Bangalore District Court
Sri.Abbaiah vs Smt.Thimmakka on 2 January, 2019
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 2nd day of January, 2019.
Present:
Smt.Maheshwari.S.Hiremath, B.A., LL.B.(Spl.)
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
ORIGINAL SUIT NO.2119 of 2003
Plaintiff Sri.Abbaiah,
S/o late Puttappa,
Aged about 53 years,
Residing at Bellanduru village,
Bangalore East Taluk and also
At Door No.24, Venkatappa Lane,
Doddamavali, Bangalore-4.
By S.Venkatesh, Advocate.
Vs.
Defendants 1. Smt.Thimmakka, Aged about 70
years, W/o late Puttappa,
2. Sri.Muniswamy s/o late Puttappa,
Aged about 48 years,
3. Sri.Nagaraj, s/o late Puttappa, Aged
about 46 years,
4. Sri.Prakash, s/o late Puttappa, Aged
about 44 years,
5. Sri.Raja, s/o late Puttappa, Aged
about 42 years,
6. Harish, s/o late Puttappa, Aged
about 38 years,
7. Umashankar, s/o late Puttappa,
Aged about 26 years,
2 O.S.No.2119/2003
Since died on 20.1.2015, plaintiff and
defendants Nos.2 to 6 and 8 to 10 are the
only legal heirs of defendant No.7.
8. Smt.Shanthamma, d/o late
Puttappa, Aged about 50 years,
9. Smt.Pushpa, d/o late Puttappa,
Aged about 40 years,
10. Smt.Yashoda, D/o late
Puttappa, Aged about 34 years,
All are r/at Bellanduru village, Varthur
Hobli, Bangalore East Taluk.
(Sri.Sri.H.S.C for D.1, D.2
Sri.TVS for D.4, 8, Sri.TAS for D.9
D.7- Dead, Defendants Nos.3, 5, 6,
10- Exparte
Date of institution of suit 24.03.2003
Nature of the suit Partition
Date of commencement of 18.06.2004
recording of evidence
Date on which Judgment 02.01.2019
was pronounced
Total duration Years Months Days
16 09 08
*****
3 O.S.No.2119/2003
JUDGEMENT
This suit is instituted for partition and separate possession.
The suit schedule properties are as under:-
1) Land bearing Sy.No.32/29, measuring 17 guntas, bounded on:-
East by : Nagappa Reddy's property
West by : Daari and property of Ramaiah Reddy
North by : Gramatana property
South by : Land belongs to joint family property
of Sy.No.32/27.
2) Sy.No.32/27, measuring 16 guntas, bounded on:-
East by : Property of Narayana Reddy,
West by : Daari and property of Ramaiah Reddy
North by : Sy.No.32/29,
South by : Muniveerappa's property
3) Land bearing Sy.No.29/1, measuring 23 guntas, bounded on:-
East by : Annayyappa's property
South by : Land of Muniveerappa
North by : Property of Papanna
South by : Sy.No.29/2
4) Land bearing Sy.No.29/2, measuring 18 guntas, bounded on:-
East by : Property of Annayyappa,
West by : Property of Muniveerappa
North by : Sy.No.29/1,
South by : Property of Muniveerappa
4 O.S.No.2119/2003
5) All that piece and parcel of house property bearing Katha No.309, measuring East to West 30 feet and North to South 40 feet consisting of ground and 1st floor bounded on:-
East by : Munireddy's property
West by : Annayyappa's property
North by : Road and
South by : Private property
6) House property bearing Katha No.316, measuring 30 x 40 feet consisting of ground, 1st and 2nd floor, bounded on:-
East by : Property of Munireddy
West by : Pillaiah's property
North by : Munireddy's property
South by : Road
2. The brief facts of the case are as under:-
The plaintiff is the son of late Puttappa and Defendant No.1 is the wife of late Puttappa and defendants Nos.2 to 7 are sons and 8 to 10 are daughters of late Puttappa. Their genealogical tree is as under:-
Sri.Puttappa and his wife Smt.Thimmakka, Aged 70 years and their children
1) Abbayappa, aged about 53 years, His wife Smt.Tolasamma, aged about 44 years, and their children
i) Mani, aged about 26 years
ii) Prasad, aged about 24 years 5 O.S.No.2119/2003
iii) Sathisha aged about 22 years
iv) Usha, aged about 21 years
2) Smt.Shanthamma, aged about 50 years
3) Sri.Muniswamy, aged about 48 years
4) Sri.Nagaraj, aged about 46 years
5) Sri.Prakash, aged about 44 years
6) Sri.Raja, aged about 42 years
7) Smt.Pushpa, aged about 40 years
8) Sri.Harish, aged about 38 years
9) Sri.Umashankar, aged about 36 years
10) Smt.Yashoda, aged about 34 years.
Said late Puttapa died intestate on 9.5.1998.
3. There is no partition in their family. Said late Puttappa has purchased the suit schedule properties. Accordingly, his name came to be entered in the concerned revenue documents. After his death, name of 1st defendant with the consent of plaintiff and other defendants came to be entered in all the revenue records since she is a elder female member of the family. Even, after the death of late Puttappa, the suit schedule properties are in joint possession and enjoyment of the plaintiff and defendants. 6 O.S.No.2119/2003
4. Defendant No.1 is the Puppet at the hands of the defendants Nos.2 to 5 and defendants Nos.1 to 5 are mismanaging the affairs of the joint family properties and started acting detrimental to the interest of the plaintiff. The 1st defendant at the instigation of defendants Nos.2 to 5 has executed documents in favour of one Prasad in respect of Sy.No. 60/6 of Bellandur village measuring 09 guntas and also Sy.No.62 measuring 1 acre 20 guntas in favour of Sridharan, assuring the plaintiff to pay the sale consideration of his shares, out of the sale proceeds. But the 1st defendant has not paid the share of the plaintiff inspite of repeated requests and demands.
5. Apart from the suit schedule properties, the aforesaid two properties bearing Sy.Nos.60/6 and 62 were also self acquired properties of the father of the plaintiff. In this connection, the said properties were sold by the 1st defendant for substantial sale consideration in favour of above said persons and 1st defendant had obtained the signatures of the plaintiff and his son and other family 7 O.S.No.2119/2003 members assuring that the 1st defendant would pay the share of the plaintiff in the sale consideration, but so far she has not paid any amount and as such the share of the plaintiff in the suit schedule property in proportionate to the share of the sale consideration received by the 1st defendant and to that effect the share of the 1st defendant has to be reduced.
6. When the 1st defendant with the collusion of defendants Nos.2 to 5 has acted detrimental to the interest of the plaintiff, the plaintiff has demanded the share in the properties which has been sold by the 1st defendant as stated above and also in the suit schedule properties, the 1st defendant has given evasive replies and further threatened to the plaintiff to dispose off the suit schedule properties including the share of the plaintiff, instead of dividing the suit schedule properties by metes and bounds. The defendants taking undue advantage of the revenue entries standing in the name of 1st defendant failed and denied to effect partition.
8 O.S.No.2119/2003
7. All the title deeds of suit schedule properties are in the custody of the defendants Nos.1 to 5. Hence the plaintiff is unable to get the exact details of those properties. The defendants Nos.1 to 5 are using the usufructs of the joint family without giving share of the plaintiff. Hence he is entitled for mesne profits. Hence, this suit.
8. In pursuance of suit summons, the defendants Nos.1, 2, 4, 8 and 9 have appeared before the Court through their respective counsels. Defendants Nos.1, 2 and 9 have filed their separate written statements. Defendants Nos.3, 5, 6 and 10 have not appeared before the Court. Hence, placed ex-parte. Defendant No.7 was abated.
9. Written statement of defendant Nos.1 and 2 is as under:-
They have denied some of the averments narrated in the plaint as false. According to them, age of the parties and address of the plaintiff as shown in the cause title is not correct. Similarly the description of the defendants as shown in the cause title is not correct. The plaintiff has not been a resident of Belandur village at any time.9 O.S.No.2119/2003
10. Defendant No.4 is not the elder brother of defendants Nos.5, 7 and 9 and like wise, 5th defendant is not younger brother of 4th defendant, and elder brother of 4th defendant and 7th defendant was not the younger brother of 4th and 5th defendants, and 6th defendant is not the elder brother of 7th defendant, and the plaintiff has given the ages of defendants Nos.2 to 10 in order to propinquity without knowing the basic fact that who are all elder brothers and who are all younger brothers, and in what propinquity defendants Nos.2 to 10 were born, and it is pertinent to note that, 7th defendant Umashankar was mentally retorted person and was unable to move about and he ought to have been represented by a guardian, and the plaintiff has not taken any steps in this regard, as he is totally unaware of the physical and mental capacity of 7th defendant at the time of filing of the above suit. No-doubt he died in the year 2004 itself and this fact was brought to the notice of this Court by the plaintiff in the year 2010 for a simple reason that the plaintiff himself was not aware of these facts, and 10 O.S.No.2119/2003 when the plaintiff himself is not aware of these facts, the question of plaintiff knowing about the flow of title to the suit schedule properties and earlier transactions that had been taken place much earlier to filing of the above false suit doesn't arise, and the plaintiff without knowing the real facts has blindly filed the suit in order to make wrongful gain and to harass these defendants.
11. Further, it is contended that, address of the defendants Nos.8 to 10 as shown in the cause title is not correct and after their marriage, they are residing separately at their respective husband's houses and they are not residing in Bellandur village and plaintiff has not given the names of their husbands. The said act of the plaintiff reveals that the plaintiff is totally unaware, regarding any particulars pertaining to the performance of marriage of female defendants Nos.8 to 10 and their husbands name and as such contention of the plaintiff that he is a joint family member and the suit schedule properties are joint family 11 O.S.No.2119/2003 properties is nothing but a bald and vague statement made by the plaintiff.
12. The suit schedule properties are not the joint family properties and the plaintiff is not at all in possession and enjoyment of the suit schedule properties, and plaintiff has made a convenient statement as he is in joint possession with malafide intention and ulterior motives, with a sole intention to avoid payment of Court fee on the market value of the suit schedule properties. When the plaintiff himself is not the resident of Bellandur village and not a member of the alleged joint family, the question of plaintiff's family are in joint estate doesn't arise. The plaintiff is deliberately not disclosed the material fact that, who are the predecessors of both parties who said to have acquired the properties as alleged by the plaintiff and what are the properties that have been allegedly acquired by them and what was the mode of such alleged acquisition, and when those properties were alleged acquired by then, etc., and these defendants hereby called upon the plaintiff to furnish these particulars and soon 12 O.S.No.2119/2003 after receipt of the same, these defendants reserve their right to file additional written statement.
13. The plaintiff has vaguely stated that, properties bearing Sy.Nos.32/29, 29/1, 29/2, 60/6, 62, House bearing Katha No.316, are self acquired properties of father of defendants Nos.2 to 10 and he has deliberately not disclosed the material fact regarding the mode of acquisition of these properties, and when those properties were allegedly acquired by him and from whom, and the source for the said acquisition, and the plaintiff is hereby called upon to furnish the particulars of the same and soon after receipt of the said particulars, this defendant No.1 reserves her right to file additional written statement. The husband of 1st defendant and father of 2nd defendant Puttappa is not a proper native of Bellandur, and Puttappa was married to 1st defendant and settled in Bellandur as he had no avocation of his own and the 1st defendant with the help of his parents started milk vending business, by raring cows and female buffalos and use to grow and sell greens after her marriage to maintain 13 O.S.No.2119/2003 her family, and she has purchased the item No.4 of the suit schedule property in the year 1957 itself and item No.2 of the suit schedule property in the year 1961 out of her own income and the sale deeds were drawn in her name, and these properties are her self acquired properties and the plaintiff is nothing to do with these properties, and after purchasing these lands, apart from the said milk vending by raring cows and female buffalos, and selling greens, she was cultivating lands and subsequently she had purchased item No.1 of the suit schedule property under 3 sale deeds, i.e 5 guntas, 4 guntas in the year 1978, and 8 guntas in the year 1980 for a valuable sale consideration and the sale deeds were drawn in the name of husband of 1st defendant and in the year 1975 item No.3 was also purchased by the 1st defendant for a valuable sale consideration and the sale deed was drawn in the name of husband of 1st defendant and in the year 1978 item No.5 was also purchased by the 1st defendant for a valuable sale consideration amount and the sale deed was drawn in the name of husband of 1st 14 O.S.No.2119/2003 defendant and in the year 1989 item No.6 was also purchased for a valuable sale consideration and the sale deed was drawn in the name of husband of 1st defendant, and at the time of purchase of these properties, the plaintiff was not residing along with the defendants, and plaintiff has not contributed anything for purchase of any of the suit schedule properties and subsequent purchase of said agricultural lands, defendants Nos.2 to 6 have leveled the land by filling heavy ditches, and dug wells in Sy.No.29/1 and 29/2 and further developed the lands by investing lakhs of rupees and in the residential sites purchased as aforesaid, they have constructed residential houses by investing lakhs of rupees out of their income and by raising private loans from friends and relatives and are in exclusive possession and enjoyment of the same and plaintiff is nothing to do with the same, and the plaintiff deliberately suppressed these material facts, before this with malafide intention and ulterior motives, in order to make wrongful gain and to harass these defendants.
15 O.S.No.2119/2003
14. Further, it is contended that when the plaintiff is not at all residing in Bellandur and he is in possession and enjoyment of the suit schedule properties does not arise and the address of the plaintiff as shown in the cause title he is residing at Doddamavalli, and the statement regarding joint possession and enjoyment made by the plaintiff is nothing but a fairy tale story woven for the purpose of this case, and the plaintiff is put to strict proof regarding his joint possession over the suit schedule properties. There was already a partition between the sons of Puttappa long back, in respect of the properties purchased by them as stated supra, and have put up residential construction in the properties allotted to their share and are in possession and enjoyment of the same without any sort of hindrance, interruption from anybody exercising all rights of ownership to the exclusion of others, and the plaintiff by suppressing these facts has filed the above suit with malafide intention and ulterior motives with a sole intention to make wrongful 16 O.S.No.2119/2003 gains and to harass these defendants and to defraud these defendants.
15. Further, one Mr.B.K.Venugopala Reddy filed a suit bearing O.S.No.5766/2009, on the file of Addl.City Civil Judge, at Bangalore, (CCH-44), for partition and separate possession of the property bearing Sy.No.32/29, of Bellandur village, Varthur Hobli, Bangalore South Taluk i.e, item No.1 of the suit schedule property, against the 2nd defendant herein and others and the same is pending for adjudication. The plaintiff has deliberately and wantedly suppressed the pendency of the above suit, hence both suits are required to be clubbed and tried together for proper adjudication of the matter. In case both suits are not clubbed and tried together, the decisions of both the courts will be divergent and it will lead to multiplicity of proceedings. The plaintiff has deliberately not made the other parties of O.S.No.5766/2009, pending before Addl.City Civil Judge, at Bangalore (CCH-44) pertaining to item No.1 of the suit 17 O.S.No.2119/2003 schedule property, are not made as parties to this suit, and hence the suit is bad for non-joinder of necessary parties.
16. Further, it is contended that, one 1) Mrs.Manjula, d/o Narayana Reddy, w/o K.P.Mahadeva Reddy, No.801, Classical Residency, Chikka Begur main road, AECS Layout, Bangalore-560 103 (2) Mrs.Dakshayani d/o Narayana Reddy, w/o N.Venkatesh Redy, No.505/2, Arakere village, Samruthi Layout, Bangalore-560 076 and (3)Mrs.Vaveena, d/o Narayana Reddy, w/o Sreenivasa Reddy, No.79, Pilla Reddy Lane, Murugesh Palya, Bangalore-17, have filed a suit bearing O.S.No.5023/2011on the file of Addl.City Civil Judge, at Bangalore, (CCH-44) for partition and separate possession claiming their 1/5th share in the property bearing Sy.No.32/29, of Bellandur village, Varthur Hobli, Bangalore South Taluk, ie., item No.1 of the suit schedule property, and for permanent injunction restraining the defendants from creating any 3rd party charge over the same, against the 2nd defendant herein and others and the same is pending for adjudication.
18 O.S.No.2119/2003
17. Apart from the plaintiff herein, three are other persons who are also ascertaining their title, and claiming their individual and exclusive rights and share in the 1st item of suit schedule property, by filing different suits as state above, and the plaintiff has deliberately suppressed these facts. The plaintiff has deliberately not made the plaintiffs of O.S.No.5023/2011 i.e, (1) Mrs.Manjula, Smt.Dakshayani, Mrs.Vaveena as parties to this suit and hence the suit is bad for non-joinder of necessary parties.
18. The plaintiff has given imaginary boundaries to the suit schedule properties and also regarding the extent of the suit schedule properties. The 1st son of 1st defendant has left the companion of his parents long back and has settled his life at Doddamavalli and he has nothing to do with the suit schedule properties and the family of these defendants. Court fee paid is insufficient. Hence, prayed to dismiss the suit with costs.
19 O.S.No.2119/2003
19.Written statement of defendant No.9 is as under:-
She has denied some of the averments narrated in the plaint as false. According to her, the suit schedule properties are not joint family properties and plaintiff by creating false relationship is intended to obtain a decree to knock off the properties of the defendants.
20. It is further contended that, plaintiff has vaguely stated that, suit schedule properties are self acquired property of father of this defendant and he has not disclosed when these properties were acquired and by what mode and the plaintiff is hereby called upon to furnish the particulars of the same, and soon after receipt of the said particulars, this defendant reserves her right to file additional written statement.
21. The father of the plaintiff during his life time, he was not doing any work and is suffering from ill-health, and his sons, who have purchased the suit schedule properties out of their hard earned money and the sale deeds were drawn in the name of their father, as their father being the 20 O.S.No.2119/2003 elder male member of the family, and the 1st defendant has also invested for purchase of the said property by selling her jewels and gold and silver ornaments given by her parents, and as the sale deeds were drawn in the name of the father of this defendant, he can't became the absolute owner of the properties, and at the time of purchase of said properties, defendants Nos.2 to 7 have leveled by filing heavy ditches, and developed the lands by investing lakhs of rupees and in the residential sites purchased by them, they have constructed residential houses, by investing lakhs of rupees, and are in possession and enjoyment of the same, and the plaintiff deliberately suppressed these materials facts.
22. Further it is contended that, sons of late Puttappa have purchased the said properties, and the sale deeds were drawn in the name of Puttappa, and they have partitioned the properties and are in exclusive possession and enjoyment of the portion of properties allotted to their share, and as such the question of mismanagement and the 21 O.S.No.2119/2003 1st defendant is a poppet in the hands of defendants Nos.2 to 5 is far away from truth.
23. There is a already a partition between the sons of Puttappa long back, in respect of the properties purchased by them and have put up residential construction in the properties allotted to their share and are in possession and enjoyment of the same without any sort of hindrance, interruption from anybody exercising all rights of ownership to the exclusion of others, and the plaintiff by suppressing these facts has filed the above suit with malafide intention and ulterior motives with a sole intention to make wrongful gains and to harass this defendant.
24. It is further contended that, there is another suit bearing O.S.No.5766/2009 filed by one Mr.B.K.Venugopala Reddy and another against 2nd defendant and others is pending before the Addl.City Civil Judge, at Bangalore, (CCH-
44), pertaining to some of the suit schedule properties, claiming for a partition and separate possession of suit schedule properties, and plaintiff has deliberately suppressed 22 O.S.No.2119/2003 these material facts and hence both suits are required to be tried together for proper adjudication of the matter and to avoid multiplicity of proceedings. The plaintiff has deliberately not made the other parties of O.S.No.5766/2009, pertaining to the some of the suit schedule properties. Hence the suit is bad for non-joinder and mis-joinder of parties. Court fee paid is insufficient. Hence, prayed to dismiss the suit with costs.
25. My Predecessor in-office had framed the following:-
-:ISSUES:-
1) Whether the plaintiff proves that suit properties are undivided ancestral properties of plaintiff and defendants Nos.1 to 10?
2) Whether the plaintiff has a share in the suit properties?
3) Whether plaintiff is entitled for mesne profits?
4) Whether defendant No.9 proves the prior partition alleged at Para-9 of the written statement?
5) Whether suit is bad for non-joinder of necessary parties?23 O.S.No.2119/2003
6) What Decree or Order?
Additional issues framed on 1.8.2011
7) Whether defendants Nos.1 and 2 prove that suit item Nos.2 to 6 are self acquisitions of defendant No.1?
8) Whether defendant No.1 and 2 prove that Court fee paid is insufficient?
26. To prove the case, plaintiff himself examined as P.W.1 and got marked 20 documents as Exs.P.1 to P.20. Exs.P.21 to 23 were got marked under confrontation during the cross-examination of D.W.1 who is 2nd defendant and got marked 13 documents as Exs.D.1 to 13.
27. Heard arguments on both the sides.
28. My findings on the above Issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : Does not survive for consideration Issue No.4 : In the Negative Issue No.5 : In the Negative Additional Issue No.7 : In the Negative Additional Issue No.8 : In the Negative 24 O.S.No.2119/2003 Issue No.6 : As per final order for the following:
REASONS
29.My findings on issue Nos.1, 4 and 7:- Since all these issues relate to nature of suit schedule properties, they are been discussed together.
P.W.1 -Abbaiah has reiterated the contents of plaint in his examination-in-chief. During the course of his cross- examination, he has stated that, he is a tenant at door No.24 Venkatappa Lane, Dodda Mavalli, Bengaluru-4 since 8 years and he is also residing at Bellandur. Before that, he was residing at Bellandur only. Further he has stated regarding his marriage, birth of 4 children and their education. Further, he has stated that, there is no recording of his name and the name of his children in the ration card of his parent-in- laws. But name of his wife is there in the said ration card and till the death of his parent-in-laws he was cordial with them. He had voter's ID card at Bellandur during 1972-73 and he has not enquired about removal of his name there 25 O.S.No.2119/2003 after he got his voters ID at Mavalli area. He has not produced any documents to show that, he was residing at Bellandur at that time. He has denied the suggestion that, after his marriage, he started permanently residing with his parent-in-laws by assisting his father-in-law at his workshop and that he got his children educated in the area of Mavalli only and given address of Mavalli in the school records.
30. Further he has stated that, his grandfather's name is Muniswamappa who had only one son by name Puttappa and his father is from Thogur who had only one ancestral property at Thogur. He does not know the survey number of said land, but it was measuring 2 acres and he has not included the said land in this suit as joint family property. His father has sold the said land during his life time, but he does not know when it was sold. He has admitted that, his father settled at Bellandur after marrying defendant No.1. The name of father of 1st defendant is Muniyappa and name of 1st wife of Muniyappa is Chinniramamma and 2nd wife is Muniyamma. Chinnamma 26 O.S.No.2119/2003 had children by name Smt.Thimmakka, Tayappa, Krishnamma and Smt.Yellamma. Sri.Thayappa is also called by name Doddatayappa. Plaintiff has married one Smt.Tulasamma, d/o Doddatayappa who is residing in Mavalli since beginning and said Doddatayappa had no male issues. Further he has stated that, defendant No.1 has 10 children including himself. He has admitted that defendant No.7 is mentally unsound and Umashankar died about 7 years back. Further he has stated that, his grand father had purchased the suit schedule properties.
31. In support of his claim, he has produced 20 documents such as Ex.P.1 is Genealogical tree of late Puttappa. Ex.P.2 is RTC extract for the year 2001-2002 in respect of Sy.No.82 standing in the name of late Puttappa, s/o Munishamappa.
Exs.P.3 to 5 are Mutation register copies No.1782/78- 79 standing in the name of Puttappa.
Ex.P.6 is certified copy of Sale Deed dt.4.10.1978 executed by B.N.Krishna Reddy, s/o Nagappa and his sons 27 O.S.No.2119/2003 Venugopal, Anand who are minors in favour of Puttappa in respect of Sy.No.32/29.
Ex.P.7 is certified copy of Sale Deed dt.4.23.1980 executed by Narayana Reddy and his son Venkatesh in favour of Puttappa in respect of Sy.No.32/29 of Belanduru grama.
Ex.P.8 is RTC extract for the year 2001-2002 in respect of Sy.No.32 standing in the name of Smt.Thimmakka w/o Puttappa Ex.P.9 is RTC extract for the year 2001-2002 in respect of Sy.No.29/1 standing in the names of Yellappa, Puttappa s/o Munishamappa.
Ex.P.10 is mutation register extract standing in the name of late Puttappa.
Ex.P.11 is RTC extracts for the year 2001-2002 of Sy.No.29 standing in the name of Smt.Thimmakka Ex.P.12 is mutation register extract of Sy.No.60 standing in the name of Chikkamunishami Reddy, Puttappa and B.P.Chandrashekar.
Ex.P.13 is RTC pertains to Sy.No.60/6 for the year 2001-2002 standing in the name of Venkatappa, Puttappa and B.P.Chandrashekar.
28 O.S.No.2119/2003
Ex.P.14 is certified copy of the sale deed dt.23.1.2003 executed by Smt.Thimmakka, Sri.Abbaiah, Sri.Muniswamy, Sri.Nagaraj, Sri.Rajanna, Sri.Prakash, Sri.harish, Smt.Shantha, Smt.Pushpa, Smt.Yashodha, Suresh and Prasad in favour of Mr.C.Sreedharan in respect of Sy.No.62 measuring 1 acre 20 guntas including 0-03 guntas Karab situated at Bellandur village, Varthur Hobli, Bangalore South Taluk.
Ex.P.15 is RTC extract pertains to Sy.No.62 for the year 2002-2003 standing in the name of Smt.Thimmakka.
Exs.P.16 to 18 are certified copies of award notice dtd.5.7.2005 issued by KIADB and Ex.P.19 is certified copy of award details.
Ex.P20 is certified copy of the letter dt.17.4.2006 written by Special LAO to the Registrar, City Civil Court.
(Ex.P.20 is marked twice by oversight) Ex.P.21 and 22 are photographs (Ex.P.22 is marked twice by oversight) Ex.P.23 is Order sheet and award copy in LAC No.80/2006.
(Exs.P.21 to 23 were marked during confrontation during cross-examination of P.W.1).
29 O.S.No.2119/2003
32. D.w.1 - Sri.Muniswamy has stuck to his defence taken in the written statement during his examination-in- chief. In the course of his cross-examination, he has stated that, he does not know the dates of birth of plaintiff and defendants Nos.2 to 6 as well as defendants Nos.8 to 10. Their 8 family members have signed on Ex.P.14/Sale Deed. He has denied that plaintiff was party to Ex.P.14/ Sale Deed. He does not know whether any amount was paid out of sale consideration of Ex.P.14 to the plaintiff. He has not given any amount to the plaintiff. There was no partition in their family during the life time of their father and after the death of their father, name of their mother was entered to the suit schedule properties. His mother has executed Gift Deed dt.07.10.2003 as per Ex.D.8 during the pendency of this suit. He has not produced any records to show that defendant No.7 is mentally unsound. Defendants Nos.8, 9 and 10 have not relinquished their rights in the suit schedule properties in writing. He has not produced any records to show that, his father was suffering from ill-ness. He has admitted that, 30 O.S.No.2119/2003 native place of his father is Dodda Thogur. He has denied that his father has purchased the properties in the name of their mother and that their mother was not doing milk vending business who was only house maker. In LAC No.80/2006 he has not appeared. He has admitted that, there is a award of Rs.8,42,692/- passed in the said case. Further he has stated that, he does not remember when plaintiff has left their house.
33. In support of his defence, he has produced in all 13 documents, such as Ex.D.1 and 2 are photographs Ex.D.3 is notice issued by KIADB dt.24.7.2004 Ex.D.4 to 7 are RTC extracts pertains to Sy.Nos.29/1, 29/2, 32/27 and 32/29 respectively for the year 2010-2011 standing in the names of Muniswamy and K.I.A.D.B Ex.D.8 is Gift Deed dt.7.10.2003 executed by Smt.Thimmakka, w/o Puttappa in favour of Muniswamy in respect of Sy.No.32/27 of Bellandur village.
Ex.D.9 is original sale deed dt.2.9.1957 executed by Sri.Narayanappa s/o Muniyappa @ Chikkapillappa in favour of Smt.Thimmakka, w/o Puttappa in respect of Sy.No. 29/2 31 O.S.No.2119/2003 measuring 18 guntas situated at Bellandur Grama, Varthur Hobli, Bangalore South Taluk.
Ex.D.10 is original sale deed dt.14.7.1961 executed by Muninanjappa and his wife Smt.Venkatamma and their children Lakshmaiah in favour of Smt.Thimmmakka, w/o late Puttappa, s/o Munishamappa in respect of Sy.No. 32/27 situated at Bellandur Grama, Varthur Hobli, Bangalore South Taluk.
Ex.D.11 is original sale deed dt.02.03.1978 executed by Sri.Krishna Reddy.B.N, s/o Nagappa and his children Venugopal, Ananda in favour of late Puttappa, s/o Munishamappa in respect of Sy.No. 32/29 situated at Bellandur Grama, Varthur Hobli, Bangalore South Taluk.
Ex.D.12 is original sale deed dt.04.10.1978 executed by Sri.Krishna Reddy.B.N, s/o Nagappa and his children Venugopal, Ananda in favour of late Puttappa, s/o Munishamappa in respect of Sy.No. 32/29 situated at Bellandur Grama, Varthur Hobli, Bangalore South Taluk.
Ex.D.13 is original sale deed dt.23.4.1989 executed by Narayana Reddy and his son Venkatesh in favour of late Puttappa, s/o Munishamappa in respect of Sy.No. 32/29 situated at Bellandur Grama, Varthur Hobli, Bangalore South Taluk.
32 O.S.No.2119/2003
34. According to plaintiff, suit schedule properties are self acquired properties of late Sri.Puttappa and there is no partition amongst the heirs of Sri.Puttappa. As against this, defendant No.9 has taken up contention that, there is partition amongst children of late Puttappa long back and therefore, question of partition doesn't arise. Defendants Nos.1 and 2 have taken up totally different contention to the effect that, item Nos.2 to 6 are self acquisition of defendant No.1.
35. It is not in dispute that, suit schedule properties are self acquired properties in as much as they are purchased from different persons at different points of time either in the name of late Puttappa or Smt.Thimmakka. Now the question is whether they were acquired out of income of Puttappa or Smt.Thimmakka. Though defendants Nos.1 and 2 taken up contention that, Smt.Thimmakka had acquired suit schedule properties by her own income in the name of her husband or in her own name, there is absolutely no material to infer that Smt.Thimmakka was having any 33 O.S.No.2119/2003 income from milk vending, sale of vegetables etc., or to infer that Sri.Puttappa had no source of income at all, as contended by defendants Nos.1 and 2 nor there is any material to show that, Smt.Thimmakka had acquired the suit schedule properties by out of sale proceeds of her gold ornaments and silver articles as contended by defendant No.9. Therefore, it can be safely concluded that, the suit schedule properties are acquired out of income of Sri.Puttappa himself. However, some of the properties are acquired in his own name and some of the properties are purchased in the name of defendant No.1.
36. Though, defendants tried to dispute the very relationship of plaintiff with their family in cross-examination of D.W.1, he has admitted that plaintiff is the son of late Sri.Puttappa and he had been residing at Doddamavalli since long time at the parental house of his wife. Thus, it becomes clear that, plaintiff is the son of late Sri.Puttappa. In the absence of any material to show that, suit schedule properties were acquired by Smt.Thimmakka out of her own 34 O.S.No.2119/2003 income, it goes without saying that suit schedule properties were acquired out of the income of Sri.Puttappa irrespective of the name of the buyer appearing in concerned sale deeds.
37. As far as contention of previous partition is concerned, here also except bald contention of defendants, that already there was partition amongst children of Puttappa, there are no materials to accept this contention. Therefore, in my considered view, plaintiff has established the nature of the suit schedule properties to be self acquired properties of Sri.Puttappa.
38. On the other hand, defendants have failed to demonstrate that, suit schedule properties were acquired by defendant No.1 or that there was previous partition amongst the legal representative of late Puttappa. Hence, I answer these issues accordingly.
39.My findings on issue No.5:- The defendants have taken up contention that, suit is bad for non-joinder of necessary parties in as much as parties in O.S.No.5766/2009 and O.S.No.5023/2011, wherein Sy.No.32/29 is the schedule 35 O.S.No.2119/2003 property. However, defendants have not furnished copy of either the plaint or written statement of these suits as to convince this Court as to the validity of their contention as to non-joinder of necessary parties. Therefore, in the absence of any supporting documents, I am of the opinion that, defendants have failed to prove this issue. Hence, I answer this issue in the Negative.
40.My findings on issue No.8:- Defendants Nos.1 and 2 have taken up contention that, Court fee paid by plaintiff is insufficient in as much as he claims joint possession over the suit schedule properties situated at Belandur village, whereas he is residing in Doddamavalli village. Therefore, his contention as to joint possession over the suit schedule properties cannot be accepted. Hence, he has to pay Court fee on the market value of the suit schedule properties. But not the fixed Court fee as he has done here.
41. As already held above the nature of suit schedule properties are self acquired properties left behind by late 36 O.S.No.2119/2003 Puttappa. Though plaintiff was residing in Doddamavalli village, he shall be deemed to be in possession of suit schedule properties along with other sharers. Therefore, payment of fixed Court fee would sufficient, he need not pay Court fee on the market value which is applicable where the plaintiff is ousted or dispossessed from the possession of suit schedule properties. Therefore, contention of defendants Nos.1 and 2 that, Court fee paid is not sufficient is not tenable. This issue is answered accordingly.
42.My findings on issue Nos.2 and 3:- Since these issues relate to reliefs, they are taken up together for discussion.
As already held above, plaintiff has sufficiently established that, suit schedule properties are self acquired properties of his father late Sri.Puttappa and there is no partition amongst the legal representative of Sri.Puttappa.
43. On the other hand, defendants have failed to establish that, there was previous partition or that suit schedule properties were acquired by defendant No.1. 37 O.S.No.2119/2003 Therefore plaintiff is entitled for his legitimate share in the suit schedule properties under Section 8 of Hindu Succession Act, having regard to the fact that, they are self acquired properties of plaintiff.
44. As regards to the relief of mesne profits, it is to be noted that, defendants are holding undivided share of plaintiff for and on behalf of the whole family. Therefore question of granting mesne profits doesn't arise at all. Having held that, suit schedule properties are self acquired properties of late Sri.Puttappa, he having died intestate, his estate has to be apportioned amongst his legal representatives under Section 8 of Hindu Succession Act. In view of the same, all his Class-I heirs are entitled for equal share i.e, 1/11th share each. Hence, I answer these issues accordingly.
45.My findings on issue No.6:- In view of my findings on the above issues, I proceed to pass the following:
38 O.S.No.2119/2003
ORDER Suit is hereby decreed with costs.
Plaintiff is entitled for 1/11th share in the suit schedule properties by metes and bounds and he is entitled for separate possession thereof.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer directly on Computer and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 2nd day of January, 2019).
(Maheshwari.S.Hiremath) XXII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 Abbaiah List of documents exhibited for the plaintiff:
Ex.P1 Genealogical tree
Ex.P2 RTC extract
39 O.S.No.2119/2003
Exs.P.3 Mutation register copies
to 5
Ex.P.6 C/c of Sale Deed 4.10.1978;
Ex.P.6(a) Its typed copy
Ex.P.7 C/c of Sale Deed dt.23.4.1978
Ex.P.7(a) Its typed copy
Exs.P8, RTC extracts
9
Ex.P.10 Mutation register
Ex.P.11 RTC extract
Ex.p.12 Mutation register
Ex.P.13 RTC
Ex.P.14 C/c of Sale deed 23.1.2003
Ex.p.15 RTC extract
Exs.P.16 Certified copies of award notice to 18 dt.5.7.2005 Ex.P.19 Certified copy of award details Exs.P.20 Certified copy of the letter dt.17.4.2006 Exs.p.21, Photographs 22 Ex.P.23 Order sheet and award copy in LAC No.80/2006 List of witnesses examined for the plaintiff:
D.W.1 Muniswamy List of documents on behalf of defendants:
Exs.D.1, 2 Photographs Ex.D.3 Notice issued by KIADB Exs.D.4 to 7 RTC extracts Ex.D.8 Gift deed dt.7.10.2003 Ex.D.9 Original Sale Deed dt.2.9.1957 40 O.S.No.2119/2003 Ex.D.9(a) Its typed copy Ex.D.10 Original Sale Deed dt.14.7.1961 Ex.D.10(a) Its typed copy Ex.D.11 Original Sale Deed dt.2.3.1978 Ex.D.11(a) Its typed copy Ex.D.12 Original Sale Deed dt.4.10.1978 Ex.D.12(a) Its typed copy Ex.D.13 Original Sale Deed dt.23.4.1989 Ex.D.13(a) Its typed copy (Maheshwari.S.Hiremath) XXII Addl. City Civil & Sessions Judge, Bengaluru.41 O.S.No.2119/2003