Bangalore District Court
Smt. Chandrika vs Sri T.Rajashekar on 12 January, 2018
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 12th day of January 2018
PLAINTIFF: Smt. Chandrika
W/o Radhakrishna,
Major, R/at # 2088,
18th 'B' Cross,
Housing Board Colony,
Yelahanka New Town,
Bangalore.
[By Sri HTN, Advocate]
/v e r s u s/
DEFENDANTS: 1. Sri T.Rajashekar,
S/o Late Thammaiah,
Major,
R/at # 716 (New)
515, (Old) 6th Cross,
Ashoknagar,
BSK 1st stage,
2nd Block, Bangalore.
2. Smt. Sundari
W/o D.Ramakrsihna,
Major,
R/at # 477, 16th Main,
BSK 1st stage,
Bangalore.
2 CT0028_O.S._7832_1998_Judgment_
.
3. Smt. Nagarathna W/o M.V.Gowrishankar, Major, R/at # 204, 1st floor, Police Station Road, Thyagarajanagar, Bangalore.
4. Smt. Kusuma, W/o Thimmaiah, Major, R/at #2088, 18th 'B' cross, Housing Board Colony, Yelahanka New Town, Bangalore.
5.a) Sri Lakshman Kumar M.S. Aged about 32 years.
5.b) Sri Siddesh M.S. Aged about 28 years,
5.c) Sri Nagesh M.S. Aged about 30 years, All are sons of Smt.Leelavathi, R/at # 477, 16th Main, BSK 1st stage, Bangalore.
6. The Commissioner, Bangalore City Corporation, Bangalore City.
7. Sri T.Ranganatha, Major,
8. Sri T.Srinivas, Since deceased by his L/R & wife Smt. Jayamma.
3 CT0028_O.S._7832_1998_Judgment_ .
9. Smt. Puttamma Since deceased by her LR and husband 9(a) Sri Muttegowda, Major.
10. Smt. Lakshamma Major, W/o Sri Gangappa, 7 to 10 are children of late Thammaiah & Late Smt.Nanjamma, Proposed Defendant No.8(a) is the wife & L/R of deceased T.Srinivasa who was another son of Late Thammaiah and Late Smt.Nanjamma.
Proposed defendant No.9(a) is the husband & L.R. of Deceased Smt. Puttamma, who was another daughter of Late Thammaiah & Late Smt.Nanjamma.
All residing at No.557/B, 9th Cross, 7th Block, Jayanagar West, Bangalore-560 002.
11. Sri N. Devarajan, S/o Late R.Narayana Swamy, Aged about 56 years, R/at No.93, 13th Main Road, Hanumanthanagar, Bangalore-50.
Since dead represented by his LRs.
4 CT0028_O.S._7832_1998_Judgment_ .
11(a) Smt. D.Savithri, W/o Late N.Devarajan, Major.
11(b) Sri Deepak S/o Late N.Devarajan, Aged about 25 years, Both are R/at # 1113/11, 8th Main (Cross), Banashankari 1st Stage, 2nd Block, Ashoknagar, Bangalore-560 050.
12. Sri Mahaveer Jain S/o Sri Rajmal Jain, Aged about 29 years, R/at # 296, 6th A Cross, 7th Main, R.P.C.Layout, Vijayanagar, Bangalore-560 040. D1 -By Sri CSP, Advocate D2, D4, D5 - By Sri GRA, Advocate D3 - By Sri RR, Advocate D5(a) (b) (c) - By Sri MRV, Advocate D6 - By Sri TJP, Advocate D7 to D10 - Absent D11(a) and (b) - Exparte D12- By Sri MPV, Advocate Date of institution of the : 9/10/1998 suit Nature of the suit : For partition Date of commencement of : 31/5/2005 recording of the evidence Date on which the : 12/1/2018 Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
19 3 3
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
5 CT0028_O.S._7832_1998_Judgment_
.
Plaintiff filed this suit against defendants for partition and separate possession of the 'A' schedule property by metes and bounds among the plaintiff and defendant no.1 to 5 equally and also partition and separate division of schedule item no.3 property amongst parties equally and for permanent injunction and also to render accounts of rentals and also for permanent injunction restraining sixth defendant not to change katha and for declaration that alienation made in favour of defendant no.11 under sale deed dated 22.5.1998 in respect of part of the 'A' schedule property is not binding on the plaintiff and same is null and void and any other reliefs as court deems fit proper in the facts and circumstances of the case.
2. In brief, the plaintiff's case is as under:
The plaintiff and defendant no.1 to 4 are the brother and sisters born to Smt. Kaveramma, the mother of parties and one of the daughter Smt.Leelavathi passed away in the year 1963 leaving 6 CT0028_O.S._7832_1998_Judgment_ .
behind defendant no.5 (a) (b) and (c). One late Thammaiah father of defendant no.1 to 4 passed away in the year 1974 leaving behind his wife Smt.Kaveramma and children. After death of Thammaiah, parties to succeed to the estate left behind him as his legal heirs. Late Thammaiah during his lifetime had taken profession in manufacturing of rolling shutters and also building fabrication work and he was running business under name and style Anjaneya Metal works and getting enormous income out of the business. Thammaiah acquired certain immovable and movable properties out of the earnings from the business. Said Thammaiah had sentimental relief also with love and affection was doing his transaction in the name of Smt.Kaveramma in the year 1956 while purchasing the residential site. Thammaiah by paying sale consideration purchased plot bearing no.19 and 20 in the name of Smt.Kaveramma under registered sale deed dated 6.9.1956. The property was purchased from one 7 CT0028_O.S._7832_1998_Judgment_ .
Kamalamma for valuable sale consideration of Rs.1000/-. At the time of purchase of the said property, Thammaiah had paid entire sale consideration through cheque bearing no.363679 dated 12.9.1956 drawn at United Commercial Bank, Bengaluru. Smt.Kaveramma had no source of income of her own. Only out of the earnings of the late Thammaiah 'A' schedule property was purchased in the name of Smt.Kaveramma. Thammaiah also purchased another item of property under registered sale deed dated 2.9.1956 for valuable sale consideration. The property also forms and constitutes a part of survey no.16/1 of Sunkenahalli. In the second transaction of 1965, late Thammaiah paid entire sale consideration and sale deed registered in the name of Smt.Kaveramma. Late Thammaiah during his lifetime by investing huge amount out of his income derived from the business constructed a dwelling house in the sites purchased under different sale deeds. The plaintiff and all other sisters were 8 CT0028_O.S._7832_1998_Judgment_ .
residing together in the same house until their marriage is performed by their late father. The defendant no.1 continued to reside in the house constructed in sites bearing no.19 and 20 morefully described in 'A' schedule property. The schedule properties being the self-acquired properties of late Thammaiah after his death, their mother expressed her wish as per desire of the late Thammaiah to divide the schedule properties amongst the children of late Thammaiah until marriage of first defendant. Smt.Kaveramma did not partitioned the properties and all along assured the plaintiff and other daughters that soon after the marriage properties would be partitioned amongst children of late Thammaiah.
It is pertinent to note that, in the recent past more particularly in the month of March 1998, plaintiff and defendant no.3 and 4 put forth their demand to divide the property by metes and bounds and for which first defendant and his wife Smt.Swetha 9 CT0028_O.S._7832_1998_Judgment_ .
have turned hostile and in order to deprive the other shares of the property made an attempt to develop hatredness among the daughters and mother Smt.Kaveramma and with oblique motive threatened the plaintiff and other daughters not to visit the house of Smt.Kaveramma. In the said situation and circumstances the first defendant did not allow the plaintiff and other daughters to visit Smt.Kaveramma at her place in schedule property taking undue advantage and deteriorating health condition of Smt.Kaveramma, the first defendant is making all arrangements to obtain signature of certain documents so as to confer right, title and interest in the suit schedule property only in favour of first defendant.
Further first defendant had also taken fifth defendant to Sub Registrar Office to obtain certain signatures. The plaintiff strongly suspects some fraudulent act and scheme of the first defendant by creating certain documents to knock off the schedule 10 CT0028_O.S._7832_1998_Judgment_ .
property. The plaintiff caused legal notice to 6th defendant calling upon 6th defendant not to effect any change in the revenue entries since daughter have equal right and share in the schedule property.
Smt.Kaveramma died on 29.7.1998. During lifetime of Thammaiah vast movable properties were acquired which includes household utensils, jewellaries which continued in the custody of Smt.Kaveramma till her death. During her ill-health, all the movable items described in schedule 'B' have been taken to custody by the first defendant and his wife Swetha and continued in their possession. The plaintiff and other daughters are also entitled to equal share in 'B' schedule properties.
First defendant has created Wills dated 4.4.1990 and 27.2.1992 in respect of part of 'A' schedule property. That even the alleged first Will dated 4.4.1990 said to have been executed by plaintiff's mother in favour of first defendant had not at all cancelled either by subsequent two alleged registered 11 CT0028_O.S._7832_1998_Judgment_ .
Wills dated 27.2.1992 and 14.11.1994 nor by any alleged registered instrument till today. Hence, alleged Will dated 4.4.1990 said to have been executed by plaintiff's mother in favour of first defendant is still in existence and therefore all the Wills said to have been executed in favour of defendant under suspicious circumstances.
Plaintiff submits that on instigation, force, coercion of first defendant Smt.Kaveramma was said to have been executed alleged two sale deeds dated 22.5.1998 and 20.6.1998 in favour of one N.Devarajan conveying part of suit 'A' schedule property measuring 40 x 60 feet along with two constructed houses built on the 'A' schedule property.
Either plaintiff mother or first defendant have no locus standi or independent right whatsoever over the 'A' schedule property either to alienate or dispossess any part of 'A' schedule property. The first defendant by playing fraud on Smt.Kaveramma has created Wills and sale deeds with respect to the 'A' schedule 12 CT0028_O.S._7832_1998_Judgment_ .
property. The said wills and sale deeds are not binding on the plaintiff as well as on defendant no.2 to 4. Alleged sale deeds does not convey any title to the alleged purchaser N.Devarajan with respect to the part of 'A' schedule property.
The defendant no.11 is an alleged purchaser of the part of the 'A' schedule property without consent and knowledge of the plaintiff as well as defendant no.2 to 4. The plaintiff and her sisters who are defendant no.2 to 4 are not the signatories to the alleged instruments styled as sale deed dated 22.5.1998 and 20.6.1998. Therefore, said alienataion is not binding on the plaintiff. That Smt.Kaveramma had no alleged independent right whatsoever over the suit schedule properties to execute or transfer any part of the 'A' schedule property. Even otherwise, the mother of the plaintiff during her lifetime had no intention to do the alleged acts and she never expressed to do the said alleged acts of alienation of part of 'A' schedule property either to the plaintiff or 13 CT0028_O.S._7832_1998_Judgment_ .
her sisters. Even there was no necessity for plaintiff's mother to alienate or dispossess any part of 'A' schedule property. The alleged sale deeds are created by the defendant no.1 in order to deprive the right of plaintiff and her sister over the suit schedule property. The first defendant is receiving rent of Rs.5,000/- per month in respect of 'A' schedule property and he himself utilizing the amount without giving any share to the plaintiff or the other sisters since long time. The plaintiff is also having equal share in the suit schedule properties. Defendant no.1 failed to effect partition of suit schedule properties inspite of request and demand made by the plaintiff. Hence this suit.
3. In response to the suit summons issued by the court, defendants no.1 to 6, 11 and 12 appeared through their counsel and defendant no.1 filed separate written statement and defendant no.2 and 3 filed joint written statement and defendant no.4 filed memo stating that she adopts the written statement 14 CT0028_O.S._7832_1998_Judgment_ .
filed by defendant no.2 and 3 and defendant no.6 and defendant no.12 have filed separate written statement. Defendant no.5, 11 have not filed any written statement.
4. Inspite of service of summons defendants 7 to 10 did not appear and contest the case of plaintiff. Hence they are placed exparte.
5. Further it appears from the records that during the pendency of this suit, defendant no.5 and 11 are reported to be dead and their legal representatives are brought on record. The legal representative of defendant no.5 have appeared through their counsel but not filed any written statement whereas legal representatives of defendant no.11 did not appear and contest the case of plaintiff. Hence they are placed exparte.
6. In brief the contents of the written statement filed by defendant no.1 are as under:
The suit of the plaintiff is false and same is not maintainable either in law or on facts. It is submitted 15 CT0028_O.S._7832_1998_Judgment_ .
that after the death of late Thammaiah his wife Smt. Kaveramma was looking after by only her son defendant no.1. Defendant no.1 has looked after her old-age and daily affairs of his mother. The plaintiff and defendants 2 to 4 after their marriage they have not even looked after their mother till her death. Schedule 'A' and 'B' properties are self-acquired properties of Smt. Kaveramma. Since schedule 'A' and 'B' properties are the self acquired properties of Smt. Kaveramma she has executed registered Will in favour of first defendant. Above said Will dated 14.11.1994 was registered in the Sub Registrar office, Basavanagudi, Bengaluru. At the time of executing the Will Smt. Kaveramma was healthy and mentally sound. After the death of Smt. Kaveramma, the first defendant is in physical possession and enjoyment of 'A' schedule property. Thereafter katha has also been changed in the name of first defendant and first defendant is also paying property tax in his name in respect of 'A' schedule property. The plaintiff and 16 CT0028_O.S._7832_1998_Judgment_ .
defendants 2 to 5 do not have any right over the suit schedule properties. It is false to contend that suit schedule properties were acquired in the name of Kaveramma out of the earnings of her husband Thammaiah. It is totally false that with love and affection in the year 1956 while purchasing the residential site, Thammaiah by paying sale consideration purchased a plot in the name of Kaveramma. It is false to contend that Thammaiah paid entire sale consideration amount through cheque. Late Kaveramma had money during her lifetime and she got money from her parents and also herself earning money used at the time of purchasing the schedule 'A' and 'B' properties. Hence suit schedule properties are the self-acquired properties of Kaveramma.
It is false to contend that after the death of Kaveramma, first defendant and his wife have concocted documents in respect of suit schedule properties. The suit schedule property is the exclusive 17 CT0028_O.S._7832_1998_Judgment_ .
property of Smt. Kaveramma and she had absolute right over the same.
It is true that after the marriage of plaintiff and defendants 2 to 4, they separately and independently residing in Bangalore City. It is not true that property being self-acquired property Late Thammaiah after his death, her mother expressed her wish as per desire of Late. Thammaiah to derive the schedule properties amongst the children of Late Thammaiah until marriage of first defendant. It is false that Smt.Kaveramma was very old and sick and recently suffered paralysis and is bed ridden and she was not in a fit condition to walk or move about. Defendant no.1 contended that after the death of Late Thammaiah his wife Smt. Kaveramma was looking after by only her son defendant no.1 and plaintiff and defendants 2 to 4 after their marriage, they have not looked after their mother till her death. Even day to day work of Smt. Kaveramma was looking after by first defendant and his wife Smt.Swetha with love and 18 CT0028_O.S._7832_1998_Judgment_ .
affection. The plaintiff and defendant no.2 to 5 and fifth defendant's mother had not in good terms with Smt. Kaveramma till her death. The suit schedule properties are the self-acquired properties of Smt. Kaveramma and she with love and affection had executed registered Will dated 14/11/1994 in favour of his son who is defendant no.1. At the time of executing the Will, Smt. Kaveramma was healthy and mentally sound. After the death of Smt. Kaveramma, first defendant who is in possession of 'A' schedule property has got katha in respect of 'A' schedule property in his name and paying tax in respect of the said property. The plaintiff has suppressed the material facts and filed this suit only with an intention to harass first defendant by colluding with defendants 2 to 5. It is not true that out of the earnings from the business, late Thammaiah acquired certain movable and immovable properties by investing amount out of earnings in business. But, late Smt. Kaveramma had money during her lifetime and she had got money 19 CT0028_O.S._7832_1998_Judgment_ .
from her parents and she also having money in her own source of income and she had purchased 'A' schedule property. 'A' schedule property is not the joint family property of plaintiff and defendants 1 to 5. It is false to contend that immediately after death of Smt. Kaveramma and his wife making hectic efforts in order to change the katha of 'A' schedule property in their names. The plaintiff and defendant no.2 to 5 have no share in the suit schedule property. On these grounds, defendant no.1 prays for dismissal of the suit.
7. In brief the contents of the written statement filed by defendants 2 and 3 are as under:
Defendant no. 2 and 3 have admitted the averments made in the plaint para no.1 to 3 are true and correct. Smt. Kaveramma had substantial cash, jewellary of her own from the beginning. Her relatives also supported Smt. Kaveramma and she had purchased property on 2/9/1965 and Thammaiah had nothing to do with the 'A' schedule property. It is 20 CT0028_O.S._7832_1998_Judgment_ .
specifically asserted that health of Smt. Kaveramma was deteriorating and her faculties had failed. She has suffered paralytic stroke and she was unable to move, express, write or do anything. Defendant no.2 and 3 are also entitled to share in the suit schedule properties and ready to pay requisite court fee for allotment of their share. Defendant no.1 for the first time had come with a alleged theory that their mother Smt. Kaveramma has allegedly executed registered Will dated 4/4/1990 with respect to the suit schedule 'A' property in his favour. Even without revoking the alleged registered instrument, Smt. Kaveramma is said to have allegedly executed another registered instrument styled as Will dated 27/2/1992 with respect of the very same property in favour of first defendant. These defendants submits that during the existence of said two alleged Wills dated 4/4/1990 and 27/2/1992, Smt. Kaveramma is said to have executed yet another alleged Will dated 14/11/1994 purportedly in favour of first defendant with respect to 21 CT0028_O.S._7832_1998_Judgment_ .
the same property by allegedly revoking her earlier Will dated 27/2/1992. These defendants submits that even the alleged first Will dated 4/4/1990 said to have been executed by Smt. Kaveramma in favour of first defendant had not been revoked either by said subsequent two alleged Wills dated 27/2/1992 and 14/11/1994 or by any alleged registered instrument. The defendant no.1 in order to knock off the 'A' schedule property has created series of documents.
During the pendency of this suit, these defendants came to know that by undue influence, force, co-ertion, compulsion and high handed acts, first defendant and his wife Smt.Swetha along with Smt. Kaveramma have got allegedly executed two registered sale deeds dated 22/5/1998 and 20/6/1998 in favour of one Devarajan allegedly conveying portion of the suit 'A' schedule property. These defendants submits that either their mother Smt. Kaveramma or first defendant had no exclusive right over the 'A' schedule property either to execute 22 CT0028_O.S._7832_1998_Judgment_ .
sale deed or convey any property. The alleged acts are void ab initio and not binding on these defendants. The alleged sale deeds dated 22/5/1998 and 20/6/1998 said to have been allegedly executed by Smt. Kaveramma in favour of defendant no.11 in any way binding on these defendants. These defendants submits that their mother Smt. Kaveramma was not in a position to execute any documents as she was suffering from parkinson's disease and she was also neither in a position to affix her signature nor could affix her thumb impression on any alleged documents and even her mental condition was not stable. It is the defendant no.1 who has created documents in order to knock off the 'A' schedule property.
These defendants being the class I heirs of deceased Thammaiah and Smt. Kaveramma along with their sisters and brothers have also jointly succeeded to the estate to their deceased parents and they are equally entitled for their respective share in the suit schedule properties. On these grounds, they 23 CT0028_O.S._7832_1998_Judgment_ .
requested to pass suitable decree declaring the rights and shares of children of Thammaiah and Smt. Kaveramma and for partition and separate possession of their share in the schedule properties.
8. In brief the contents of the written statement filed by defendant no.6 are as under:
The suit of the plaintiff is not maintainable against this defendant either in law or on facts. It is true that schedule properties are the properties of Smt. Kaveramma and she died on 29/7/1998. The first defendant along with other defendants has filed application for transfer of katha before this authority.
The plaintiff who is none other than the daughter of Late Kaveramma had filed objection before this authority not to transfer katha and also stated that she has filed this suit. In the above circumstances, this defendant has kept the pending of change of katha to the names of defendants 1 to 5. On these grounds, defendant no.6 prays for dismissal of the suit.
24 CT0028_O.S._7832_1998_Judgment_ .
9. In brief the contents of the written statement filed by defendant no.12 are as under;
The suit filed by the plaintiff is not maintainable either in law or on facts. This defendant is a bonafide purchaser of property in question for valuable consideration and he has purchased the property in question under registered sale deed dated 5/7/2010 from defendant no.11. The vendor of this defendant has acquired the valid right, title and interest in respect of the property in question under registered sale deeds dated 22/5/1998 and on 28/6/1998 for valuable consideration from his vendor namely Smt. Kaveramma and her son T.Rajashekar who is defendant no.1 in the suit. The defendant no.11 after verifying the records and after confirming the ownership of the property in question has purchased the above said property under two sale deeds and subsequently he got changed katha in his name. As such, the alienation made by defendant no.11 in favour of defendant no.12 is in accordance with law. 25 CT0028_O.S._7832_1998_Judgment_ .
Now defendant no.12 is in possession and enjoyment of the property purchased by him from defendant no.11 and he is the absolute owner of the same. After purchase of the property second defendant in order to develop the same has raised loan from Canara Bank and he had put up pucca construction by obtaining plan and license from the competent authorities and he is residing in the said property along with his family members as the absolute owner. The suit of the plaintiff is hopelessly barred by law of limitation. There is no cause of action for this suit. On these grounds, he prays for dismissal of the suit.
10. On the basis of the pleadings of the parties, my predecessor has framed the following issues and additional issues:
(1) Whether the plaintiff proves that she has got a share in the suit schedule A and B properties. If so, what is the extent of share she has got?
(2) Whether the plaintiff proves the alleged attempts of the 1st defendant and his wife to 26 CT0028_O.S._7832_1998_Judgment_ .
change the katha of the suit schedule A property in their favour?
(3) Whether the plaintiff is entitled to a decree of partition and separate possession of her share in suit schedule A and B properties?
(4) Whether the plaintiff is entitled to a decree of permanent injunction as sought for?
(5) Whether the plaintiff is entitled to direction to the 1st defendant to render accounts as sought for?
(6) What decree / order?
ADDITIONAL ISSUES DATED 31/7/2008:
(1) Whether the 1st defendant proves that his mother late Kaveramma had executed registered Will in his favour on 14/11/1994 in respect of suit schedule property?
ADDITIONAL ISSUES DATED 13/2/2012:
(1) Whether the plaintiff proves that her father acquired certain movable properties out of his own earnings and for the benefit and necessity of the family and thus the said properties are the joint co-
27 CT0028_O.S._7832_1998_Judgment_ .
parcenary and ancestral properties of herself and defendants 1 to 5 as alleged in the amended plaint?
(2) If so, whether plaintiff further proves that her mother Smt. Kaveramma and defendant No.1 had and have no sort of independent separate and absolute right over the said movable and immovable properties as alleged in the amended plaint?
(3) If so whether plaintiff further proves that her mother has no absolute right to either to alienate or dispose of the properties without the consent of all the legal heirs of Thammaiah as alleged?
(4) Whether the plaintiff further proves that Will so set up by defendant No.1 is the outcome of suspicious circumstance and hence never give any right to him as alleged in the amended plaint?
(5) Whether plaintiff further proves that the 2 sale deeds dated 22/5/1998 and 20/6/1998 in favour of one Sri N.Devarajan conveying the part of schedule A property is at the instigation, force, coercion and abatement 28 CT0028_O.S._7832_1998_Judgment_ .
of defendant No.1 as alleged in the amended plaint?
(6) Whether plaintiff further proves that either the mother of the plaintiff or defendant No.1 have no locus standi or have no absolute independent separate right, title, interest or possession over the schedule A property as alleged in the amended plaint?
(7) Whether plaintiff further proves that the said sale deeds are nt at all binding and herself and her sisters and they are void documents as alleged in the amended plaint?
(8) Whether defendant No.1 proves that the relief of declaration to declare the two sale deeds is hopelessly barred by law of limitation as contended in his additional written statement?
(9) Whether defendant No.1 further proves that suit of the plaintiff with regard to the relief of declaration is incorrect and suit is under valued as contended in para 5 of his additional written statement?
(10) Whether defendant No.1 proves that the present suit of the plaintiff is not maintainable 29 CT0028_O.S._7832_1998_Judgment_ .
as contended in para 4 of the additional written statement?
(11) Whether plaintiff proves that she is entitled for the relief of declaration as prayed?
ADDITIONAL ISSUES DATED 07/07/2012:
(1) Whether defendant No.12 proves that he is the bonafide purchase of the portion of the suit schedule property from defendant No.11 and has put up the pucca building in the same as contended in his written statement?
(2) Whether defendant No.12 further proves that the claim of the plaintiff is barred by law of limitation as contended in his written statement?
11. In this case, plaintiff in order to her case, she examined herself as PW.1 and produced in all 12 documents which are marked as Ex.P1 to Ex.P12 and closed her side of evidence. On the other hand, defendant no.1 in order to prove his case, he examined himself as DW.1 and also got examined two witnesses as DWs. 2 and 3. Further, defendant no.2 and 3 and 4 examined themselves as DW. 4, DW.5 30 CT0028_O.S._7832_1998_Judgment_ .
and DW.7 respectively and they got examined one witness as DW.6. Further, defendant no.12 examined himself as DW.8 and all the defendants got marked documents which are marked as Ex.D1 to Ex.35 and closed their side of evidence.
12. Heard arguments on both sides and perused entire records of the case. During the course of arguments, learned counsel for the plaintiff has relied upon following decisions:
1. ILR 1995 KAR 577 Rangachar Vs. Siddalingamma
2. 2009 AIR SCW 1338 Bharpur Singh Vs. Shamsher Singh
3. 2004 (3) KCCR 1637 U.G.Srinivasa Rao Vs. Vinay Kumar & others.
4. 2013 (3) KCCR 2097 (SC) Narinder Singh Rao Vs. AVM Mahinder Singh Rao & Ors.
5. 2003(2) KCCR 1382 Mallappa Adiveppa Hadapad Vs. Smt. Rudrawwa and others.
13. Per contra, advocate for defendant no.1 relied upon following decisions:
31 CT0028_O.S._7832_1998_Judgment_ .
1. ITTIANAM AND ORS Vs. Cherichi @ Padmini reported in AIR 2010 SC 2994;
2. Uma devi Nambiar and others Vs. T.C.Sidhan dead reported in ACJ 2004 SC 188: AIR 2004 SC 1772.
3. Dada Jinnappa Khot Vs. Shivalingappa Ganapati Bellanki reported in ILR 1989 KAR 993.
4. Mahesh Kumar dead by LRs vs. Vinod Kumar and others reported in 2012 (4) SCC 387.
14. In this case, defendant no.2 filed written arguments.
15. My findings on the above issues are as under:
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;
Addl. Issue No.1
framedon 31/7/2008: In the affirmative; Additional Issues framed on 13/2/2012:
Addl. Issue No.1: In the negative; Addl. Issue No.2: In the negative; Addl. Issue No.3: In the negative; 32 CT0028_O.S._7832_1998_Judgment_ .
Addl. Issue No.4: In the negative; Addl. Issue No.5: In the negative; Addl. Issue No.6: In the negative; Addl. Issue No.7: In the negative; Addl. Issue No.8: In the affirmative; Addl. Issue No.9: In the negative; Addl. Issue No.10: Deleted as wrongly framed.
Addl. Issue No.11: In the negative; Additional Issues framed on 7/7/2012:
Addl. Issue No.1: In the affirmative; Addl. Issue No.2: In the affirmative; Issue No.6: As per final order; for the following:
16. ISSUE 1, ADDITIONAL ISSUE NO.1, ADDL. ISSUE NO.2, ADDL. ISSUE NO.3, ADDL. ISSUE NO.6 FRAMED ON 13/2/2012: Now I will consider these issues together for the sake of brevity and convenience and as evidence is also common.
17. It is the case of the plaintiff that suit schedule properties are the joint family properties of 33 CT0028_O.S._7832_1998_Judgment_ .
plaintiff and defendant no.5 and she has got equal share in the suit schedule property.
18. Defendant no.1 appeared through his counsel and filed written statement denying the case of plaintiff. Defendant no.1 admitted his relationship with the plaintiff and defendant no.2 to 5, but he denied that suit schedule property is the joint family property of plaintiff and defendant no.1 to 5(a) to (c). According to defendant no.1, suit schedule property was the self-acquired property of his mother and during her lifetime she has executed registered Will in his favour on 14/11/1994 in respect of the suit schedule property.
19. In this case, defendant no.2, 3, 4 contended that suit schedule property is the joint family property of plaintiff and defendant no.1 to 5(a) to (c) and they are also entitled to share. Defendant no.12 contended that he is the bonafide purchaser of the portion of the suit schedule property.
34 CT0028_O.S._7832_1998_Judgment_ .
20. In this case, plaintiff in order to prove her case, she examined herself as PW.1. She filed affidavit evidence in lieu of her examination in chief. In her examination in chief, she reiterated the plaint averments. She produced in all 12 documents which are marked as Ex.P1 to Ex.P12. In the cross- examination she denied that suit schedule property is the self-acquired property of her mother Kaveramma. She further denied that suit schedule property is not the joint family property of plaintiff and defendant no.1 to 5(a) to (c).
21. In this case defendant no.1 examined himself as DW.1. He filed affidavit evidence in lieu of his examination in chief. In his examination in chief, he reiterated the contention taken in his written statement. He deposed that suit schedule property is the self-acquired property of his mother and his mother has executed Will in respect of suit schedule property in his favour on 14/11/1994 and plaintiff 35 CT0028_O.S._7832_1998_Judgment_ .
and defendants 2 to 5 have no share in the suit schedule property. He produced Will which is marked as Ex.D7. In the cross-examination, he denied that suit schedule property was purchased in the name of his mother out of the joint family income.
22. Defendant no.2 examined herself as DW.4. Defendant no.3 examined herself as DW.5. Defendant no.4 examined herself as DW.7. They filed separate affidavit in lieu of their examination in chief. In their evidence, they stated that their father has purchased the 'A' schedule property in the name of their mother because of love and affection and their mother had no source of income to purchase the suit schedule property. In the cross-examination they denied that 'A' schedule property is the self-acquired property of their mother. In this case, defendant no.2 to 4 got examined one witness as DW.6. He filed affidavit evidence in lieu of his examination in chief. In his evidence, he deposed that his uncle Thammaiah 36 CT0028_O.S._7832_1998_Judgment_ .
purchased 'A' schedule property in the name of his wife Kaveramma under two registered sale deeds and entire consideration amount to purchase above said properties was invested by late Thammaiah. In the cross-examination, he stated that during 1956, he was aged about 15 years and he has not seen Thammaiah giving money towards purchase of house.
23. In this case, defendant no.12 examined himself as DW.8. He filed affidavit evidence in lieu of his examination in chief. In his evidence, he stated that suit schedule property was the self-acquired property of Kaveramma and defendant no.11 has purchased portion of the suit schedule property from Kaveramma and defendant no.1 and thereafter he has purchased the said property from defendant no.11 and he has constructed building after obtaining necessary permission and he is in lawful possession and enjoyment of the said portion of 'A' schedule property. In the cross-examination, he denied that 37 CT0028_O.S._7832_1998_Judgment_ .
suit schedule property is the joint family property of plaintiff and defendant no.1 to 5 and Kaveramma and defendant no.1 had no right to execute the sale deed in respect of portion of 'A' schedule property in favour of defendant no.11.
24. I have perused entire oral and documentary evidence adduced by both the parties. It is pertinent to note that, 'A' schedule property is the immovable property measuring East to West 100 feet and North to South 60 feet and said property comprised built house. 'B' schedule property are the movable properties. In this case even though plaintiff has claimed her share in the 'B' schedule property, but plaintiff has not adduced any evidence to show that 'B' schedule properties are the joint family properties of plaintiff and defendant no.1 to 4 and they are in existence as on the date of suit. Hence, at the first instance itself the plaintiff has utterly failed to prove the existence of schedule 'B' properties. Further at the 38 CT0028_O.S._7832_1998_Judgment_ .
time of filing this suit, plaintiff has not taken any inventory to show that 'B' schedule properties are in the possession defendant no.1 and they are joint family properties and she is also entitled to share in the suit schedule property.
25. In this case plaintiff has not produced any cogent evidence to prove the existence of 'B' schedule property. Plaintiff has utterly failed to prove existence of 'B' schedule property. Further, plaintiff has not adduced any evidence to show that 'B' schedule properties are the joint family properties of herself and defendants 1 to 5. In this case, absolutely there is no evidence with regard to 'B' schedule property. Hence, in the absence of cogent evidence it cannot be said that 'B' schedule properties are in existence and they are the joint family properties of plaintiff and defendant no.1 to 5. Hence plaintiff has failed to prove that 'B' schedule properties are the joint family properties of plaintiff and defendant no.1 to 5. 39 CT0028_O.S._7832_1998_Judgment_ .
26. In this case, plaintiff is seriously contesting the matter only with regard to 'A' schedule property which is immovable property. According to plaintiff, 'A' schedule property is purchased by her father in the name of her mother and hence 'A' schedule property is the joint family property of plaintiff and defendants. In this case, plaintiff also contended that her mother had no any independent income and her father out of love and affection he has purchased 'A' schedule property in the name of her mother Kaveramma and hence 'A' schedule property is the joint family property of plaintiff and defendant no.1 to 5.
27. It is an admitted fact that in the year 1956, residential flat bearing no.19 and 20 are purchased in the name of Kaveramma who is mother of plaintiff and defendant no.1 to 4 under registered sale deed dated 6/9/1956 from one Kamalamma w/o Sheshagiri Rao for a sale consideration amount of Rs.1,000/-. Further, another item of number of property was also 40 CT0028_O.S._7832_1998_Judgment_ .
purchased under registered sale deed dated 2/9/1965 in the name of Kaveramma.
28. It is the case of the plaintiff that even though said properties are purchased in the name of Kaveramma their father Thammaiah paid entire sale consideration in respect of the said properties through cheque bearing no.363679 dated 12/9/1956.
29. In this case, plaintiff has produced said sale deeds purchased in the name of Kaveramma which are marked as Ex.P1 and Ex.P2. On perusal of the same, they shows that 'A' schedule property has been purchased from Kaveramma under separate sale deeds as per Ex.P1 and Ex.P2.
30. It is the case of the plaintiff that her mother had no separate income to purchase 'A' schedule property and her father has paid sale consideration amount in respect of the 'A' schedule property by way of cheque.
41 CT0028_O.S._7832_1998_Judgment_ .
31. DW.1 in his cross-examination admitted that in Ex.P1 and Ex.P2, it is recited that consideration of Rs.1,000/- and Rs.300/- respectively was paid by his father Thammaiah. Hence, evidence of DW.1 shows that sale consideration amount was paid by Thammaiah in respect of 'A' schedule property.
32. In this case, evidence on record also clearly shows that Thammaiah during his lifetime was doing business of rolling shutters and also building fabrication work and he has got good income from the said business. In this case, defendant no.1 contended that her mother was vending milk and out of her own earnings, she has purchased 'A' schedule property under Ex.P1 and Ex.P2. But, in this case, defendant no.1 has not adduced any cogent evidence to show that Kaveramma was doing milk vending business. However, the recitals of Ex.P1 and Ex.P2 shows that consideration amount of Rs.1,000/- and Rs.300/- respectively paid by Thammaiah. But, in this case, 42 CT0028_O.S._7832_1998_Judgment_ .
there is no cogent evidence on record to show that Thammaiah has paid above said sale consideration amount out of the joint family nucleus. Ex.P1 and Ex.P2 shows that Thammaiah has paid sale consideration amount. Admittedly Thammaiah was doing independent business and he was getting good income. It shows that Thammaiah out of his own earnings has paid the amount to his wife to purchase 'A' schedule property under Ex.P1 and Ex.P2. In this case, there is no any cogent evidence on record to show that Thammaiah had paid sale consideration amount out of the joint family fund or nucleus. Under such circumstances, it cannot be said that 'A' schedule property was purchased in the name of Kaveramma out of the joint family funds or nucleus. Under such circumstances, 'A' schedule property cannot be treated as joint family property as contended by plaintiff and defendant no.2 to 5. It appears that Thammaiah who is husband of Kaveramma has paid sale consideration amount out 43 CT0028_O.S._7832_1998_Judgment_ .
of love and affection towards his wife. Further evidence on record clearly shows that Thammaiah has paid said amount out of his own earnings and he has not paid said amount out of joint family fund or nucleus. Hence, it cannot be treated that 'A' schedule property is the joint family property of plaintiff and defendant no.1 to 4.
33. The evidence on record clearly shows that since from the date of purchase of the 'A' schedule property under Ex.P1 and Ex.P2, Kaveramma has exercised her absolute right over 'A' schedule property. Hence, it is the absolute property of Kaveramma. It is also important to note that, as per Section 14 of Hindu Succession Act, 1956 any property possessed by female Hindu shall be held by her absolute property. Section 14 of Hindu Succession Act, 1956 reads as under:
"Property of a female Hindu to be her absolute property - (1) Any property 44 CT0028_O.S._7832_1998_Judgment_ .
possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner"
34. Admittedly, Ex.P1 and Ex.P2 are standing in the name of Kaveramma and she has purchased said property under registered sale deed dated 6/9/1956 and 2/9/1965 and since from the date of purchase of the said property, Kaveramma had exercised her right over the said property as her absolute property. During the lifetime of Thammaiah he never claimed that 'A' schedule property is the joint family property. Hence, any property possessed by female Hindu whether acquired before or after the commencement of Hindu Succession Act shall be held by her as full owner thereof and not as a limited owner. Admittedly, 'A' schedule property is standing in the name of Kaveramma and she has purchased the said property under two registered sale deeds and during her lifetime she exercised her absolute right 45 CT0028_O.S._7832_1998_Judgment_ .
over 'A' schedule property as her own property and hence 'A' schedule property is the absolute property of Kaveramma. Under such circumstances, it cannot be said that 'A' schedule property is the joint family property of plaintiff and defendant no.1 to 5 as contended by the plaintiff.
35. It is also important to note that, any property possessed by female Hindu includes actual as well as constructive possession. The evidence on record clearly shows that during lifetime of Kaveramma she was in actual possession of 'A' schedule property and enjoyed the said property as her absolute property. The expression female Hindu in the heading of Section 14 of the Act as well as expression any property possessed by female Hindu have to be given a wider interpretation in consonance with the wishes and desires of the framers of the Constitution. Therefore, as per Section 14 of the Hindu Succession Act, any property possessed by female 46 CT0028_O.S._7832_1998_Judgment_ .
Hindu to be her absolute property. Hence, 'A' schedule property is the absolute property of Kaveramma.
36. It is held in a decision reported in AIR 2003 NOC 126 (HP) that any property possessed by Hindu female irrespective of how it was acquired becomes her absolute property after coming into force of the Act in view of the operation of Section 14(1) of Hindu Succession Act. Admittedly, 'A' schedule property was purchased by Kaveramma and it is standing in her name and during her lifetime she exercised her absolute right over 'A' schedule property. Hence, in view of the above referred decision, any property possessed by Hindu female irrespective of how it was acquired becomes her absolute property after coming into force of Section 14 of the Hindu Succession Act. Hence in view of above referred decision, the recitals of Ex.P1 and Ex.P2 does not play any important role with regard to sale consideration amount. The property is possessed 47 CT0028_O.S._7832_1998_Judgment_ .
by Hindu female irrespective of how it is acquired it becomes her absolute property. In the present case also Kaveramma has acquired 'A' schedule property by virtue of Ex.P1 and Ex.P2 and how she has acquired 'A' schedule property is immaterial, but Kaveramma has possessed 'A' schedule property by virtue of Ex.P1 and Ex.P2 and exercised her right during her lifetime as her absolute property. Hence 'A' schedule property is the absolute property of Kaveramma and it is not the joint family property of plaintiff and defendant no.1 to 5 as contended by plaintiff and defendants 2 to 4. Plaintiff failed to prove that suit schedule properties are the joint family properties of plaintiff and defendant no.1 to 5. Further plaintiff failed to prove that her mother and defendant no.1 had no sort of independent right over the suit schedule properties. Plaintiff failed to prove issue no.1, additional issue no.1, 2, 3 and 6 framed on 13/2/2012. Accordingly, I answer the above issues in the negative. 48 CT0028_O.S._7832_1998_Judgment_ .
37. ADDITIONAL ISSUE NO.1 FRAMED ON 31/7/2008 AND ADDITIONAL ISSUE NO.4 FRAMED ON 13/2/2012: Now I will consider both the issues together for the sake of brevity.
38. In this case, defendant no.1 contended that during lifetime of her mother Kaveramma has executed registered Will on 14/11/1994 in his favour in respect of the suit schedule property. In this case defendant no.1 set up a Will in respect of suit schedule property. Plaintiff contended that the Will so set up by defendant no.1 is the outcome of suspicious circumstances and hence it never gives any right to the defendant no.1.
39. In this case, defendant no.1 produced said Will which is marked as Ex.D7 and it is a registered Will registered before Sub Registrar office, Basavanagudi, Bengaluru. On perusal of this Ex.D7, it shows that Kaveramma has executed Will in favour of defendant no.1 who is her only son in respect of 49 CT0028_O.S._7832_1998_Judgment_ .
suit schedule property on 14/11/1994. The evidence on record clearly shows that Kaveramma died on 29/7/1998. In this case defendant no.1 in order to prove the execution of Will he examined himself as DW.1. He filed affidavit evidence in lieu of his examination in chief. In his examination in chief, he reiterated the contention taken in the written statement. He produced said original Will which is marked as Ex.D7.
40. In the cross-examination, DW.1 denied that at the time of execution of Ex.D7, Kaveramma was not in sound state of mind. He further denied that Kaveramma has not executed Will as per Ex.D7 and it is created by him. In this case, defendant no.1 in order to prove the execution of the Will has examined one of the attesting witness to the said Will as DW.2. He filed affidavit evidence in lieu of his examination in chief. In his evidence, he stated that he know Smt. Kaveramma and during her lifetime she had executed 50 CT0028_O.S._7832_1998_Judgment_ .
registered Will dated 14/11/1994 bequeathing her property in favour of her son Rajashekar and said Will executed before Sub Registrar office and she was in a sound mind and physically healthy and he was one of the witness to the said Will and said Will has been read over to him and also to Kaveramma and after her signature, he has signed the Will as one of the attesting witness. He identified his signature on the Will and his signature is marked as Ex.D7(b). He also identified the signature of Kaveramma on the said Will and her signature is marked as Ex.D7(a). In the cross- examination he denied that Kaveramma has not executed Will as per Ex.D7 in favour of defendant no.1.
41. In this case, defendant no.1 also examined son of the Deed Writer as DW.3. In his evidence, he stated that his father has drafted the Will dated 14/11/1994 and his father has signed as a scribe to the said Will and he identified the signature of his 51 CT0028_O.S._7832_1998_Judgment_ .
father on Ex.D7 and signature of his father is marked as Ex.D7(c). In the cross-examination he denied that he is giving false evidence at the instance of defendant no.1.
42. Now, I will consider whether Kaveramma has executed Will as per Ex.D7 in favour of defendant no.1 and whether it is a genuine Will or not? It is pertinent to note that, as per Section 68 of Indian Evidence Act and under Section 63 of Indian Succession Act in order to prove due execution of the Will atleast one of the attesting witness has to be examined.
43. It is not in dispute that Ex.D7 is a registered Will. In this case defendant no.1 in order to prove the due execution of the Will he has examined one of the attesting witness by name S.L.Iyar as DW.2. The evidence of DW.2 clearly shows that Kaveramma during her lifetime had executed registered Will dated 14/11/1994 bequeathing her 52 CT0028_O.S._7832_1998_Judgment_ .
property i.e., 'A' schedule property in favour of defendant no.1 and she executed said Will before Sub Registrar. Further evidence of DW.2 also clearly shows that at the time of execution of the Will, Kaveramma was in sound state of mind and physically healthy. Further evidence of DW.2 clearly shows that Kaveramma after knowing the contents of the Will has affixed her signature. DW.2 also knowing the contents affixed his signature after Kaveramma put her signature to the said Will. In this case Advocate for plaintiff has cross-examined DW.2. Nothing has been elicited from the mouth of DW.2 to disbelieve his evidence. Hence evidence on record clearly shows that at the time of execution of the Will Kaveramma was sound state of mind. DW.4 also in her cross- examination admitted that till 1997, except age related disease her mother had no other disease. She further admitted that till 1997 used to do all other work independently. It clearly shows that during the year 1994 at the time of execution of the Will 53 CT0028_O.S._7832_1998_Judgment_ .
Kaveramma was sound state of mind. Further, evidence of DW.2 clearly shows that Kaveramma after knowing the contents of the Will she has affixed her signature.
44. DW.3 is the son of scribe of the Will. He identified the signature of his father on the said Will. It shows that the father of DW.3 has drafted Will as per instruction given by Kaveramma. It is pertinent to note that, Kaveramma has executed Will on 14/11/1994 and she died on 29/7/1998. It shows that after execution of Will, Kaveramma was alive nearly about 4 years. It shows that at the time of execution of the Will, Kaveramma was sound state of mind and after knowing the contents of Ex.D7, she affixed her signature to the said Will. Hence profounder of the Will discharged his onus by proving that testator has executed Will in presence of attesting witness. Examination of one of the attesting witness submission to prove the execution of the Will. DW.2 is 54 CT0028_O.S._7832_1998_Judgment_ .
one of the attesting witness to the Ex.D7 and his evidence clearly shows that Kaveramma after knowing the contents of the Will has executed the same in favour of defendant no.1. DW.1 in his cross- examination denied that he has created Ex.D7. Nothing has been elicited from the mouth of DW.1 to disbelieve his evidence with regard to due execution of Will by the testator Kaveramma. The evidence on record clearly shows that 'A' schedule property is the absolute property of Kaveramma and she had absolute right to execute Will in respect of 'A' schedule property. Accordingly, she has executed Ex.D7 in favour of her only son who is defendant no.1. In this case, plaintiff has not adduced any suspicious circumstances relating to execution of Will. On the other hand, defendant no.1 has adduced cogent evidence to prove the due execution of Will. Hence, defendant no.1 has duly proved due execution of Will as per Section 68 of Indian Evidence Act r/w Section 63 of the Indian Succession Act. Hence, Ex.D7 is the 55 CT0028_O.S._7832_1998_Judgment_ .
genuine Will executed by Kaveramma in respect of suit schedule property in favour of defendant no.1. Further, the said Will was acted upon after the death of Kaveramma. In this case, there are no any such suspicious circumstances to doubt the genuineness of Ex.D7.
45. It is also important to note that, Kaveramma before executing Ex.D7, earlier she had executed two Wills in respect of the suit schedule property in favour of defendant no.1 as per Ex.D21 and Ex.D22. The evidence on record clearly shows that Kaveramma has executed Ex.D21 Will on 4/4/1990 and later after revoking the said Will she has executed another Will as per Ex.D22 on 27/2/1992 in favour of defendant no.1. Further evidence on record clearly shows that after revoking Ex.D22 Will she had executed fresh Will as per Ex.D7 on 14/11/1994 in favour of defendant no.1 in respect of the suit schedule property. Ex.D7 is a genuine Will 56 CT0028_O.S._7832_1998_Judgment_ .
and it is duly executed by Kaveramma in favour of defendant no.1.
46. It is pertinent to note that once execution of subsequent Will is proved, former Will is automatically rendered redundant. In this case, defendant no. 1 has duly proved due execution of Ex.D7 by examining one of the attesting witness. Hence earlier Will i.e., Ex.D21 and Ex.D22 in view of the subsequent Will i.e., Ex.D7, the former Wills are automatically rendered redundant. Further evidence on record clearly shows that after marriage plaintiff and defendants 2 to 4 are residing in their husband's houses and defendant no.1 has lookafter his mother and hence Kaveramma who is mother of defendant no.1 our of her love and affection a defendant no.1 has looked after her well she has executed Ex.D7 Will in favour of the defendant no.1. Hence Ex.D7 is a genuine Will and duly executed by Kaveramma in favour of defendant no.1. Defendant no.1 has proved 57 CT0028_O.S._7832_1998_Judgment_ .
additional issue no.1 framed on 31/7/2008, whereas plaintiff failed to prove additional issue no.4 framed on 13/2/2012. Accrodingly, I answer additional issue no.1 framed on 31/7/2008 in the affirmative and additional issue no.4framed on 13/2/2012 in the negative.
47. ADDITIONAL ISSUE NO.5 AND 7 FRAMED ON 13/2/2012: Now, I will consider both the issues together for the sake of brevity.
48. Plaintiff contended that sale deeds dated 22/5/1998 and 20/6/1998 executed by Kaveramma and defendant no.1 in favour of defendant no.11 are illegal and not binding on her. The evidence on record clearly shows that Kaveramma was the absolute owner of 'A' schedule property. While answering additional issue no.1 framed on 31/7/2008, it is held that Kaveramma has executed Will as per Ex.D7 on 14/11/1994 in favour of defendant no.1. It is pertinent to note that, even though Kaveramma has 58 CT0028_O.S._7832_1998_Judgment_ .
executed her Will in favour of her son on 14/11/1994, but said Will come into force only after the death of testator. The evidence on record clearly shows that Kaveramma was the absolute owner of 'A' schedule property and she has executed Will in favour of defendant no.1 as per Ex.D7. It appears from the evidence on record that Kaveramma and defendant no.1 have sold portion of the suit schedule property under two separate sale deeds dated 22/5/1998 and 20/6/1998 in favour of defendant no.11 for valuable consideration. The evidence on record clearly shows that 'A' schedule property was the absolute property of Kaveramma and she has executed Will as per Ex.D7 on 14/11/1994. Hence, Kaveramma and defendant no.1 are the owners of 'A' schedule property. It appears from the evidence on record that for legal necessity and benefit of the estate, Kaveramma and defendant no.1 have sold portion of 'A' schedule property in favour of defendant no.11 under two separate sale deeds. As already stated that 59 CT0028_O.S._7832_1998_Judgment_ .
Kaveramma was the absolute owner of 'A' schedule property and she has executed Will in respect of 'A' schedule property in favor of defendant no.1. Hence, Kaveramma and defendant no.1 being the owners of 'A' schedule property have got absolute right to alienate the 'A' schedule property. Accordingly, they have sold portion of 'A' schedule property under two sale deeds in favour of defendant no.11. The said sale deeds are legal and valid and are binding on the plaintiff. Morover, plaintiff has no right over the suit schedule property and suit schedule property is not the joint family of plaintiff and defendant no.1 to 4 and hence defendant no.1 has no right to question the alienation made by Kaveramma and defendant no.1 in favour of defendant no.11. The sale deeds are legal and valid and are binding on plaintiff. Plaintiff failed to prove additional issue no.5 and additional issue no.7 framed on 13/2/2012. Accordingly, I answer both the issues in the negative.
60 CT0028_O.S._7832_1998_Judgment_ .
49. ADDITIONAL ISSUE NO.9 FRMAED ON 13/2/2012: In this case, eventhough defendant no.1 contended that plaintiff has not properly valued the suit, but he has not adduced any evidence in support of his contention. Hence in the absence of cogent evidence it cannot be said that plaintiff has undervalued the suit. Defendant no.1 failed to prove additional issue no.9. Accordingly, I answer additional issue no.9 framed on 13/2/2012 in the negative.
50. ADDITIONAL ISSUE NO.10 FRAMED ON 13/2/2012: It appears that my predecessor in office has wrongly framed this issue. Accordingly, this issue has been deleted.
51. ADDITIONAL ISSUE NO.1 FRAMED ON 7/7/2012: In this case, defendant no.12 contended that he is the bonafide purchaser of portion of the suit schedule property. The evidence on record clearly shows that suit schedule property was the absolute property of Kaveramma. It is not the joint family 61 CT0028_O.S._7832_1998_Judgment_ .
property of plaintiff and defendant no.1 to 5. Plaintiff has no right over the suit schedule property. The evidence on record clearly shows that defendant no.11 has purchased portion of the 'A' schedule property under two registered sale deeds dated 22/5/1998 and 20/6/1998 for valuable consideration. Further evidence on record clearly shows that during the pendency of this suit, defendant no.12 has purchased said portion of suit schedule property from defendant no.11. 'A' schedule property was the absolute property of Kaveramma and she had executed Will in favour of defendant no.1. Hence, 'A' schedule property is the absolute property of Kaveramma and defendant no.1 and they have got every right to alienate the suit schedule property. Accordingly, they have sold portion of 'A' schedule property under two registered sale deeds in favour of defendant no.11 and thereafter defendant no.12 has purchased said property from defendant no.11 under registered sale deed dated 5/7/2010.
62 CT0028_O.S._7832_1998_Judgment_ .
52. In this case, defendant no.12 examined himself as DW.8. He filed affidavit evidence in lieu of his examination in chief. He produced the certified copy of the sale deed which is marked as Ex.D28. Further he has produced katha certificate, katha extract and tax paid receipt in respect of the property purchased by him which are marked as Ex.D29 to Ex.D31. It shows that after purchase of the property by defendant no.12 from defendant no.11 katha was changed in his name and he is paying tax. It appears that since 'A' schedule property is the absolute property of Kaveramma and defendant no.1, defendant no.11 after making proper enquiry has purchased portion of the schedule property under two separate sale deeds. Further, defendant no.12 has purchased said property from defendant no.11 for valuable consideration. Hence, evidence on record clearly shows that defendant no.12 is the bonafide purchaser of portion of 'A' schedule property. Defendant no.12 proves additional issue no.1 framed 63 CT0028_O.S._7832_1998_Judgment_ .
on 7/7/2012. Accordingly, I answer said issue in the affirmative.
53. ADDITIONAL ISSUE NO.8 FRAMED ON 13/2/2012 AND ADDITIONAL ISSUE NO.2 FRAMED ON 7/7/2012: Now, I will consider both the issues together for the sake of brevity.
54. In this case, defendant no.1 contended that relief of declaration pertaining to two sale deeds is hopelessly barred by law of limitation. Similarly defendant no.12 also contended that suit of the plaintiff is barred by law of limitation.
55. In this case, defendant no.1 examined himself as DW.1 and where as defendant no.12 examined himself as DW.8. In their evidence also they stated the above said facts. The evidence on record clearly shows that defendant no.11 has purchased portion of 'A' schedule property under two registered sale deeds dated 22/5/1998 and 20/6/1998 for valuable consideration from defendant no.1 and his 64 CT0028_O.S._7832_1998_Judgment_ .
mother Kaveramma. The evidence on record clearly shows that Kaveramma died on 29/7/1998. The plaintiff has filed this suit in the year 1998. The evidence on record clearly shows that father of the plaintiff died in the year 1973-74 but plaintiff kept quite and slept over all these years and filed this suit in the year 1998. If plaintiff and defendant no.1 to 5 have got any alleged share in the suit schedule property, they ought to have filed suit after the death of their father in the year 1974 itself, but plaintiff has filed the suit in the year 1998 after lapse of more than 24 years and thereafter alleged amendment sought in this case in respect of the sale deed in favour of defendant no.11 is concerned, is after lapse of nearly 14 years. Further evidence on record clearly shows that even though defendant no.11 has purchased portion of the suit schedule property in the year 1998, but at the time of filing the suit, plaintiff has not impleaded defendant no.11 as a party to the suit. The plaintiff slept over the matter all along more than 14 65 CT0028_O.S._7832_1998_Judgment_ .
years and thereafter impleaded defendant no.11 as a party to the suit during the year 2012. Plaintiff has not challenged the two sale deeds dated 22/5/1998 and 20/6/1998 at the time of filing the suit and not sought any relief against defendant no.11, but plaintiff has impleaded defendant no.11 during the year 2012 after lapse of 14 years. As per Article 58 of the Indian Limitation Act, the plaintiff ought to have sought for the relief of declaration within three years from the date of registration of the sale deeds. The evidence on record clearly shows that even though defendant no.11 has purchased portion of the 'A' schedule property under two separate sale deeds dated 22/5/1998 and 20/6/1998, but plaintiff sought for the relief of declaration in respect of the said sale deeds only in the year 2012 by impleading defendant no.11 as a party to the suit. Hence, suit of the plaintiff in respect of the declaration pertaining to said sale deeds is hopelessly barred by law of limitation. Defendant no.1 has proved additional issue no.8 66 CT0028_O.S._7832_1998_Judgment_ .
framed on 13/2/2012 and whereas defendant no.12 also proved additional issue no.2 framed on 7/7/2012. Accordingly, I answer both the issues in the affirmative.
56. ISSUE NO. 2 TO 5 AND ADDITIONAL ISSUE NO.11 FRAMED ON 13/2/2012: Now I will consider all these issues together as they are pertaining to reliefs sought by the plaintiff in this suit and for the sake of brevity.
57. Plaintiff filed this suit for the relief of partition and separate possession of 'A' schedule property by metes and bounds and also sought division of schedule item no.B of the property amongst the parties equally and equitably and also sought for the relief of permanent injunction restraining the first defendant from creating any third party interest or to change the katha of the suit schedule property and also sought direction to defendant no.1 to render accounts and also sought decree against defendant 67 CT0028_O.S._7832_1998_Judgment_ .
no.6 from changing katha in respect of 'A' schedule property. Further plaintiff also sought for the relief of declaration that sale deed executed by Kaveramma and defendant no.1 in favour of defendant no.11 are null and void and not binding on the plaintiff. While answering issue no.1, it is held that 'A' schedule property is the separate property of Kaveramma. Further it is held that 'B' schedule properties are not in existence. While answering additional issue no.1 framed on 31/7/2008, it is held that Kaveramma has executed registered Will in favour of defendant no.1 on 14/11/1994 in respect of suit schedule property. Further while answering additional issue no.5 framed on 13/2/2012, it is held that sale deed dated 22/5/1998 and 20/6/1998 are legal and valid and binding on the plaintiff. Further while answering additional issue no.2, 3 and 6 framed on 13/2/2012 it is held that Kaveramma and defendant no.1 has got absolute right over the 'A' schedule property. While answering additional issue no.8 framed on 13/2/2012 68 CT0028_O.S._7832_1998_Judgment_ .
and additional issue no.2 framed on 7/7/2012, it is held that the reliefs sought by the plaintiff for the relief of declaration in respect of two sale deeds dated 22/5/1998 and 20/6/1998 are not null and void and said sale deeds are legal and valid and binding on the plaintiff. Further, it is also held that defendant no.12 is the bonafide purchaser of the portion of 'A' schedule property.
58. From the evidence on record it is much clear that 'A' schedule property is the absolute property of Kaveramma. Further evidence on record clearly shows that she had executed registered Will dated 14/11/1994 as per Ex.D7 in favour of defendant no.1 in respect of the suit schedule property. Ex.D7 is a genuine Will and by virtue of the Ex.D7, defendant no.1 became the owner of 'A' schedule property. Further evidence on record clearly shows that defendant no.1 and his mother Kaveramma have sold portion of 'A' schedule property 69 CT0028_O.S._7832_1998_Judgment_ .
under two registered sale deeds dated 22/5/1998 and 20/6/1998 in favour of defendant no.11 for valuable consideration. The said sale transaction are legal and valid. Hence by virtue of the said sale deeds defendant no.11 became absolute owner of the portion of 'A' schedule property. Further evidence on record clearly shows that defendant no.12 has purchased above said property from defendant no.11 on 5/7/2010 and by virtue of the said sale deed, defendant no.12 became absolute owner of portion of 'A' schedule property. Further, defendant no.1 by virtue of the Will executed by his mother, he became the absolute owner of remaining portion of 'A' schedule property. Since suit schedule property is not the joint family property of plaintiff and defendant no.1 to 5, the plaintiff or defendant no.2 to 5 are not entitled to any share in the suit schedule property.
59. Further, plaintiff is not entitled for any relief as sought for in this suit since suit schedule 70 CT0028_O.S._7832_1998_Judgment_ .
property is not the joint family property as contended by plaintiff. The property in question is the absolute property of Kaveramma and she has executed valid Will in favour of defendant no.1 and they have sold portion of 'A' schedule property in favour of defendant no.11. Therefore, plaintiff is not entitled for any share or relief in respect of 'A' schedule property. Further, plaintiff has failed to prove existence of 'B' schedule properties. Hence, plaintiff is also not entitled for any share in the 'B' schedule properties. Defendant no.6 is the statutory body. It cannot be restrained by order of permanent injunction as sought for by the plaintiff. The evidence on record clearly shows that defendant no.1 has acquired 'A' schedule property by virtue of the Will and hence he has got every right to get change the katha in his name in respect of his property in the BBMP records. Hence, plaintiff is not entitled for injunction as sought for against defendant no.1. In this case, plaintiff is not entitled for any reliefs as sought for. Accordingly, I answer Issue no.2 71 CT0028_O.S._7832_1998_Judgment_ .
to 5 and additional issue no. 11 framed on 13/2/2012 in the negative.
60. ISSUE NO.6: From my above discussion and reasoning, the suit of the plaintiff is liable to be dismissed. In the result, I proceed to pass the following:
The suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on
computer, Script corrected, signed and then
pronounced by me, in the Open Court on this the
12th day of January 2018.]
[S.H. HOSAGOUDAR]
XXVII Additional City Civil Judge.
BANGALORE.
72 CT0028_O.S._7832_1998_Judgment_ .
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Chandrika
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 T.Rajashekar alias H.T.Rajanna DW.2 S.L.Iyar S/o Late Srinivas Iyar DW.3 Ramakrishna. B.K. DW.4 Sundari DW.5 T.Nagarathna DW.6 H.Muniswamy DW.7 Smt. Kusumalatha DW.8 Mahaveer Jain
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Certified copy of the sale deed dated 6/9/1956 Ex.P 2 Certified copy of the another sale deed dated 2.9.1965 Ex.P 3 Copy of the legal notice issued to Corporation, its revenue officer and Sub Registrar Ex.P 4 Copy of letter to Commissioner Bangalore Mahanagara Palike. Ex.P 5 Original transfer certificate of Chandrika @ Chandramma Ex.P 6 Original cumulative record of Sundari H.T. Ex.P 7 Original transfer certificate of Rajanna H.T. Ex.P 8 Group photo and negatives of And Thammaiah's family.
Ex.P8(a) 73 CT0028_O.S._7832_1998_Judgment_ .
Ex.P 9 Certified copy of the sale deed dated 5.7.2010 executed by defendant no.11 in favour of defendant no.12 Ex.P 10 Certified copy of the encumbrance certificate for the year 2004-12 Ex.P 11 Obsequies ceremony card of Kaveramma Ex.P 12 Death certificate of Kaveramma
4. List of the documents marked for the defendants:
Ex.D1 Certified copy of the Will dated 14.11.1994 Ex.D2 Certified copy of sale deed dated 22.5.1998 Ex.D3 Another certified copy of sale deed dated 20.6.1998 Ex.D4 Original katha certificate Ex.D5 Katha extract Ex.D6 Tax paid receipt Ex.D7 Original Will dated 14.11.1994 Ex.D7(a) Signature of Kaveramma Ex.D7(b) Signature of DW.2 Ex.D7© Signature of father of DW.3 Ex.D8 Certified copy of sale deed Ex.D9 Encumbrance certificate Ex.D10 Another Encumbrance Certificate of the property for the year 1993-97 Ex.D11 Challan showing the treatment given to mother of DW.4 Ex.D12 Out patient slip issued by Jayadeva Hospital 74 CT0028_O.S._7832_1998_Judgment_ .
Ex.D13 Certificate issued by Shekar Hospital Ex.D14 Report of Jayadeva Hospital with regard to medical check up of Smt. Kaveramma Ex.D15 Weekly Hai Bangalore paper dated 21.8.1998 Ex.D16 Another Lankesh Weekly paper dated 3.11.2004 Ex.D17 and Two photographs Ex.D18 Ex.D17(a) And Negatives Ex.D18(a) Ex.D19 Certified copy of the plaint in O.S.No.8651/1997 Ex.D20 Photographs Ex.D20(a) Negatives Ex.D21 Original Will dated 4.4.1990 Ex.D22 Another Will dated 27.2.1990 Ex.D23 Special notice issued by the Corporation Ex.D24 Reply sent by DW.1's mother to the said notice dated 27.1.1987 Ex.D24(a) Signature of DW.1's mother Ex.D25 Certified copy of sale deed dated 5/7/2010 Ex.D26 Memorandum of deposit of title deeds Ex.D27 Certified copy of sale deed dated 22/5/1998 Ex.D28 Certified copy of the sale deed dated 20/6/1998 Ex.D29 Katha certificate Ex.D30 Katha extract Ex.D31 BBMP tax paid receipts Ex.D32 Receipt and Building sanctioned and plan Ex.D33 75 CT0028_O.S._7832_1998_Judgment_ .
Ex.D34 and Two Encumbrance Certificates Ex.D35 [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge, BANGALORE.
76 CT0028_O.S._7832_1998_Judgment_ .
77 CT0028_O.S._7832_1998_Judgment_ .
12/1/2018 Plaintiff-HTN D1- CSP D2,D4, D5 - GRA D5(a), (b) - MRV D6 -TSP D7 to D10- Absent D11(a) (b) - Exparte D12 - MPV For Judgment....
...Judgment pronounced in the Open Court.... (Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
78 CT0028_O.S._7832_1998_Judgment_ .
...Judgment pronounced in the Open Court.... (Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
81 CT0028_O.S._7832_1998_Judgment_ .
82 CT0028_O.S._7832_1998_Judgment_ .