Bangalore District Court
Kumar V vs Padmanabha V on 28 February, 2024
1 O.S.No.1592/2021
KABC010054102021
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCH.11)
Dated this the 28th day of February, 2024.
PRESENT: Sri. D.P. Kumara Swamy, B.Com., LL.M.,
(Name of the Presiding Judge)
O.S.NO.1592/2021
PLAINTIFF KUMAR V.,
Son of late R.Venkatesh
Aged about 46 years,
Residing at No.27,
Bhagirathi Layout,
Sampige Srinivasa Temple Road,
Behind karur Vyasa Bank,
Kumbalagodu,
Gollahalli, K.S.Town,
Bengaluru -560060.
[By Sri Nagaraj S. Jain, Advocate]
/Vs/
2 O.S.No.1592/2021
DEFENDANT 1. PADMANABHA V
son of late R.Venkatesh,
Aged about 54 years,
2. Smt.Shanthi
Wife of Sri Padmanabha V
Aged about 46 years.
Both defendant Nos.1 and 2 are
Residing at No.198,
Muneshwara Layout,
Kempapura, H A Farm Post,
Bengaluru -560024.
3. Smt.Kasturi @ Preethi,
D/o. Late R.Venkatesh,
Wife of P K Surendran,
Aged about 48 years,
Residing at No.107,
Anekal Road, Surya City,
Chandrapura, Anekal,
Bengaluru -560099.
4. Sri.Shreedhar R
son of late Rajashekar,
grandson of late R.Venkatesh
Aged about 29 years.
5. Miss Maheshwari R @ Mamatha
Daughter of late Rajashekar,
grand-daughter of R.Venkatesh
Aged about 33 years.
Both defendant Nos.5 and 6
are residing at No.2-66,
Sanooru Padavu House,
Kariyangala, Polali,
Dakshina Kannada-574219.
6. Sri Kiran Kumar,
3 O.S.No.1592/2021
Son of late Vijayalakshmi
Grandson of R.Venkatesh
aged about 38 years,
Residing at No.269, 6th Cross,
Kavika Layout,
Near Govt. Electricity Factor,
Bapujinagar,
Bengaluru -560026.
7. Chethan Kumar N.
Son of late Smt.Vijayalakshmi
Grandson of R.Venkatesh
aged about 30 years,
Residing at No.17,
1st cross, 1st Main Road,
Ganesha Temple,
Ayyappanagara,
K.R.Puram, Bengaluru -560036.
[D-1 and 2 by
Sri D.S.Ramesh Reddy,
Advocate]
[D-3 to D-7 by Sri.Arun Bhat,
Advocate]
Date of Institution of the suit : 03-03-2021
Nature of the Suit : Partition
Date of commencement of
recording of evidence : 08-03-2023
Date on which the Judgment
was pronounced : 28-02-2024
4 O.S.No.1592/2021
Year/s Month/s Day/s
Total Duration : 02 09 25
(D.P. KUMARA SWAMY)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This is a suit for : (i) declaration to the effect that the impugned sale deed dated 25-112019 is not binding on the share of the plaintiff ; (ii) for partition and separate possession ; and (iii) for such other and further relief in the fitness of facts and circumstances of the case on hand.
2. The pleaded facts of the case of the plaintiff may be stated to the following effect :
2.1 Site No.44 in Sy.No.4 of Kempapura Village, Yelahanka Hobli, Bengaluru North Taluk, Bengaluru City, ad-measuring 30 feet from East to West and 50 feet from North to South having a building on it 5 O.S.No.1592/2021 which is more fully described in the schedule of the plaint is the suit property.
2.2 The suit property and another site bearing site No.22 was owned by one Smt. Gowramma W/o Sri Ramaiah.. The said Smt. Gowramma had executed a General Power of Attorney with power to sell on 10-06-1988 in favour of one Sri Nali Ramaiah @ Ramaiah in respect of suit property and said another site bearing site No.22 for consideration.
2.3 Said Smt. Gowramma had also executed an affidavit dated 10-06-1988 in favour of said Sri Nali Ramaiah @ Ramaiah delivering possession of the suit property and also confirmed that she had sold the suit property in favour of said Sri Nali Ramaiah @ Ramaiah by receiving entire sale consideration amount from him.
2.4 Said Sri Nali Ramaiah @ Ramaiah S/o Nali Guruvaiah executed a GPA dated 22-10-1988 in 6 O.S.No.1592/2021 favour of one Sri R. Venkatesh S/o B.S. Ramaiah in respect of suit property. The said GPA dated 22-10-
1988 contains a clause for power to sell. In support of the said GPA dated 22-10-1988, said Sri Nali Ramaiah @ Ramaiah executed an affidavit in favour of said Sri R. Venkatesh confirming the sale of the suit property in favour of said Sri R. Venkatesh by receiving entire sale consideration amount of Rs.13,000/- and also for having delivered possession of the suit property in favour of said Sri R. Venkatesh.
2.5 Based on the said GPA dated 22-10-1988, the katha in respect of suit property was entered in the name of Sri R. Venkatesh by the City Municipal Council, Byatarayanapura, Bengaluru. Sri R. Venkatesh has paid betterment charges and also property taxes on 18-11-1997 and 19-11-1997 respectively. The property tax in respect of suit property has been paid regularly. After the suit property was purchased by said Sri R. Venkatesh it 7 O.S.No.1592/2021 was blended with the joint family properties and it was treated as joint family property. 2.6 Sri R. Venkatesh died while taking treatment at M.S. Ramaiah hospital, Bengaluru on 02-02-2021. His wife is also no more. Sri R. Venkatesh had three sons and two daughters. They are Sri Kumar V., (plaintiff), late Sri Rajashekar, Smt. Kasturi @ Preethi (defendant No.3), late Smt. Vijayalakshmi and Sri Padmanabha (the defendant No.1). The defendant No.2 Smt. Shanthi is the wife of the defendant No.1. The defendant No.4 Sri Shreedhar R., is the son and the defendant No.5 Miss. Maheshwari R @ Mamatha is the daughter of late Sri Rajashekar. The defendant No.6 Sri Kiran Kumar and defendant No.7 Sri Chethan Kumar N., are the sons of late Smt. Vijayalakshmi.
2.7 After the death of Sri R. Venkatesh, the plaintiff came to know through his relatives that in respect of suit property a document has been 8 O.S.No.1592/2021 created in favour of the defendant No.2. Thereafter, the plaintiff made searches in the office of the jurisdictional Sub-Registrar and found out that on 25-11-2019 a sale deed has been executed in respect of suit property in favour of the defendant No.2 falsely showing that the defendant No.2 has paid sale consideration amount of Rs.48 lakhs to Sri R. Venkatesh for his urgent needs. 2.8 During 2018 and onwards Sri R. Venkatesh was suffering from serious ailments including hearing problem, loss of memory, unusual behaviour etc., and he had undergone glaucoma surgery. The admission of Sri R. Venkatesh to M.S. Ramaiah hospital on 19-12-2020 was not informed to the plaintiff and other members of the joint family. Despite of non-cooperation from the defendants No.1 and 2, the plaintiff used to visit Sri R. Venkatesh frequently and he used to take care of him.
9 O.S.No.1592/20212.9 Since two small houses are situated in the suit property, it was not comfortable for residence of all the joint family members. Hence, the plaintiff started staying at Kengeri.
2.10 On coming to know about the impugned sale deed, the plaintiff approached the defendants No.1 and 2 and enquired about the impugned sale deed. But, however, the defendants No.1 and 2 gave an untenable and an evasive reply to the effect that Sri R. Venkatesh has executed the impugned sale deed in favour of the defendant No.2 to give effect to the GPA dated 22-10-1988. Sri R. Venkatesh never intended to execute another conveyance deed in favour of anyone much less the impugned sale deed in favour of the defendant No.2 in respect of suit property.
2.11 By taking undue advantage of the serious ailments of Sri R. Venkatesh by misrepresentation and by playing fraud on him, the defendants No.1 10 O.S.No.1592/2021 and 2 have got created the impugned sale deed in respect of suit property in favour of the defendant No.2. Undue influence is also made by the defendants No.1 and 2 while getting executed the impugned sale deed.
2.12 The impugned sale deed is not binding on the legitimate share of the plaintiff in the suit property. The plaintiff is having 1/5th share in the suit property.
2.13 The defendants No.1 and 2 are trying to deny the plaintiff's legitimate share over the suit property. The defendants No.1 and 2 have misappropriated the gold ornaments belonging to Sri R. Venkatesh and his wife. The defendants No.1 and 2 have illegally used the money of Sri R. Venkatesh in his Bank account by creating a joint account. The defendants No.1 and 2 have also misused the pension amount of Sri R. Venkatesh. 11 O.S.No.1592/2021 2.14 The defendants No.1 and 2 have used money of Sri R. Venkatesh for payment of stamp duty and registration fee for getting executed the impugned sale deed. The alleged sale consideration amount of Rs.48 lakhs was not paid by the defendants No.1 and 2 to Sri R. Venkatesh. The The plaintiff met the defendants No.1 and 2 on 12-02-2021 and demanded for his share in the suit property. The defendants No.1 and 2 have declined to divide the suit property and to give to the plaintiff his legitimate 1/5th share in the suit property. 2.15 Regarding fraud, misappropriation and undue influence as stated above, the plaintiff has given a complaint before the Amruthahalli Police against the defendants No.1 and 2. The said police have issued acknowledgment. But, however, the said police have not taken effective steps against the defendants No.1 and 2.
12 O.S.No.1592/20212.16 The above are the facts constituting cause of action for the suit. Hence, this suit.
3. The defendants No.3 to 7 have filed their consent written statement admitting all the pleaded facts of the case of the plaintiff and sought for decreeing the suit as prayed in the plaint. The defendants No.3 to 7 have also sought for allotting the respective shares of the defendants No.3 to 7 to the defendants No.3 to 7.
4. The defendant No.1 has filed written statement and a Memo is filed to the effect that the defendant No.2 adopts the said written statement. The pleaded facts of the case of the defendants No.1 and 2 may be stated to the following effect :
4.1 The following facts are admitted by the defendant No.2.13 O.S.No.1592/2021
4.1-A It is true that the suit property originally belonged to said Smt. Gowramma.
4.1-B It is also admitted that said Smt. Gowramma had executed said GPA and affidavit both dated 10-06-1988 in respect of suit property and another site bearing site No.22 in favour of Sri Nali Ramaiah @ Ramaiah.
4.1-C It is also admitted that said Sri Nali Ramaiah @ Ramaiah has executed said GPA and affidavit both dated 22-10-1988 in respect of said Sri R. Venkatesh in respect of suit property.
4.1-D It is also admitted that after execution of said GPA and affidavit dated 22-10-1988 and based on the said two documents the revenue entries were made in the name of said Sri R. Venkatesh.
Payment of betterment charges and property taxes is also admitted.
14 O.S.No.1592/20214.1-E The relationship between Sri R. Venkatesh and the plaintiffs and the defendants is also admitted. The fact that Sri R. Venkatesh, his wife Smt. Indiramma, his son Sri Rajashekar, and his daughter Smt. Vijayalakshmi are dead is also admitted.
4.2 The allegation against the defendants No.1 and 2 to the effect that the defendants No.1 and 2 have played fraud, misrepresentation and undue influence over Sri R. Venkatesh and took undue advantage of his ailments and got created the impugned sale deed is categorically denied. 4.3 In fact, to meet his medical expenses Sri R. Venkatesh has executed the impugned sale deed in respect of suit property in favour of the defendant No.2. The defendant No.2 has paid the sale consideration amount which she obtained as Arishina Kunkuma from her parents. 15 O.S.No.1592/2021 4.4 The defendant No.2 is the absolute owner in possession of the suit property. Sri R. Venkatesh had held other properties also. The plaintiff has not included the other properties held by Sri R. Venkatesh. Hence, the suit is one for partial partition.
4.5 The suit is false, frivolous, imaginary and cooked up with a view to harass the defendant No.2.
4.6 There is no cause of action for the suit. The plaintiff is not in possession of the suit property. Hence, Court fee paid by the plaintiff is insufficient. 4.7 With the above assertions and explanations, the defendant No.2 has denied all other pleaded facts of the case of the plaintiff allegedly constituting cause of action for the suit. The suit may be dismissed.
16 O.S.No.1592/2021
5. Based on the pleadings and other materials on record, this Court has framed the following Issues:
1) Whether the plaintiff proves that in view of the facts stated in the plaint, the suit property is the joint family property of the plaintiff and the defendants No.1, 3 to 7 ?
2) Whether the plaintiff proves that by playing fraud, misrepresentation and undue influence on late Sri.R.Venkatesh, without paying any sale consideration amount, and also by taking undue advantage of his serious ailments, the defendants No.1 and 2 have got created a registerd sale deed dated 25.11.2019 registered as Document No.HBB-1-01868-2019-20 stored in CD No.HBBD434 in the office of the Sub-Registrar, Gandhinagar (Hebbal), Bengaluru, in respect of the suit property from late Sri.R.Venkatesh in the name of the defendant No.2 ?
3) Whether the plaintiff proves that the above said sale deed is not binding on the share of the plaintiff ?
4) Whether the defendants No.1 and 2 prove that the suit property is the self acquired property of late Sri.R.Venkatesh ?
5) Whether the defendants No.1 and 2 prove that late Sri.R.Venkatesh sold 17 O.S.No.1592/2021 the suit property to the defendant No.2 for his legal necessities by receiving valid and valuable consideration from the defendant No.2 ?
6) Whether the defendants No.1 and 2 prove that the defendant No.2 is the absolute owner in possession of the suit property ?
7) Whether the defendants No.1 and 2 prove that the court fee paid is not sufficient ?
8) Whether the plaintiff is entitled for a share in the suit property ? If so, what is his share ?
9) What decree or order ?
6. On behalf of the plaintiff, the plaintiff is examined as PW.1 and Ex.P-1 to Ex.P-6 are marked. On behalf of the defendants No.1 and 2 or on behalf of the defendants No.3 to 7, no independent evidence is adduced.
7. Heard arguments of the learned Advocate for the plaintiff and arguments of learned Advocate for the defendants. Perused records. 18 O.S.No.1592/2021
8. My findings on the above Issues are as follows.
Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3 : In the Negative Issue No.4 : In the Negative Issue No.5 : In the Negative Issue No.6 : In the Negative Issue No.7: In the Negative Issue No.8: In the Negative Issue No.9: As per final order, for the following :
REASONS
9. ISSUE NO.1 : This is a suit for partition and separate possession. In a judgment reported in (2015) 11 SCC 269 Shasidhar and Ors., vs. Ashwini Uma Mathad and Anr., the Hon'ble Supreme Court has ruled thus regarding factors to be considered by a Court while adjudicating a partition suit, at para 20 in the following words :
"20. We may consider it apposite to state being a well settled principle of law that in a suit filed by a 19 O.S.No.1592/2021 co-sharerer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenery property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharerers, coparceners, co- owners or joint-owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see "Hindu Law" by Mulla 17th Edition, Chapter XVI Partition and Reunion - Mitakshara Law pages 493-547)."
20. The very first principle laid down in the above extracted passage from the above cited judgment of the Hon'ble Supreme Court is pertinent to be taken care of while adjudicating this suit. Bearing in mind the said first principle, the facts of the case may be considered. As already indicated supra, 20 O.S.No.1592/2021 none of the parties are in disagreement with any of the following facts involved in this case. 20.1 That one Smt. Gowramma W/o Sri Ramaiah was the original owner of the suit property. 20.2 That said Smt. Gowramma had executed a GPA dated 10-06-1988 in respect of suit property and another site bearing site No.22 in favour of one Sri Nali Ramaiah @ Ramaiah.
20.3 Along with the said GPA dated 10-06-1988, said Smt. Gowramma has executed an affidavit on 10-06-1988 itself in favour of said Sri Nali Ramaiah @ Ramaiah in respect of said two properties stating to the effect that the transaction between Smt. Gowramma and Sri Nali Ramaiah @ Ramaiah was a sale transaction ; that Smt. Gowramma has handed over the possession of the said two properties in favour of Sri Nali Ramaiah @ Ramaiah ; and that Smt. Gowramma had received entire sale 21 O.S.No.1592/2021 consideration amount from Sri Nali Ramaiah @ Ramaiah.
20.4 In turn, on 22-10-1988, Sri Nali Ramaiah @ Ramaiah S/o Nali Guruvaiah has executed a GPA and an affidavit intimating that Sri Nali Ramaiah @ Ramaiah has sold the suit property to Sri R. Venkatesh for valuable consideration; received entire sale consideration amount ; and that Sri Nali Ramaiah @ Ramaiah has handed over possession of the suit property in favour of Sri R. Venkatesh. 20.5 Based on the said GPA and affidavit both dated 22-10-1988, the revenue records in respect of suit property stood entered in the name of Sri R. Venkatesh ; and Sri R. Venkatesh was paying property tax in respect of suit property.
21. Bearing in mind above well settled proposition of facts of the case on hand, the question to be considered and determined in the case on hand is 22 O.S.No.1592/2021 as to whether Sri R. Venkatesh has acquired valid title over the suit property through said GPA and affidavit both dated 22-10-1988. In order to consider the above question it would be pertinent to refer to a judgment of the Hon'ble Supreme Court in (2012) 1 SCC 656 Suraj Lamp and Industries Pvt. Ltd., v. State of Haryana & Anr. At para 21 in the said judgment the Hon'ble Supreme Court has ruled thus :
"21. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience."
22. Keeping in mind above well settled proposition of law, it would be necessary to turn to the provisions contained in Chapter-X of the Indian 23 O.S.No.1592/2021 Contract Act, 1872. Sections 190 to 195 of the Contract Act reads thus :
Section 190 : When agent cannot delegate - An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature of the agency, a sub-agent must, be employed.
Section 191 : "Sub-agent" defined - A "sub- agent" is a person employed by, and acting under the control of, the original agent in the business of the agency.
Section 192 : Representation of principal by sub-agent properly appointed - Where a sub- agent is properly appointed, the principal is, so far as regards third persons, represented by the sub- agent and is bound by and responsible for his acts, as if he were an agent originally appointed by the principal.
Agent's responsibility for sub-agent - The agent is responsible to the principal for the acts of the sub-agent.
Sub-agent's responsibility -The sub-agent is responsible for his acts to the agent, but not to the principal, except in case of fraud or wilful wrong.
Section 193 : Agent's responsibility for sub- agent appointed without authority - Where an agent, without having authority to do so, has appointed a person to act as a sub-agent, the agent stands towards such person in the relation of a principal to an agent, and is responsible for his acts both to the principal and to third persons; the principal is not represented by or responsible for the acts of the person so employed, nor is that person responsible to the principal.
Section 194 : Relation between principal and person duly appointed by agent to act in 24 O.S.No.1592/2021 business of agency - Where an agent, holding an express or implied authority to name another person to act for the principal in the business of the agency, has named another person accordingly, such person is not a sub-agent but an agent of the principal for such part of the business of the agency as is entrusted to him.
Illustrations
(a) A directs B, his solicitor, to sell estate by auction, and to employ an auctioneer for the purpose. B names C, an auctioneer, to conduct the sale, C is not a sub-agent, but is A's agent for the conduct of the sale.
(b) A authorises B, a merchant in Calcutta to recover the moneys due to A from C & Co. B instructs D, a solicitor, to take legal proceedings against C & Co., for the recovery of the money. D is not a sub-agent, but is solicitor for A. Section 195 : Agent's duty in naming such person-
In selecting such agent for his principal, an agent is bound to exercise the same amount of discretion as a man of ordinary prudence would exercise in his own case; and, if he does this, he is not responsible to the principal for the acts or negligence of the agent so selected.
Illustrations
(a) A instructs B, a merchant, to buy a ship for him. B employs a ship surveyor of good reputation to choose a ship for A. The surveyor makes the choice negligently and the ship turns out to be unseaworthy and is lost. B is not, but the surveyor is, responsible to A.
(b) A consigns goods to B, a merchant, for sale. B, in due course, employs an auctioneer in good credit to sell the goods of A, and allows the auctioneer to receive the proceeds of the sale. The auctioneer afterwards becomes insolvent without having 25 O.S.No.1592/2021 accounted for the proceeds. B is responsible to A for the proceeds.
23. From the reading of the said provisions it is clear that only if the principal (namely, Smt. Gowramma) has authorized her agent Sri Nali Ramaiah @ Ramaiah to appoint an agent under the GPA dated 10-06-1988, the agent (Sri Nali Ramaiah @ Ramaiah) could appoint Sri R. Venkatesh as an agent of Smt. Gowramma. Sri R. Venkatesh is not a sub-agent to the agent of Smt. Gowramma. The plaintiff has produced a xerox copy of GPA dated 10-06-1988. A perusal of various authorities conferred by the principal agent would show that no authority was given to the agent ( Sri Nali Ramaiah @ Ramaiah) under it by the principal (Smt. Gowramma) to appoint another agent in respect of suit property. Under the said circumstances, in view of the law laid down by the Hon'ble Supreme Court in Basanth Nehata case which is reiterated in Suraj Lamp case (supra) at para 21 has to be applied. Applying the said proposition of law to the facts of 26 O.S.No.1592/2021 the case on hand, it is clear that since no authority was given to Sri Nali Ramaiah @ Ramaiah under GPA dated 10-06-1988, Sri Nali Ramaiah @ Ramaiah could not have executed GPA dated 22-10- 1988 in favour of Sri R. Venkatesh. In other words, execution of GPA dated 22-10-1988 by Sri Nali Ramaiah @ Ramaiah in favour of Sri R. Venkatesh is not in accordance with law. Above all, the plaintiff or the defendants have not produced the acceptable documents and marked it as exhibits in this case. Though it is pleaded to the effect that before the judgment of the Hon'ble Supreme Court in Suraj Lamps case, no document is produced and marked either by the plaintiff or by the defendants in support of the said contention. Viewed from any angle, neither the plaintiff nor the defendants appeared to have established that Sri R. Venkatesh has derived valid title over the suit property through GPA dated 22-10-1988.
27 O.S.No.1592/2021
24. With this understanding of the factual scenario in the case on hand, the well settled proposition of law as declared by the Hon'ble High Court of Karnataka in ILR 2007 KAR 339 Aralappa v. Jagannath. In Aralappa case (supra) the Hon'ble High Court of Karnataka at para 21 has ruled thus :
"21. The word "Vibhaga" in Sanskrit, "Bhaga" in Kannada is usually rendered into English by the words "Partition". It denotes adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. It is a process by which the joint enjoyment of a property is transformed into an enjoyment in severalty. It may be by the agreement between the parties or by a decree of the court. However, in either of the cases, the parties to the partition possess an antecedent title in the property and through the process of partition, the antecedent title is specifically defined. Before partition, the property was enjoyed jointly and after partition, they would enjoy the property in severalty. Therefore, in the partition no party gets the title for the first time. In other words, partition does not give title or create title. If the party to the partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific form, Section 5 of the Transfer of Property Act contemplates transfer of property by a person whose title in the said property, to another person who has no title. In a partition, no one transfers title which he possesses in favour of a person who does not possess a title. Every one has an antecedent title. Therefore, no conveyance is involved, in the process as conferment of a new title is not necessary. It does not amount to transfer. Therefore, partition is not a transfer and by partition no body acquires title to any property for the first time. Consequently the partition deed only recognises an existing right, which each party 28 O.S.No.1592/2021 to the deed has in the joint property and no right spring from the deed of partition."
25. In AIR 2009 SC 2863 Shub Karan Bubna @ Shub KaranPrasad Bubna Sita Saran Bubna & Ors., the Hon'ble Supreme Court at para 4 has ruled thus :
"4. `Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co- owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and
(iii) how and in what manner, the property/properties should be divided by metes and bounds?"29 O.S.No.1592/2021
26. It is already concluded that Sri R. Venkatesh did not derive any title over the suit property. As a necessary corollary, the following conclusions are inevitable. They are :
26.1 Question of the defendant No.1 acquiring any valid title over the suit property under Ex.P-4 sale deed dated 25-11-2019 executed by Sri R. Venkatesh in favour of the defendant No.2 - Smt. Shanthi in respect of suit property would not arise at all.
26.2 As such, whether Ex.P-4 - sale deed is genuine or whether it is result of alleged fraud, misrepresentation, or undue influence is inconsequential.
26.3 The plaintiff and the defendants cannot be said to have pre-existing right over the suit property.30 O.S.No.1592/2021
26.4 Question of inheritence of the suit property by the plaintiff and the defendants on the death of Sri R. Venkatesh would not arise at all by any stretch of imagination.
26.5 Question of the suit property being the self acquired property of Sri R. Venkatesh would not arise as Sri R. Venkatesh did not derive any title or right under said GPA and affidavit both dated 22-10-
1988 executed by Sri Nali Ramaiah @ Ramaiah. 26.6 Apart from the fact that said GPA and affidavit dated 22-10-1988 are not valid document, Sri R. Venkatesh has executed Ex.P-4 sale deed on behalf of Sri Nali Ramaiah @ Ramaiah (agent), but, not on behalf of Smt. Gowramma (principal). That apart, nothing is produced to show that Smt. Gowramma was alive as on 25-11-2019, on which date Ex.P-4 sale deed was executed and registered. 31 O.S.No.1592/2021 26.7 In view of the above conclusions, issues No.1, 3, 4, 5, and 6 are held in the Negative.
27. ISSUE NO.2: The plaintiff has not adduced cogent and convincing evidence in proof of alleged fraud, misrepresentation, and undue influence, apart from the pleadings in the plaint regarding the said allegations to the satisfaction of law under Order VI Rule 4 of CPC. For want of sufficient pleading and evidence, issue No.2 is held in the Negative.
28. ISSUE NO.7: The plaintiff claims that the suit property is the joint family property and that the plaintiff and the defendants are in possession of the suit property. Hence, in view of the declaration of law by the Hon'ble Supreme Court in 2007(2) KLJ 311 (SC) - Jagannath Amin v. Seetharama (Dead) by LRs and Ors., the court fee paid is accepted as sufficient. Hence, issue No.7 is held in the Negative.
32 O.S.No.1592/2021
29. ISSUE NO.8: In view of findings returned on issues No.1 to 6, the plaintiff is not entitled for the relief claimed. Hence, issue No.8 is held in the Negative.
30. ISSUE NO.9: Hence, the following :
ORDER (1) The suit is dismissed.
(2) No order as to cost.
(3) Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 28th day of February 2024).
(D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City 33 O.S.No.1592/2021 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Kumar V - dt:08.02.2023
(b) Defendants' side : NIL
II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Death certificate Dt.02.01.2021
Ex.P.2&P.3 Encumbrance certificates in respect of
suit property
Ex.P.4 Certified copy of Sale Deed dated
25.11.2019.
Ex.P.5 Copy of the complaint dated
22.01.2021
Ex.P.6 Acknowledgment issued by
Amruthahalli police station.
(b) Defendants' side : NIL
VI Addl.City Civil & Sessions Judge Bengaluru City