment
In O.S.No.2556/2011 : Partition and
Separate Possession
Date of the commencement
of recording of the evidence: 27.03.2010
Date on which the
Judgment was pronounced : 14.11.2016
Year/s Month/s Day/s
Total Duration
In O.S.6482/2008 : -08- -01- -26-
In O.S.No.2556/2011 : -05- -07- -08-
COMMON JUDGMENT
By virtue of the order in Miscellaneous Petition
No.553/2011 dated 29.11.2011 by the Hon'ble Prl. District
& Sessions Judge, Bangalore, O.S.No.2556/2011 has been
ordered to be tried along with O.S.No.6482/2008. Further
by order dated 04.07.2012, O.S.No.2556/2011 is clubbed
with O.S.No.6482/2008 for common trial. The plaintiff in
O.S.No.6482/2008 is the 2nd defendant in
O.S.No.2556/2011. The defendant in O.S.No.6482/2008 is
the 1st plaintiff in O.S.No.2556/2011. The plaintiff Nos.2
4 O.S.No.6482/2008
C/w. 2556/2011
and 3 and the 1st defendant in O.S.No.2556/2011 are not
the parties to O.S.No.6482/2008. The relationship between
the parties is that the plaintiff in O.S.6482/2008 and the
plaintiff Nos.1 to 3 in O.S.No.2556/2011 are the brothers
and sisters. The 1st defendant in O.S.6482/2008 is the
widow of the deceased brother of the plaintiff and his
sisters. Common evidence has been adduced. In the
course of the common judgment, rank of the parties shall
be referred to their ranks in O.S.No.6482/2008.
2. The relief sought by the plaintiff in
O.S.No.6482/2008 has been to direct the defendant to
vacate and hand over possession of the suit schedule
property. The case of plaintiff has been that he is the
absolute owner of the suit schedule property acquired vide
registered settlement deed dated 18.12.1984 executed by
his father Chinnaswamy. The plaintiff is said to have
mortgaged the schedule 'A' property to the Bangalore City
Co-operative Bank Limited. Therefore the original
settlement deed is said to be with the Bank. Thereafter,
the plaintiff is said to have constructed three floors in the
year 1985 wherein the ground floor being the godown and
first floor and second floor to be residential house. The 1st
floor is said to be occupied by the plaintiff. The defendant
5 O.S.No.6482/2008
C/w. 2556/2011
is said to be the younger sister and was married in the year
1973 to one Thyagaraj. Subsequent to her marriage, the
defendant is said to have faced lot of difficulties in her
matrimonial home. During the year 1985, the defendant is
said to have approached the plaintiff and expressed her
difficulties and sufferings facing out of her marriage in the
matrimonial home. Therefore, is said to have requested the
plaintiff to permit her to occupy one of the premises
constructed in the plaint schedule property. The plaintiff
being brother of the defendant and in order to stand by the
defendant in her difficult times, is said to have permitted
the defendant to occupy the second floor of the house
which is the suit schedule 'B' property as a licensee. On
account of the relationship between the parties, it was said
to be agreed between them that the plaintiff would not
claim any license fee from the defendant. Further the
defendant is said to have agreed to hand over the
occupation of the suit schedule premises to the plaintiff as
and when demanded by the plaintiff.
3. After passage of a decade, the defendant and
her husband are said to have acquired several properties in
and around Bangalore, which is said to have been lent out
to several tenants on rental basis and enjoying the income
6 O.S.No.6482/2008
C/w. 2556/2011
derived from the properties owned by them. The defendant
is said to be leading her life happily and had no difficulties,
economic or otherwise. The plaintiff is said to be at present
in need of the suit schedule premises for his own
occupation and therefore orally demanded the defendant to
vacate the premises in June 2008. The defendant is said to
have not responded to the demand of the plaintiff
whereupon the plaintiff was constrained to issue legal
notice on 13.08.2008 by RPAD seeking for possession of the
suit schedule premises. The defendant being aware of the
contents is said to have deliberately refused to receive the
legal notice with malafide intention and ulterior motives.
The defendant is said to have not handed over the
occupation of the suit schedule 'B' premises to the plaintiff
till date. Hence, the plaintiff has filed the above suit.
4. In the written statement, the defendant has
admitted relationship. The specific contention of the
defendant has been that the registered Settlement Deed
dated 18.12.1984 to be concocted document. The
defendant is said to be residing on the suit schedule
premises on her own right along with other sisters and
other portions of the said property. Therefore, the plaintiff
is said to have no exclusive right over the suit schedule
7 O.S.No.6482/2008
C/w. 2556/2011
property. The suit schedule property is said to be the joint
family property and the defendant being Class I heirs is said
to have all right and share in the property. Earlier by
disposing the ancestral property, the father of the
defendant late Chinnaswamy is said to have purchased the
present suit property by utilizing that consideration amount
and hence the suit schedule property is said to be the joint
family property of the plaintiff, defendant and other children
of late Chinnaswamy. The defendant is said to have been
residing in the said suit schedule property during her life
time of her father late Chinnaswamy itself who is said to
have love and affection equally towards all the children.
Therefore, there was no necessity for late Chinnaswamy to
execute any deed in favour of the plaintiff alone.
5. Moreover, the defendant is said to have
contributed financially for the development and construction
in the suit schedule property to her father, therefore father
of the defendant had asked the defendant to stay in the suit
schedule 'B' premises and accordingly the defendant is said
to be staying independently on her in the schedule
premises. Further the defendant is said to have helped the
plaintiff during his financial difficulties for the construction
of the house at Banashankari, Bangalore City. The suit is
8 O.S.No.6482/2008
C/w. 2556/2011
bad for non - joinder of necessary parties. The defendant
along with other sisters are said to be entitled to share over
the suit schedule property being the daughters of late
Chinnaswamy. Denying all the other averments of the
plaint and therefore sought for the dismissal of the suit.
6. The O.S.2556/2011 has been filed for Partition
and Separate Possession of 1/5th share.
The case of the plaintiffs in this suit has been that late
Chinnaswamy is the father of the plaintiffs and the
defendants. The defendants are the brothers of the
plaintiff. The suit schedule property originally belonged to
Chinnaswamy and therefore the suit schedule property are
the ancestral properties of the plaintiff and the defendants.
The said Chinnaswamy is said to have ancestral property
wherein he was allotted the legitimate share consisting of
house situated at Gowdnapet Subbannachari Galli,
Aralepete, Bangalore. The property was said to be sold to
his brother Munishamappa under registered sale deed dated
21.07.1966. Out of the consideration amount, the said
Chinnaswamy is said to have purchased the suit schedule
property and on the very same day on 21.07.1966
purchased the property from Munivenkatappa and the
9 O.S.No.6482/2008
C/w. 2556/2011
second son Seetharam for valuable consideration.
Thereupon, Chinnaswamy was in its possession and
enjoyment of the suit schedule property. The suit schedule
property being the ancestral and joint family property of the
plaintiffs and defendants and the plaintiff being Class I heirs
are said to be entitled for legitimate share in the suit
schedule property. This property is said to have been
acquired by selling the ancestral property under different
portions of the suit schedule property from many years.
The plaintiff is said to be residing without any objectios
from anybody.
7. The defendants are said to have no exclusive
right over the suit schedule property. Surprisingly the 2nd
defendant is said to have filed the suit for ejectment in
O.S.6482/2008. That suit is said to be based upon the
Settlement Deed dated 18.12.1984. Chinnaswamy is said
to have no independent right to execute such a deed in
favour of the 1st defendant. Chinnaswamy is said to have
no independent alienable title and further those documents
are said to defeat the right or claims of the plaintiffs, who
are Class I Heirs. The Settlement Deed is said to be a void
document and not to defeat the rights of the plaintiff. The
suit was said to have been contested by filing written
10 O.S.No.6482/2008
C/w. 2556/2011
statement. Subsequently, the plaintiff are said to have
approached the defendants to allot their legitimate share
and the same is said to have been protracted for one or the
other reasons and lastly the defendant is said to have
refused to part with the share of the plaintiff. The 1st
defendant is said to have attempted to claim exclusive right
over the suit schedule property. After obtaining necessary
documents, legal advice, the plaintiffs are said to have
constrained to file the suit for their legitimate share in the
suit schedule property by metes and bounds. All the
properties are said to be in joint possession and enjoyment
of the plaintiffs and defendants and hence, filed the suit.
8. In the written statement, the 1st defendant has
contended her husbands name to be Anantha Ram and not
Anantha Raj. The relationship and that the suit schedule
property to belong to the Chinnaswamy are admitted facts.
The property allotted to the share of Chinnaswamy out of
the ancestral properties and that property to have been
sold to his brother Munishamappa vide registered sale deed
dated 21.07.1966 is also an admitted fact. That property is
said to have been sold to clear the family debt.
11 O.S.No.6482/2008
C/w. 2556/2011
9. During the life time, Chinnaswamy is said to
have borrowed hand loan from various persons for the
welfare of the plaintiff and defendants. Out of his savings
and with the help of the 2nd defendant, Chinnaswamy is
said to have purchased the suit schedule property on
22.07.1966. This Chinnaswamy was said to be a
Government employee with sufficient income to purchase
the suit schedule property. The suit schedule property is
self acquired property of late Chinnaswamy and not entitled
for any share in the suit schedule property. The suit
schedule property therefore being ancestral joint family
property of plaintiffs and defendants, the plaintiffs being
Class I heirs are said to be entitled for legitimate share in
the suit schedule property and the same is acquired by late
Chinnaswamy by selling the property. The suit schedule
property is said to be not the ancestral property and not
acquired by selling the property. Being self acquired
property, therefore Chinnaswamy is said to have executed
Settlement Deed, therefore in favour of the 2nd defendant.
The revenue records are said to sand in the name of the 2nd
defendant and from 1984. The 2nd defendant is said to
have been paying the property tax being the absolute
owner of the suit schedule property.
12 O.S.No.6482/2008
C/w. 2556/2011
10. The 1st defendant was said to have married with
Anantha Raj and during that time the plaintiffs were said to
be residing at their husband's place. After the marriage,
Anantha Raj is said to have been residing in a separate
house, but he is said to have visited his parents. The 2nd
defendant is said to have cleared the debt and taken the
responsibility of the marriage of the plaintiff and on
considering all these, Chinnaswamy is said to have
executed the said Settlement Deed dated 18.12.1984 in
favour of the 2nd defendant. The husband of the 1st
defendant viz., Anantha Raj is said to be one of the witness
to that document. On the request of the 1st plaintiff, the 2nd
defendant being the brother permitted the 1st defendant to
reside in a portion of the suit schedule property only for few
years until the 1st defendant owned any other house.
11. The 2nd defendant in the written statement has
taken up contention in consonance with the 1st defendant.
In addition, the 2nd defendant has specifically contended
that Chinnaswamy to have sold ancestral property to his
brother and cleared the family debt. The 2nd defendant is
said to have contributed towards marriage expenditure of
the 1st plaintiff and 3rd plaintiff and also helped to clear the
family debts of his father. Late Chinnaswamy is said to
13 O.S.No.6482/2008
C/w. 2556/2011
have borrowed hand loan of Rs.2,000/- from Muni
Huchappa on 27.08.1975 by executing demand promissory
note that was discharged by the 2nd defendant and other
hand loans. The contribution towards the family by the 2nd
defendant was considered by Chinnaswamy, but thereupon
executed Settlement Deed dated 18.12.1984.
Chinnaswamy is said to have purchased the suit schedule
property and at that time one Kuppuswamy was said to be
in possession of the property as tenant whereupon HRC
No.1763/1976 was filed and renumbered as HRC
No.675/1980 before Small Cause Court, Bangalore and
Kuppuswamy was said to be in possession upto 1983 and
later Chinnaswamy filed Ex.No.72/1983, Chinnaswamy is
said to have obtained possession of the suit schedule
property from Kuppuswamy. Then there was execution of
the Settlement Deed dated 18.12.1984 in the name of the
2nd defendant who is said to have demolished old house and
putup construction in the suit schedule property.
12. The defendant is said to have invested more
lakhs of rupees for the construction. Chinnaswamy is said
to have not permitted the 1st plaintiff to reside in the suit
schedule property, infact was permitted by the 2nd
defendant. After the construction was completed, the 1st
14 O.S.No.6482/2008
C/w. 2556/2011
plaintiff and his family members are said to be residing in
the rented house and the owners of the plaintiff is said to
have forcibly evicted the 1st plaintiff and his family
members. During such time as brother, the 2nd defendant
is said to have allowed the 1st plaintiff to reside in the suit
schedule property only for a period of few years. At that
time, the first plaintiff is said to have promised that she
would vacate the suit schedule property after completing
house construction at 3rd Bock HAL Thippasandra,
Bangalore, but the 1st plaintiff is said to have not kept her
promise. Whenever the 2nd defendant is said to have asked
the 1st plaintiff to vacate the schedule premises, they are
said to have picked up quarrel and to have lodged false
complaint before the police.
13. At the instigation of the 1st plaintiff, the 3rd
plaintiff is said to have occupied one portion of the suit
schedule property with an intention to grab the suit
schedule property. The schedule property being self
acquired property of Chinnaswamy, therefore is said to
have right to execute the Settlement Deed dated
18.12.1984 in the name of the 2nd defendant. The 2nd
defendant is said to have cleared the debt of Chinnaswamy
and taken responsibility of the marriage of the plaintiff and
15 O.S.No.6482/2008
C/w. 2556/2011
considering it all these facts the Settlement Deed dated
18.12.1984 as said to be executed in the name of the 2nd
defendant. During that time, the husband of the 1st
defendant Anantha Raj is said to be the witness to that
document. On investing more than lakhs of rupees, the 2nd
defendant is said to have put up construction. The 1st
defendant is said to have requested to reside in the portion
of the schedule property till construction of her house
construction was completed at HAL Thippasandra,
Bangalore. The plaintiffs when were evicted from the
rented house by her land lord, the 2nd defendant as brother
of the 1st plaintiff is said to have permitted to reside in the
portion of the schedule property without payment of any
rent. The permission was said to have been given only for
a period of few years until the construction of her own
house was complete.
14. This Chinnaswamy being an Government
employee is said to have sufficient income and the 2nd
defendant was said to be working in printing press as well
as working with Chinnaswamy. Later the 2nd defendant is
said to have started his own business at Akkipet Main Road
and also helped his father. Therefore, Chinnaswamy is said
to have sold his ancestral property to his brother and
16 O.S.No.6482/2008
C/w. 2556/2011
cleared his family debt and moved to rented house.
Subsequently, HRC litigation is said to have taken place
whereupon on obtaining decree, Chinnaswamy is said to
have filed Ex.Petition No.72/1983. From the date of the
Settlement Deed dated 18.12.1984, the 2nd defendant is
said to have become the absolute owner of the schedule
property and with independent right and title over the suit
schedule property. The revenue records is said to be
standing in the name of the 2nd defendant, old house was
said to be demolished and the 2nd defendant is said to have
constructed new building consisting of ground floor, first
floor, second floor and third floor and invested lakhs of
rupees on the said construction. Neither Chinnaswamy nor
the plaintiff is said to have contributed any amount towards
the development of the schedule property. The plaintiffs
are said to be liable to pay damages to the 2nd defendant
and the plaintiffs No.1 and 3 without paying rent are said to
be residing in the schedule property and causing hardship
to the plaintiff. Denying all the other averments of the
plaint and therefore sought for the dismissal of the suit.
15. My predecessor-in-office had framed the
following issues :
17 O.S.No.6482/2008
C/w. 2556/2011
IN O.S.NO.6482/2008 :
1. Whether the plaintiff proves that he is the owner
of the suit schedule property?
2. Whether the plaintiff proves that the defendant
is residing in the suit schedule property as a
licensee?
3. Whether the plaintiff is entitled for possession of
the suit schedule property?
4. Whether the defendant proves that she is
residing in the suit schedule property on her own
right, independently?
5. Whether the defendant proves that the suit is
bad for non joinder of necessary parties?
6. Whether the plaintiff is entitled for the relief
sought for?
7. What order or decree?
IN O.S.NO.2556/2011 :
1. Whether the plaintiffs prove that, the suit
schedule property is the joint family property of
plaintiffs and defendants?
2. Whether the defendants prove that late
Chinnaswamy during his life time had executed a
settlement deed dated 18.12.1984 in the name
18 O.S.No.6482/2008
C/w. 2556/2011
of the 2nd defendant as such defendant No.2 is
the owner of the suit schedule property?
3. Whether the plaintiffs prove that they are
entitled for 1/5th share each in the suit schedule
property by metes and bounds?
4. What order or decree?
16. In order to prove the case, the plaintiff has been
examined as P.W.1 and got marked Ex.P.1 to Ex.P.119.
The 2nd defendant in O.S.No.2556/2011 has been examined
as D.W.1 and one more witness as D.W.2 and got marked
Ex.D-1 and Ex.D-2.
17. The findings on the above issues are as follows:
IN O.S.NO.6482/2008 :
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the negative
Issue No.5 : In the negative
Issue No.6 : In the affirmative
Issue No.7 : As per final order
19 O.S.No.6482/2008
C/w. 2556/2011
IN O.S.NO.2556/2011 :
Issue No.1 : In the negative
Issue No.2 : In the affirmative
Issue No.3 : In the negative
Issue No.4 : As per final order
REASONS
18. ISSUE No.1 to 4 IN O.S.No.6482/2008 AND
ISSUE No.1 to 3 IN O.S.No.2556/2011:- The plaintiff
has claimed to be the absolute owner of the suit schedule
property and to have permitted the defendants as a
licensee to reside in the suit schedule property and
therefore entitled for its possession. The defendants have
contended to be residing on their own independent right in
the schedule property and further that the suit schedule
properties to be joint family property of the plaintiff and
defendants and to be entitled for partition. The ownership
has been claimed by the plaintiff based upon the Settlement
Deed dated 18.12.1984. These issues being interlinked
therefore are discussed and answered together in order to
avoid repetition.
20 O.S.No.6482/2008
C/w. 2556/2011
The schedule property in O.S.6482/2008 are as
follows :
SCHEDULE 'A' PROPERTY
All that piece and parcel of the House
property bearing No.39, consisting of three
floors, situated at N.P. Lane, Cottonpet,
Bangalore-560053, measuring East to West
13.6 feet or 4.11 mts and North to South
23 feet or 7.01 mts, totally measuring
29.18 sq mts and bounded on the
East by Ramaiah's property
West by V.Munishamappa's property
North by V.Munishamappa's property
South by N.P. Lane
SCHEDULE 'B' PROPERTY
All that piece and parcel of the second
floor of the House property which forms a
portion of the 'Schedule 'A' property'
bearing No.39, situated at N.P.Lane,
Cottonpet, Bangalore-560053, measuring
23 feet X 13.5 feet, in all measuring
310.50 sq. feet.
21 O.S.No.6482/2008
C/w. 2556/2011
19. The suit property in O.S.No.2556/2011 is the
schedule 'A' property of O.S.No.6482/2008.
The plaintiff has claimed the ownership of the suit
schedule property by virtue of the Settlement Deed dated
18.12.1984. The certified copy of the Settlement Deed has
been marked as Ex.P-1. This document shows that it has
been executed in favour of the plaintiff by Chinnaswamy
son of late Venkatappa i.e., the father of the plaintiff. It
states that the property to have been purchased by
Chinnaswamy vide registered sale deed dated 22.07.1966
executed by his vendor H.Munivenkatappa and Seetharam.
It also states that elder son Anantha Raju and elder
daughter to be Vijayalakshmi i.e., the defendant in the
present case. Only these two are said to have been
married and that the defendant Vijayalakshmi to be residing
at her husband's house. The remaining children viz.,
plaintiff, daughters Gayathri aged about 20 years, Latha,
aged about 15 years and his wife Gowramma to be residing
along with him. Further recitals of this document has been
to the effect that the plaintiff to have been supporting the
father in all manner and therefore for the further
development of the plaintiff, therefore the ownership and
22 O.S.No.6482/2008
C/w. 2556/2011
possession of the property given to the plaintiff. The exact
recitals in this regard has been
"F ªÀåªÀ¸ÁÜ ¥ÀvÀæzÀ ªÀÄÆ®PÀ ¤ªÀÄUÉ PÉÆlÖ F ¢£ÀªÉÃ
¸ÀA¥ÀÇtð ¸Áé¢üãÀPÉÌ ªÀ»¹PÉÆnÖgÀÄvÉÛãÉ. F¯ÁUÁAiÀÄÄÛ
µÉqÀÆå®Ä ¸ÀéwÛUÉ ¤Ã£Éà ¸ÀA¥ÀÇtð ªÀiÁ°ÃPÀ£ÁV ªÀÄÄAzÉ
EzÀgÀ°è zÉÆgÉAiÀħºÀÄzÁzÀ ¤¢ü ¤PÉëÃ¥À d® vÀgÀÄ
¥ÁµÁuÁ¢ü CµÀÖ ¨sÉÆÃUÀ vÉÃd ¸ËªÀÄåAUÀ½UÀÆ PÀæAiÀÄ zÁ£À
¨sÉÆÃUÀå DzsÁgÀªÉà ªÉÆzÀ¯ÁzÀ ªÀåªÀºÁgÀ avÀĵÀÖAiÀÄAUÀ½UÀÆ
¤Ã£Éà ¸ÀA¥ÀÇtð ºÀPÀÄÌzÁgÀ£ÁV ¤£Àß ¥ÀÅvÀæ
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§gÀvÀPÀÌzÀÄÝ."
The description of the property in this deed has been
the suit schedule 'A' property. The sale deed dated
22.07.1966 referred in Ex.P-1 has been to the effect that
the father of the plaintiff to have purchased that property.
20. In the oral evidence P.W.1 has stated that the
suit property to be self acquired property of his father,
nature of the suggestion put forth to P.W.1 has been that
the suit property to have been purchased from out of the
sale proceeds of the ancestral property of the father and
23 O.S.No.6482/2008
C/w. 2556/2011
that the defendant to have contributed financially for the
construction of the building in the suit schedule property.
Particularly, P.W.1 has stated to have given for rent the
first floor of the building and earning Rs.2,000/- per month
as rent. Further he was informed about existence of
ancestral properties and that they were sold for family
necessities. According to him, indeed the property situated
at Gowdnapet Subbannachari Galli, Aralepete, Bangalore
was to have been allotted to his father and on 21.07.1966,
his father Chinnaswamy had sold that property to his
brother Muniswamy under the registered sale deed. That
document was admitted and therefore it has been marked
as Ex.D-1. In this sale deed, the property described has
been stated as No.28, bounded on East by House of
Chikkanna, West by another house of purchaser, North by
Footpath and house of one Shivashetty and South by House
of Keshav Mudaliyar, measuring East to West 16.3 feet and
North to South 36 feet.
21. Further, P.W.1 has admitted on 21.07.1996 his
father has purchased the suit property from
Munivenkatappa and his son Seetharamaiah. That certified
copy of the sale deed had been shown during confrontation
and being an admitted documents it has been marked as
24 O.S.No.6482/2008
C/w. 2556/2011
Ex.D-2. Thereby it means that the plaintiff himself has not
produced that document of the sale deed pertaining to his
father's vendor and the defendants only have produced that
document. This Ex.D-2 is the certified copy of the sale
deed dated 21.07.1966 it has been executed in favour of
Chinnaswamy i.e., father of the plaintiff by Munivenkatappa
and Seetharam. This property is said to have been
purchased by the vendor on 03.10.1946.
22. Further P.W.1 has stated that the properties
described in Ex.D-1 and Ex.D-2 to be located in the prime
locality of Bangalore. P.W.-1 in the oral evidence has
deposed that the it is self acquired property of his father.
When his father purchased the suit schedule property it was
said to have been in possession of one Mr.Kuppuswamy as
tenant which is admitted by D.W.-1 in the oral evidence.
HRC No.675/1980 was filed by the father for eviction
against Kuppeswamy and that he had filed only on the
eviction and in execution case No.72/1983 his father had
taken possession on that property. The fact that there was
HRC Proceedings is also admitted by D.W.-1. One
interesting aspect stated by D.W.-1 has been that at the
time of evicting Kuppuswamy, there was said to be an old
house with one floor. That house is said to have been
25 O.S.No.6482/2008
C/w. 2556/2011
demolished in the year 1985 and his father to have
constructed new house consisting of two floor in the same
portion. Ofcourse, there are said to be no documents to
show that her father only to have constructed the two
floors. The ownership of the suit schedule property to
belong to Munivenaktappa and his son Srikanth is admitted
fact. In this context it is to be noted that Munivenkatappa is
the husband of the father's elder sister. Ex.D.1 is the
certified copy of the sale deed dated 21.7.1966 which has
been executed by the father Chinnaswamy in respect of the
house Schedule property to Venkatappa. This document
further states that Venkatappa, V.Narayana, Chinnaswamy,
Ramdas and Jaganath to have been residing in a joint
family. From six years, Chinnaswamy, Ramadas and
Jagnath were residing separately from the joint family on
taking their respective shares in the division of the
property. In this regard each of then are said to have
executed relinquishment deed in their share infavour of
Chinnaswamy, Naraynaswamy. Thereafter, Narayanaswamy
had also separated and residing separately. Being
separated from the joint family, thereafter this
Chinnaswamy executed the sale deed in respect of the
property which has been released in their favour by virtue
of the registered deed dated 7.11.1960. Thereby, he is said
26 O.S.No.6482/2008
C/w. 2556/2011
to have obtained the entire share in the joint family of the
property and rented out that property and thus he is in
possession of that property. That property is said to be
inconvenient to the residents of his family and therefore
inorder to purchase the property wherein the sale talks has
been completed with H.Munivenkatappa and his son
Srikanth. Hence, by virtue of this deed, he has sold the
property for Rs.3,000/- and the property described has
been C.T. 19th Division, Aralepete Godown, Subbannachari
Municipal Door earlier, i.e., old, New No.28, house bounded
East by the house of Chikkana, West by the house of Buyer,
North by footpath and house of S.Chetty, South by the huse
of Keshava Mudaliyar. Measuring East - West - 16.3 feet,
Northern side - 36 feet including the road to the north,
consisting of vacant site and house along with the bathroom
and toilet bounded east, north and south by the property of
Chikkanna's property, west by road. This is said to measure
east - west 8 feet, north -south 6 feet with Mangalore Tile
house. Ex.D.2 is sale deed dated 21.7.1976 which has been
executed in favour of Chinnaswamy 3rd son of old
Venkatappa by Srikanth second son of Munivenkatappa. It
is the reference of the division of the property in the family
of Munivenaktappa and his brother and the share that has
fallen to the share of Munivenkatappa. Thus, this D.W.-1 in
27 O.S.No.6482/2008
C/w. 2556/2011
the oral evidence has stated not to know about the nature
of the transaction that have been handled by her father in
respect of the suit property. Ofcourse, she has admitted not
to have contributed towards the construction of the
structure of the suit schedule property. The grandfather is
said to have five children and the properties situated at
Subbannachari is said to have fallen to the share of her
father under the partition. This D.W.-2 is not aware about
the release deed on 1960 between her father and her
uncles. She is also one of the daughter of Chinnaswamy.
23. But D.W.-1 who is the another daughter of
Chinnaswamy has stated that her father worked in KAVIKA,
maintained by KEB. Her father earned being a Government
Servant and suit property according to her is said to have
been inherited by virtue of the partition. The suggestion
admitted by D.W.-1 has been "It is true to suggest that the
suit property belonged to Munivenaktappa and his son
Seetharam". The admitted fact about the HRC proceedings
goes to show that the father Chinnaswamy had initiated the
eviction proceedings as the landlord of that property. It is
also admitted fact that there has been division in the
grandfather's family. This D.W.-2 has identified the house
warming ceremony with invitation card and photographer of
28 O.S.No.6482/2008
C/w. 2556/2011
her house which has been marked as Ex.P.118 and
Ex.P.119 before the Court. Ex.P.115 is the certified copy of
Judgment passed in OS No.317/2012 which was a suit for
ejectment filed by the present plaintiff against one Latha
W/o.Babu i.e., 3rd plaintiff in OS No.2556/2011 who is one
of the sisters of the plaintiff. There are schedule 'A' and
Schedule 'B' properties in that suit. Schedule 'A' property is
the same as the present schedule 'A' property. The 1st floor
is described as schedule 'B' in that suit and the 2nd floor is
described as schedule 'B' in the above suit. The suit has
been decreed and the 3rd plaintiff has been directed to
handover the vacant possession of the 'B' schedule
premises to the plaintiff. Certified copy of the execution
petition is Ex.P.116. Execution case 2590/13 and the
property described has been in schedule 'A' and 'B'
property.
SCHEDULE 'A' PROPERTY
All that piece and parcel of the building bearing No.E-
39, N.P. Lane, Aralpet, Bangalore-53, measuring East to
West 13.6 feet and North to South 23 feet comprising
ground, first, second and third floor residentiual building
and bounded on the;
East by : Ramaiah House
29 O.S.No.6482/2008
C/w. 2556/2011
West by : V.Muniswamappa House
North by: V.Muniswamappa House
South by : N.P. Lane
SCHEDULE 'B' PROPERTY
All that piece and parcel of the building bearing No.F-
39, N.P. Lane, Aralpet, Bangalore-53, Ist Floor house
consisting one hall, kitchen, one bed room, bath room,
toilet with all amenities like electricity and water connection
measuring 23 feet X 13.5 feet.
24. Ex.P.117 is the certified copy of the warrant
issued in that case and it shows that the present plaintiff
has taken the possession of that property. It also has the
spot mahazar and the possession certificate obtained from
the 3rd plaintiff. Therefore, it means that in respect of the
very same property in the 2nd floor, the plaintiff has already
been granted the relief of eviction on the ground that he is
the absolute owner of the entire 'A' Schedule property.
25. Ex.P.12 is the registered mortgage deed dated
27.8.1975 executed ifnavour of V.Chinnaswamy S/o.Late
Venkatappa by Munichinnappa S/o.late Muniyappa and the
property mortgaged is that in respect of that property
30 O.S.No.6482/2008
C/w. 2556/2011
mortgaged on 19.6.1968. There was execution of registered
mortgage deed at Gandhinagar Sub-Registrar office for a
sum of Rs.4,500/- on 8.6.1969, sum of Rs.2,000/- was
obtained vide registered deed by mortgaging the property.
By virtue of this deed, the total sum of Rs.6,500/-
mortgaged money has been repaid and taken back the
possession of that property. Thus total mortgage money is
Rs.6,500/-. By this deed, the possession of the house along
with the factory cards are handed over to Chinnaswamy.
The property described has been Bangalore City, 19th
Division, Aralapete, Neshyada pillana lane, Municipal house
No.3090 bounded by - East by the house of Ramappa,
West and North by the house of Munishamappa, South by
Pillana lane measuring east to west 13 ½ feet, north to
south 23 feet including the bathroom and toilet. Thereby as
per Ex.P.12 the property mortgaged has been situated at
Neshyada Pillana Lane. Ex.P.13 is another registered
mortgage deed dated 6.7.1966 and executed infavour of
B.N.Settharamaiahand Munivenaktappa by Chikkanna. The
said property was taken for mortgage from Munivenktappa
on 17.5.1960 for a sum of Rs.2,000/-, that amount has
been received by Mortgaging the property and possession is
said to have been handed over. Property described is 19th
division, Aralapet, Neshyada Pillana lane, No.39 assessment
31 O.S.No.6482/2008
C/w. 2556/2011
E-81, house bounded by east - Ramayya's house, west and
north by the house of Muniswamappa, south by neshyada
Pillana Lane.
26. On demand promissory note Ex.P.14 and Ex.P.15
has been for a sum of Rs.2,000/- dated 27.8.1975 executed
by Chinnaswamy infavour of Munihuchappa S/o.Late
Venkatappa. Another such on demand promissory note
dated 22.7.1966 has been executed as per Ex.P.16 and 17
to Seethramaiah by Chinnaswamy for a sum of Rs.2,000/-.
The postal cover and invitation card pertaining to the house
warming ceremony of the plaintiff have been marked as
Ex.P.18. The above described documents goes to show that
in need mortgage transaction was executed by
Chinnaswamy by mortgaging the suit schedule property.
Ex.P.114 is the dairy maintained by the petitioner and it has
the particulars of the daily expenditure incurred. The father
Chinnaswamy had four brothers Muniswamy,
Narayanaswamy, Ramadas, Jagannath. P.W.-1 admitted the
existence of the property situated at Gowdanapete,
Subbanachari Galli, Aralepete that was allotted to his
father. The suggestion admitted by P.W.-1 has been as
follows;
32 O.S.No.6482/2008
C/w. 2556/2011
"It is true that on 21.7.1966 my
father Sri Chinnaswamy sold the
aforesaid property to his brother Sri
Muniswamy under the registered sale
deed. Now, I see the certified copy of
the said sale deed and it is marked as
Ex.D.1".
In return the father had purchased the property as per
Ex.D.2 and his words are -
"It is true that on 21.7.1966 my
father purchased the suit schedule
property from Sri.Munivenkatappa
and his son Seethramaiah. Now, I see
the certified copy of the sale deed and
it is marked as Ex.D.2."
27. Thereby P.W.-1 has admitted about the execution
of Ex.D.1 and Ex.D.2 which are already noted above. The
nature of document Ex.D.1 above noted goes to show that
both are executed on the same day and the father
Chinnaswwamy purchased the property bearing No.28
situated at Subbannachari Galli as per Ex.D.2
H.Munivenkatappa elder son of Late Doddahanumanthappa,
33 O.S.No.6482/2008
C/w. 2556/2011
his second son Srikanth. One H.Munivenktappa and his
younger brother Ramaiah together in the year 1946 there
has been division of the properties between them and one
house property had fallen to the share of
H.Munivenkatappa. In that property, H.Munivenkatappa is
1st son of Krishna Murthy and second son Seethrama are to
be residing from six years and inorder to repay the debts
incurred, they were not interested to further continue as
joint family property and therefore the 1st son Krishna
Murthy has relinquished infavour of M.Seethram on
17.5.1960 registered release deed and got separated
himself and started residing separately.
28. Therefore, he is said to have no right in that
property and the remaining persons on 17.5.1966 vided
executed registered mortgage deed to Chikkaswamy and
mortgaged for Rs.2,000/- inorder to repay that mortgage
amount as well as other loans and further schedule
property cannot be divided and therefore sold this property
so as to share the sale proceeds equally. The property has
been sold for Rs.6,000/-. In this regard Muniswamy has
executed on demand promissory note infavour of Ramaiah
which has been produced by the plaintiff above noted. This
description of the property includes the suit property. The
34 O.S.No.6482/2008
C/w. 2556/2011
settlement deed as above noted has the reference of this
sale deed dated 22.7.1976 Ex.D.2.
29. All the documents produced are registered
document and they have not been challenged by the
defendants. There by the fact that there has been earlier
HRC proceedings by the plaintiff against one of his sister
the 3rd plaintiff above noted of O.S. No.2556/2011. The fact
is that plaintiff has obtained the possession of the property
interest in the execution case as per Ex.P.115 to 117 and to
vacate that, there is reference of Ex.D.2 settlement deed
Ex.P.1 which goes to show that the executants
Chinnaswamy intended that the property i.e., the suit
property should be in the ownership of the plaintiff. The
words used in this Ex.P.1 has been that " »ÃVgÀĪÀ°è
¹.²æäªÁ¸ï DzÀ ¤Ã£ÀÄ EzÀĪÀgÉ«UÀÆ £À£ÀߣÉßà CªÀ®A©¹ £À£ÀUÉ ¸ÀºÁAiÀÄPÀ£ÁVzÀÄÝ
PÀÄlÄA§zÀ ±ÀĨÀsPÁAiÀÄðUÀ¼À°è ¨sÁVAiÀiÁV ¸ÀA¸ÁgÀªÀ£ÀÄß ¸ÀjvÀÆV¹
PÉÆArgÀÄwÛÃAiÀiÁzÀÝjAzÀ ¤£Àß ªÀÄÄA¢£À ¥ÀÅgÉÆéªÉÊ¢L,UÁV F PɼÀUÉ µÀqÀÆå°£À°è
«ªÀj¹gÀĪÀ ¸ÀĪÀiÁgÀÄ 40,000 ¸À®ªÀvÀÄÛ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ¨É¯É ¨Á¼ÀvÀPÀÌ £À£Àß
¸ÀéAiÀiÁ©ðvÀªÁzÀ F PɼÀUÉ µÉqÀÆå°£À°è «ªÀj¹gÀĪÀ ªÀÄ£ÉAiÀÄ ¸ÀévÀÛ£ÀÆß F
ªÀiÀªÀ¸ÁÜ¥ÀvÀæzÀ ªÀÄÆ®PÀ ¤ªÀÄUÉ PÉÆlÄÖ F ¢£ÀªÉà ¸ÀA¥ÀÇtð ¸Áé¢üãÀPÉÌ
ªÀ»¹PÉÆnÖgÀÄvÉÛãÉ..... F¯ÁUÁAiÀÄÄÛ ¥ÉàqÀÆå®Ä ¸ÀéwÛUÉ ¤Ã£Éà ¸ÀA¥ÀÇtð
35 O.S.No.6482/2008
C/w. 2556/2011
ªÀiÁ°ÃPÀ£ÁV ªÀÄÄAzÉ EzÀgÀ°è zÀÉÆgÉAiÀÄ §ºÀÄzÁzÀ ¤¢ü ¤PÉàÃ¥À d® vÀgÀÄ
¥Á¥ÀàÁuÁ¢ü CµÀàÖ ¨sÉÆÃUÀ vÉÃd ¸ÁªÀÄåAUÀ½UÀÆ PÀæAiÀÄzÁ£À ¨sÉÆÃUÀå CzsÁgÀªÉÃ
ªÉÆzÀ¯ÁzÀ ªÀåªÀºÁgÀ ZÀvÀÄÛ¥ÀàÄÖAiÀÄAUÀ½UÀÆ ¤Ã£Éà ¸ÀA¥ÀÇtð ºÀPÀÄÌzÁgÀ£ÁV ¤£Àß
¥ÀÅvÀæ¥ËvÀæªÀA±À¥ÁgÀA¥ÀgÀåªÁV ¸ÀÄR¢AzÀ C£ÀĨÀs«¹PÉÆAqÀÄ §gÀvÀPÀÌzÀÄÝ"
30. Thereby the entire right of the suit schedule
property has been given to the plaintiff. The above noted
citation goes to show that the parties who have contended
existence of the joint family property then it is incumbent
upon them to prove that it is joint family property. The
plaintiff has filed the suit before the court seeking for
possession as he is the owner of the schedule property. In
this regard he has produced this settlement deed. The
contention taken up in the written statement by the
defendants that it is the joint family property and that they
were mortgaged etc., All these aspect have infact discussed
in the settlement deed Ex.P.1. There is no document of the
nature of the property stated by the executants in Ex.P.1
Such being the case in the absence of any other documents
before court, the defendants are thereby not discharged
their burden that the suit property is the joint family
property. Moreover the recitals of Ex.P.1 as well as by
virtue of the citation above discussed it means that there is
36 O.S.No.6482/2008
C/w. 2556/2011
no inducement of coercion or documents so as to discard
any bonafides to Ex.P.1. Therefore, the defendants being
the sisters cannot claim the suit property as the joint family
property. None of the recitals of Ex.P.1 amounts to undue
influence of coercion. The executant Chinnaswamy had
passed away on 31.7.2000 and the settlement deed has
been executed on 18.12.1984. Thereby there cannot be any
independent right for the defendant of O.S. No.6482/2008
to reside independently in the suit schedule property. Being
the sister, it also amounts that infact the defendant was
permitted to reside in the suit schedule property by the
plaintiff. There cannot be any presumption of the suit
property as joint family property because there is a decree
infavour of the plaintiff as owner of the suit schedule
property in the HRC proceedings. The registered settlement
deed at Ex.P.1 has remained unchallenged till date.
31. In (1991) 1 LW 97 : (1991) 2 Mad LJ 199,
(Sundarambal V/s. Deivanaayagam, it is held as under;
Family Settlement -Validity of
Settlement deed- Executant stating in
the deed - That properties covered by
deed were his exclusive properties -
37 O.S.No.6482/2008
C/w. 2556/2011
On whom the burden of providing that
they were joint family properties lies
- Discussed.
32. In AIR 1976 Supreme Court 807 : (1976) 3
Supreme Court Cases 119 (Kale V/s. Deputy Director of
Consolidation), it is held as under;
Family Arrangement - Essentials of family
settlement -(1) The family settlement must
be bound fide one so as to resolve family
disputes and rival claims by a fair and
equitable division or allotment of properties
between the various members of the
family; (2) The said settlement must be
voluntary and should not be induced by
fraud coercion or undue influence; (3) The
family arrangement may be even oral in
which case no registration is necessary; (4)
It is well-settled that registration would be
necessary only if the terms of the family
arrangement are reduced into writing. The
memorandum of family settlement
prepared after the family arrangement had
already been made either for purpose of
38 O.S.No.6482/2008
C/w. 2556/2011
record or for making necessary mutation to
family arrangement must have son
antecedents title, claim or interest, even a
possible claim in the property. Even if one
of the parties to the settlement has no title
but under the arrangement other party
relinquishes all its claim or titles in favour
of such a person and acknowledges him to
be the sole owner, then the antecedent title
must be assumed and family arrangement
will be upheld. (6) Even if bona fide
disputes, present or possible which may
not involve legal claims, are settled by a
bona fide family arrangement which is fair
and equitable the family arrangement is
final and binding on the parties to the
settlement.
33. In AIR 1971 Supreme Court 1337 : (1971) 2
Supreme Court Cases 29 (Shambhu Prasad Singh V/s.
Most. Phool Kumari and Others), wherein it is held as
under;
Family arrangement- Where a family
arranged is challenged the arrangement
39 O.S.No.6482/2008
C/w. 2556/2011
has to be considered as a whole to
ascertain whether it was made tot allay
disputes existing or apprehended in the
interest of harmony in the family or the
preservation of property. It is not
necessary that there must exist a dispute,
actual or possible in the future, in respect
of each and every item of property and
among alleged members arrayed one
against the other. It would be sufficient if it
is shown that there were actual or possible
claims and counter claims by parties in
settlement where of the arrangement as a
whole had been arrived at, thereby
acknowledging title in one to whom a
particular property falls on the assumption
(not actually existing in law) that he had an
anterior title therein.
34. On the other hand, the learned counsel for the
defendant referred to the citations reported in ;
1. Supreme Court Cases 1 (1972) 4 (M.N.Aryamurthy
and Another V/s. M.D.Subbaraya Setty (dead)
through LR and Others)
40 O.S.No.6482/2008
C/w. 2556/2011
2. AIR 2007 Supreme Court 226 (M/s.Bay Berry
Apartmetns Pvt. Ltd., and Anr V/s. Shobha and
others)
3. AIR 1990 PATNA 26 (Harbans Singh V/s.
Smt.Tekamani Devi and Others)
4. Air 2015 SCW 6271 (Rakesh Mohindra V/s. Anita
Beri)
5. AIR 1991 CALCITTA 399 (Basudeb Dey Sarkar V/s.
Smt.Chhaya Dey Sarkar) cannot be availed by the
defendant.
And the citation referred by the plaintiff AIR 1955
Madras 623 (R.Subramania Iyer V/s. The
commissioner of Income Tax, Madras) cannot be
availed by the plaintiff
35. On the other hand the learned counsel for the
plaintiff referred to the citation reported in '
1. AIR 1954 SC page 379 (Srinivas Krishnarao
Kango - Vs - Narayan Devji Kango and others)
"(a) Hindu Law - Joint family - Self
acquisition - Existence of joint family
property - burden of proof.
Proof of the existence of a joint family
does not lead to the presumption that
41 O.S.No.6482/2008
C/w. 2556/2011
property held by any member of the family
is joint and the burden rests upon any one
asserting that any item of property was
joint to establish the fact. But where it is
established that the family possessed some
joint property which from its nature and
relative value may have formed the nucleus
from which the property in question may
have been acquired, the burden shifts to
the party alleging self acquisition to
establish affirmatively that the property
was acquired without the aid of the joint
family property. AIR 1947 PC 189 (192),
Relied on.
Whether the evidence adduced by the
plaintiff was sufficient to shift the burden
which initially rested on him of establishing
that there was adequate nucleus out of
which the acquisitions could have been
made is one of fact depending on the
nature and the extent of the nucleus. The
important thing to consider is the income
which the nucleus yields. A building in the
occupation of the members of a family and
42 O.S.No.6482/2008
C/w. 2556/2011
yielding no income could not be a nucleus
out of which acquisitions could be made,
even though it might be of considerable
value. On the other hand, a running
business in which the capital invested is
comparatively small might conceivably
produce substantial income, which may
well from the foundation of the subsequent
acquisitions. These are abstract questions
of law, but questions of fact to be
determined on the evidence in the case.
Where the finding of the Courts is
that the income from the ancestral lands
was not sufficient even for the maintenance
of the members and the houses in dispute
are substantial, burden is on the plaintiff
who alleges the houses to have been
acquired out of joint family funds, to
establish it.
Held that even if the contention that
on proof of the existence of the Watan
lands the burden had shifted on to the
defendants to prove that the acquisitions
43 O.S.No.6482/2008
C/w. 2556/2011
were made without the aid of joint family
funds, that burden had been discharged.
Likewise it was held that since the
ancestral Watan lands were intact, and
were available for partition, and the small
income derived from them must have been
utilised for the maintenance of the
members of the family, whether it were
held that the plaintiff had failed to
discharge the burden which lay on him of
establishing sufficient nucleus, or that the
defendants had discharged the burden of
establishing that the acquisitions were
made without the aid of joint family funds,
the result was the same."
36. AIR 1969 SC page 1076 (Mudigowda Gowdappa
Sankh and others -Vs- Ramchandra Revgowda Sankh
(dead) by his legal representatives and another)
"(B) Hindu Law - Joint family -
Partition - Severance of joint status -
Essentials - Definite and unequivocal
expression of intention necessary.
44 O.S.No.6482/2008
C/w. 2556/2011
It is now well established that an
agreement between all the coparceners is
not essential to the disruption of the joint
family status, but a definite and
unambiguous indication of intention by one
member to separate himself from the
family and to enjoy his share in severalty
will amount in law to a division of status.
It is immaterial in such a case whether the
other members assent or not. One the
decision in unequivocally expressed, and
clearly intimated to his co-sharers, the
right of the coparcener to obtain and
possess the share to which he admittedly is
entitled, is unimpeachable.
If however the expression of intention
is a mere pretence or a sham, there is in
the eye of law no separation of the joint
family status.
(C) Hindu Law - Joint family -
Ancestral property - NO presumption of
joint property- Possession of nucleus
essential - Burden of proof - When shifts -
(Evidence Act (1872), Ss.114, 101).
45 O.S.No.6482/2008
C/w. 2556/2011
There is no presumption that a Hindu
family merely because it is joint, possess
any joint property. The burden of proving
that any particular property is joint family
property, is therefore, in the first instance
upon the person who claims it as
coparcenary property. But if the
possession of a nucleus of the joint family
property is either admitted or proved, any
acquisition made by a member of the joint
family is presumed to be joint family
property. This is however subject to the
limitation that the joint family property
must be such as with its aid the property in
question could have been acquired. It is
only after the possession of an adequate
nucleus is shown, that the onus shifts on to
the person who claims the property as self
acquisition to affirmatively make out that
the property was acquired without any aid
from the family estate."
37. AIR 1996 SC page 2220 (Namburi Basava
Subrahmanyam - Vs - Alapati Hymavathi and others)
46 O.S.No.6482/2008
C/w. 2556/2011
"Transfer of Property Act (4 of 1882),
S.8 - Settlement Deed or Will -
Interpretation of deed - Deed creating
right and interest 'in presenti' in favour of
settle regarding properties mentioned
therein with life estate for her enjoyment
during her lifetime - Settlee was to acquire
absolute right to enjoyment, alienation etc.
on settlor's demise - Deed is settlement
deed and not Will - Settlor cannot
subsequently bequeath same property in
favour other.
Deed - Construction of."
38. 2016 (161) AIC 698 (P&H., H.C.) (Sunita Rani
and Sushil Kumari). The benefit of this citation cannot be
availed by the plaintiff, in view of the admitted facts in the
oral evidence.
Hence, it means that the plaintiff is entitled for the
possession of the suit schedule property from the
defendant. The issue No.1 to 3 in O.S. No.6482/2008 and
issue No.2 in O.S. No.2556/2011 are answered in the
affirmative. Further the issue No.4 in O.S. No.6482/2008
47 O.S.No.6482/2008
C/w. 2556/2011
and issue No.1 and 3 in O.S. No.2556/2011 are answered
in the negative.
39. ISSUE No.5 IN OS No.6482/2008:- The
defendant along with her sisters has field suit for partition
which is OS No. 2556/2011 which is clubbed with OS
No.6482/2008. Therefore, the suit to be bad for non-joinder
of necessary parties cannot arise and this issue is answered
in the negative.
40. ISSUE No.6 IN OS No.6482/2008:- The
plaintiff has been able to prove that he is the owner of the
suit property by virtue of Ex.P.1 and thereby he is entitled
for the possession of the suit schedule property from the
defendant. The nature of the suit schedule property is joint
family property has not been proved in the present case.
Merely because the plaintiff and defendants are related as
brother and sisters that by itself cannot presume existence
of the suit property as joint family property. Certain
transactions have taken place in respect of the suit
schedule property by the father Chinnaswamy and these
transactions are of the year 1966 and thereafter Ex.P.1 has
been executed by the father who intended to see the suit
schedule property always remains in the ownership of the
48 O.S.No.6482/2008
C/w. 2556/2011
plaintiff. Therefore, this nature of the family arrangement
or settlement deed as per Ex.P.1 rebuts/discards the
presumption of either about the existence of the joint family
property. Hence, this issue is answered in the affirmative.
41. ISSUE No.7 IN OS. No.6482/2006 AND ISSUE
No.4 IN OS No.2556/2011:- Due to the above findings,
the following:
ORDER
The suit of the plaintiff in OS No.6482/2008 is hereby decreed and the suit of the plaintiffs in OS No.2556/20011 is hereby dismissed.
The plaintiff of O.S No.6482/2008 is entitled for possession of the suit schedule 'B' property.
The defendant of O.S. No.6482/2008 shall handover the vacant possession of the suit schedule 'B' property to the plaintiff within a period of six months from the date of the decree, failing which the plaintiff shall take recourse for its execution by due process of law.
Parties being related, therefore to bear their own costs.
49 O.S.No.6482/2008C/w. 2556/2011 Original Judgment is kept in O.S.No.6482/2008 and copy of the Judgment is kept in O.S.No.2556/2011.
Draw decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 14th day of November 2016).
(Ms. VELA.D.K.) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W. 1 C.Srinivas List of documents exhibited on behalf of plaintiff :
Ex.P.1 Certified copy of the Settlement Deed Ex.P.2 Letter Ex.P.3 Office copy of legal notice Ex.P.4 Postal receipt Ex.P.5 Certificate of posting Ex.P.6 Unserved postal cover 50 O.S.No.6482/2008 C/w. 2556/2011 Ex.P.6(a) Notice Ex.P.7 Certificate of khatha Ex.P.8 Khatha extract Ex.P.9 & Ex.P.10 Encumbrance certificates Ex.P.11 Tax paid receipt Ex.P.12 Registered mortgage deed dated 27.08.1975 Ex.P.13 Registered mortgage deed dated 20.05.1981 Ex.P.14 to Ex.P.17 Promissory note with receipts Ex.P.18 Invitation card Ex.P.19 to Ex.P.113 Cash bills Ex.P.114 Dairy Ex.P.115 Judgment copy in O.S.317/2012 Ex.P.116 Certified copy of the Execution Petition 2590/13 Ex.P.117 Certified copy of the delivery warrant with report Ex.P.118 House Warming ceremony card Ex.P.119 Photo List of witnesses examined on behalf of defendant :
D.W.1 Smt.Vijayalakshmi D.W.2 Smt.Gayathri 51 O.S.No.6482/2008 C/w. 2556/2011 List of documents exhibited on behalf of defendant : Ex.D.1 Certified copy of the Sale Deed Ex.D.2 Certified copy of the Sale Deed XIV ADDL.CITY CIVIL JUDGE BANGALORE