Bangalore District Court
Sri. A.S. Narayana Raju vs A.S. Kupparaju on 6 March, 2017
[C.R.P.67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in
Suits (R.P.91)
IN THE COURT OF THE XLIII ADDL. CITY CIVIL
& SESSIONS JUDGE, BENGALURU. (CCH 44)
Dated: This the 6th day of March, 2017
PRESENT
Sri. V.H. WADAR, B.A., LL.B.,
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU, (CCH-44).
O.S. No.7904/2000
PLAINTIFFS : 1. Sri. A.S. Narayana Raju
S/o Late Akkalaraju
Major, R/at No.94, 3rd Main Road,
Vyalikaval,
Bengaluru-560 003.
Since deceased by his LRs
1(a) Smt. Jaya
W/o Sri. M. Varada Raju
D/o Late Sri. A.S. Narayana Raju
Aged about 64 years,
R/at No.17, 1st Cross,
Rajamahal Vilas Extension,
Bengaluru-560 080.
1(b) Smt. Shanta
W/o Sri. N. Narayana Raju
D/o Late Sri. A.S. Narayana Raju
Aged about 62 years,
R/at No.32, Rajamahal Vilas
Extension, Bengaluru-560 080.
2 O.S.No.7904/2000
1(c) Smt. Savithri
W/o Sri. M.Gopal Raju
D/o Late Sri. A.S. Narayana Raju
Aged about 56 years,
R/at No.283, 4th Cross,
2nd Stage, II Block,
Rajamahal Vilas Extension,
Bengaluru-560 080.
1(d) Smt. Prabha
W/o Sri. K.Narasa Raju
D/o Late Sri. A.S. Narayana Raju
Aged about 52 years,
R/at No.127, HIG, 7th Cross,
3rd Main, 2nd Stage,
Rajamahal Vilas Extension,
Bengaluru-560 094.
1(e) Sri. S.N. Ravikumar
S/o Late Sri. A.S. Narayana Raju
Aged about 50 years,
R/at No.12, Stanberry Court
Penthouse, 60' Road,
Sanjaynagar,
Bengaluru-560 094.
1(f) Sri. K.Shankar
S/o Late Sri. Krishna Raju
Aged about 28 years,
R/at No.12, Stanberry Court
Penthouse, 60' Road,
Sanjaynagar,
Bengaluru-560 094.
1(g) Malati K.
D/o Late Krishna Raju
Aged about 30 years,
R/at Opp. Anjaneya Temple,
Sarakki, Bengaluru.
(By Sri SKP, Advocate)
VS.
3 O.S.No.7904/2000
DEFENDANTS : 1. A.S. Kupparaju
S/o Late Akkalaraju
Major, R/at No.160,
Kumara Park Extension
R.V. Layout,
Bengaluru-560 080.
Since deceased by his LRs
1(a) K. Savithramma
W/o A.S. Kuppa Raju
(Died on 16/07/2006)
1(b) K. Gopala Raju
Aged about 57 years,
1(c) K.Kodanda Raju
Aged about 54 years,
1(d) K. Nagaraju
Aged about 47 years,
LR 1(b) to (d) are sons of deceased 1st
defendant, R/at No.160,
Kumara Park Extension, R.V. Layout,
Bengaluru-560 003
1(e) K. Padma
Aged about 55 years,
No.1164/44, 9th Main Road,
RMV Extension,
Bengaluru-560 080.
1(f) K. Vijaya
Aged about 51 years,
R/at No.37, 1st 'A' Cross,
Near Mekhri Circle,
RMV Extension,
Bengaluru-560 080
.
1(g) K. Shoba,
4 O.S.No.7904/2000
Aged about 45 years,
No.160, Kumara Park Extension,
R.V. Layout, Bengaluru-560 094
1(h) K.Rama
Aged about 42 years,
R/at No.30/31, APT/13,
AECS Layout, Sai Supravi,
Ashwathnagar,
Bengaluru-560 094.
1(i) K.Jyothi
Aged about 37 years,
R/at No.12, 12th Cross,
Between 6th & 8th Main,
Malleshwaram,
Bengaluru-560 003.
LRs 1(e) to (i) are the daughters of
deceased 1st defendant.
2. A.S. Chinnaswamy Raju
S/o Late Akkalaraju
Major,
R/at No.294, Upper Palace, Orchids,
Bengaluru-560 006.
3. Sri. V. Srinivas Raju
S/o Sri. V. Varada Raju
Aged about 56 years,
R/at No.12, 10th Main,
RMV Extension,
Bengaluru-560 080.
4. Sri. V. Ramaprasad
S/o Sri. V. Varada Raju
Aged about 50 years,
R/at No.155/A, 1st Floor,
9th Main, RMV Extension,
Bengaluru-560 080.
5 O.S.No.7904/2000
5. Smt. Prema
W/o Late Sri. Rama Raju
Aged about 58 years,
R/at No.1395, 8th Main Road,
9th Cross, BTM Layout,
Bengaluru-560 078.
6. Smt. Shashikala
W/o Sri. K.Gopal Raju
Aged about 54 years,
R/at No.160, RV Layout,
Kumara Park Extension (West),
Bengaluru-560 020.
7. Smt. Shyamala
W/o Sri. Satyanarayana Raju
Aged about 53 years,
R/at No.137, Ground Floor,
G.D. Extension,
Bengaluru-560 003.
8. Smt. Sumithra
W/o Sri.Bangaraja Raju
Aged about 48 years,
R/at No.1395, 8th Main Road,
9th Cross, BTM Layout,
Bengaluru-560 078.
9. Sri. V. Prakash
S/o Sri. V. Varada Raju
Aged about 45 years,
R/at No.8, 6th Cross, 5th Main,
KEB Layout, Geddalahalli,
Bengaluru-560 094.
10. Ms. Rekha D.
D/o Sri. V. Varadaraju
Aged about 43 years,
6 O.S.No.7904/2000
R/at No.2/1, 3rd Main Road,
GD Park Extension, Vyalikaval,
Bangalore-560 003.
11. Anupama V.
D/o Sri. V. Varadaraju
Aged about 40 years,
R/at No.97, 8th Cross,
RMV Extension, Sadashivanagar
Bengaluru-560 080.
12. Smt. Mangamma
W/o Late Sri. Doraiswamy Raju
Aged about 78 years,
R/at No.2/1, 3rd Main Road,
GD Park Extension, Vyalikaval,
Bengaluru-560 003.
13. Smt. Indiramma
W/o Sri. Chinnaswamy Raju
Aged about 65 years,
R/at No.294, Upper Palace Orchards,
Bangalore-560 006.
(D1(a) to (i) by Sri ACY
D2 by Sri CSS
D3 to D13 by Sri MM/ACY,
Advocates)
Date of Institution of the suit: 23/11/2000
Nature of the Suit (Suit for
pronote, suit for declaration and Suit for Partition
possession, Suit for injunction,
etc,) :
Date of the commencement of 28/02/2011
recording of the Evidence:
Date on which the Judgment was 06/03/2017
pronounced:
7 O.S.No.7904/2000
Total Duration : Year/s Month/s Day/s
16 03 13
(V.H. WADAR)
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGMENT
Plaintiff has filed this suit for partition and separate possession of his 1/3rd share in the suit schedule 'A' and 'B' properties, to render accounts of joint family business incorporated in 'A' and 'B' schedule properties. To divide equally by metes and bounds the joint family properties, investments, improvements, holdings, earnings of the joint family in the business, ventures, movable and immovable properties held by those business and ventures detailed in the 'A' and 'B' schedule properties and handover and deliver possession of plaintiff's share separately and mesne profits.
2. The facts in brief are that the propositus of the family of plaintiff and defendants was Akkal Raju. Akkal Raju had a brother by name Subbaraju and a sister by name Ramakka. They came to Bengaluru for livelihood and started working at agricultural land as laborers. The said Akkal Raju had three sons, i.e., plaintiff-deceased Narayana Raju, defendant No.1- deceased 8 O.S.No.7904/2000 Kuppa Raju and defendant No.2 Chinnaswamy Raju and two daughters. They are all constitute a joint family. Said Akkal Raju had brother Subbaraju who has no issues and sister Ramakka who has also no issues. They are all constitute a joint family and they are residing in joint.
Plaintiff was working in the fields as a laborer. Family of plaintiff and defendants had purchased a bullock cart and plaintiff was running the bullock cart for hire, for transporting fodder, jelly, sand, size stone and other building construction materials for the building contractors. The plaintiff acquainted with building contractors and on their suggestions and guidance the joint family commenced a small sub-contract business out of earnings contributed by the plaintiff's savings and labour. The nucleus and capital was also contributed by Akkal Raju and his elder brother Subbaraju. The sub-contracting business undertaken by the said joint family constituted the major nucleus in the form of hard labour of the plaintiff, as defendant No.1 Kuppa Raju was a school going child and he could not contribute either labour or skill. The defendant No.2 Chinnaswamy Raju was not born at that time. Thus on the sweat and hard labour of 9 O.S.No.7904/2000 plaintiff mainly the said business was run. The plaintiff and his father Akkal Raju and his elder brother Subbaraju were engaged in agriculture to keep the family comfortably.
Plaintiff contends that on the joint exertion of the plaintiff, defendants and also their father late Akkal Raju, the said business of joint family of sub-contract thrived well. The sub- contract on piece work basis started pouring in and few to be named are the municipality works like formation of roads, drainage, water lines, etc. It was during that period, out of the savings and labour of the plaintiff and also the joint family earnings a site was purchased at Pipeline Road, Malleswaram and in the said site a house was also built by the joint family. Plaintiff contends that their father Akkal Raju, uncle Subbaraju, plaintiff, defendant Nos.1 and 2 and Ramakka were started living in the said house until 1960. When the family grew, some acquisitions took place, houses were built and for convenience sake each family started living separately only for mess and welfare. There was no division of properties or in status of the said joint family. 10 O.S.No.7904/2000
Plaintiff further states that when the family business developed by leaps and bounds and when more contracts were awarded, the joint family used to lend the names of either of the defendants, for convenience, either for the purpose of tax or otherwise and later on family purchased several trucks, lorries for the purpose of the family business out of the joint family funds and used the said vehicles and machinery like concrete mixers, etc., in the construction business. The family also purchased a minor car. The trucks and lorries wee sometimes sent to other contractors on hire and that for the sake of convenience, the joint family floated several construction companies in different and various names with various combination of family members, for example ASK and Brothers, Raju and Co., etc. Some are partnership firms, some registered public or private limited companies depending upon business convenience and better business prospects. However, the nucleus and capital for all the said concerns and business was invariably funded and contributed from out of the joint family resources and capital funds, are morefully described in schedule 'A' and most of these business concerns are comprised with the defendants and the 11 O.S.No.7904/2000 plaintiff, the three brothers and children of all the defendants and plaintiff. The first defendant started looking after mostly the accounts and paper work and occasional supervision, as he was educated. The plaintiff was looking after overall supervision and directly in-charge of the execution of the work at the project sites and second defendant assisted the plaintiff. The said joint family ventures were run smoothly with the distribution of work amongst three brothers, the plaintiff and defendants, i.e., administration by first defendant Kuppa Raju, execution of the work by the plaintiff and assistance by second defendant Chinnaswamy Raju.
Plaintiff submits that the family business and joint ventures had successfully completed the various constructions, contracts like building of Veterinary College at Hebbal, Trust Board building, ESI Hospital buildings, quarters of HAL and HMT, a bridge near Bannur, a canal near Nanjungud, HAL runway, Bengaluru, Kabini reservoir project and canals, hospital building at Davanagere and Bellary, aqueducts and canals in Mysore District, Chinnaswamy Stadium at Bengaluru and other various prestigious projects. On account of successful completion of 12 O.S.No.7904/2000 those projects the family business earned a good reputation, name and fame in the construction line, apart from earning heavy profits.
Plaintiff contends that during the said years, in order to produce building materials for the family business, several construction companies, factories were also floated by the joint family in different names and styles as M/s. Bangalore Construction Company, Raju and Co., ASK and Brothers, Mysore Concrete Pipe Co., Jyothi Tiles and other firms and companies with the family members as partners or directors. The joint family of the plaintiff and defendants had also started joint ventures with one A.Chamaraju, who is none other than brother- in-law of first defendant and completed several projects under the said joint ventures, such joint ventures concerning of the said joint family being Mani and Co., A. Chamaraju and Co., the reputed among such.
Plaintiff contended that defendant No.2 had left to Hyderabad to execute and complete some of the projects at Hyderabad by obtaining the contract works in favour of joint 13 O.S.No.7904/2000 concerns, after getting some experience under the plaintiff and defendant No.1. Raju and Co., floated for the said purpose out of the nucleus and resources from joint family ventures, projects and business.
When defendant No.2 returned from Hyderabad, the joint family consisting of defendants and plaintiff ventured to create a family trust under the name and style 'A.S.Kuppa Raju and Brothers Family Trust'. Wherein the defendants and plaintiff including male and female members of each branch constituted the trust. Each branch, i.e., members of the branch of A.S.Kuppa Raju, members of the branch of the plaintiff and members of the branch of defendant No.2 represented 1/3rd share each in the said trust floated from the joint family nucleus and its resources. The said A.S.Kupparaju and Brothers Family Trust came into existence by a deed of trust dated 15/07/1974, wherein Varadaraju referred to as the author of the trust on the one part, defendant No.1 as first party of the second part, plaintiff is second party of the second part and defendant No.2 is third party of the second part. 24 members of the said joint family whose names are mentioned on page 3 to 6 of the said deed were 14 O.S.No.7904/2000 beneficiaries. The said trust was formed for the absolute benefit of the beneficiaries. The beneficial interest conferred under this deed of trust is so far as it relates to the male beneficiaries referred to above shall be held and enjoyed by such beneficiaries as joint family properties with all incidents known in Hindu Law of the respective beneficiary as male beneficiaries as kartha, his wife and their children as members and in case of other unmarried male beneficiaries, such male beneficiaries, his wife a the said trust entered and their children as are born to them after their marriage as members. The said trust entered into lease with the owner of land at Race Course Road , Bengaluru and built a building to run a hotel business under the name and style "Hotel Chalukya" a successful venture, which has encouraged the family and enriched it financially.
A.S.Chinnaswamy Raju Brothers Family Trust came into existence under the deed dated 13/01/1978 by separate deed on the lines of above said trust by name A.S.Kupparaju and Brothers Family Trust. The said trust was created, consisting of the members of the joint family of the defendants and the plaintiff, i.e., members of male and female of each family of plaintiff and 15 O.S.No.7904/2000 defendants constitute the trust. Each family, i.e., members of the family of defendant No.1, members of the family of plaintiff and members of the family of defendant No.2 are represented 1/3rd share each in the said trust and floated from joint family nucleus and its resources. The said ASK and Brothers Family Trust entrusted the management of lodging and restaurant business in the said Hotel Chalukya business to A.S. Chinnaswamy Raju Brothers Family Trust for convenience. Of course later the management of different restaurants in the said building was given on sub-contract to different persons. All the three families are entitled to the proceeds of the said establishment and above mentioned three trusts.
Plaintiff contends that the proceeds from the Hotel Chalukya business which is a part of A.S.Kuppa Raju and Brothers Family Trust, the proceeds from the other three trusts stated above, and also the proceeds with the nucleus and resources from the joint family of the defendants and plaintiff were utilized to build and run 'Hotel Kanishka' at Gandhinagar, Bengaluru and also 'Hotel Atria' at Palace Road.
16 O.S.No.7904/2000
The plaintiff submits that out of the said joint family business, several valuable properties both immovable and movable were purchased in the names of several major and minor children of the parties, who were only the name lenders, as the said major and minor children are not having any avocation and independent source of income.
The plaintiff submits that a make believe document release deed dated 05/01/2000 has been created by the first defendant, wherein the minor and major children releasing some of their rights in the immovable property purchased in their name as stated above, in favour of female members of the family, as the said properties are joint family properties of plaintiff and defendants. In the first line on page 2 of the deed is clear that A.S.Kupparaju purchased the subject matter of the deed from out of ancestral and self acquired money, which is the best evidence to show that there was no partition in the family of plaintiff and defendants.
The immovable properties purchased out of the joint family nucleus and resources are listed in the schedule 'B'. The plaintiff 17 O.S.No.7904/2000 states that the schedule properties, i.e., schedule 'A' and 'B' properties and the value thereof are not exhaustive. The plaintiff reserves his right and liberty to add more details as and when he gets the full knowledge and information about the joint properties under those categories. Defendant No.1 being literate and he is in management of the properties, joint family business concerns, projects, firms, companies and trusts of the joint family, they are in possession of original documents pertaining them, as and when he come to know of the properties of the joint family, he bring them on record in this suit.
Father of the plaintiff and defendants Akkal Raju died in the year 1981 leaving behind the plaintiff and defendant Nos.1 and 2 and two daughters. There was no partition in the joint family of the said Akkal Raju. Joint family of the plaintiff and defendants still continued and the joint family nucleus remained intact till date. Defendants have been doing business jointly along with plaintiff. Currently the constructions are going on for Atria Villa under the joint family business concern, i.e., M/s. Atria Holdings in the land purchased by joint family decades ago. The nucleus is intact without division till date, though only the 18 O.S.No.7904/2000 children of the defendants have been surreptitiously included in various partnerships and companies only for the purpose of enjoying the tax benefits and they represent only the shares of their respective fathers and only name lenders and as such inclusion of these names in various concerns will not confer any share or benefit on them, individually as if it is self acquisition, in any way as such the plaintiff has got definite 1/3rd share in all the business concerns, joint family properties, various amalgamations of business and properties including Atria Holdings, movable and immovable properties of the joint family.
Plaintiff contends that family of the plaintiff and defendants are filing income tax returns as HUF till date. The value of the properties, the share in the business concerns, etc., as indicated in the plaint is actual value though it does not co-relate with what is indicated in I.T returns.
The plaintiff states that acts of both the defendants and their children have given rise to a different feeling and created suspicion and doubt their dealings in respect of joint family business concerns and properties. One important dealing of 19 O.S.No.7904/2000 defendants and their children, is that they have entered into a contract of establishing a power project with the Government of Karnataka in the name and style of 'Atria Power Corporation, M/s. Atria (Hydel) Power Corporation', created out of joint family resources, firms, companies, trusts and projects undertaken by the said joint family, wherein fraudulently the name of the plaintiff is not included in the agreement which according to plaintiff is a deliberate intention of the defendants to deprive him of the benefits and profits of the said projects and similar is his position in respect of Hotel Atria. The change of attitude by the defendants with respect to monthly payments, to the plaintiff concerning Hotel Kanishka and other concerns, which though he was assured of certain payments for his expenses, he has not been paid the same. The defendants have shown several joint family properties as collateral security and offered the said properties as guarantees to borrow huge sums of money from several organizations and financial institutions for the purpose of execution of the said power and hotel projects. Though plaintiff has not given any consent for using these properties as collateral securities and guarantees for the above mentioned borrowings. 20 O.S.No.7904/2000 Hence defendants committed breach of trust, cheating and misappropriation by playing fraud on the plaintiff in offering several joint family properties as collateral and as guarantees to borrow huge sums without including the name of the plaintiff or his legal heirs in the said power, hotel and other projects. The defendants have hatched a criminal conspiracy not only against the plaintiff but also female members of the joint family. Plaintiff states that inspite of indifferent attitude of the defendants towards the feelings of the plaintiff, he had kept quite for the sake of reputation of the family enjoyed in the Society.
Plaintiff states that total assets of the joint family properties and joint family business concerns are approximately worth Rs.200 crores excluding the goodwill and the joint family has filed income tax returns as Hindu Undivided Family.
Plaintiff states that a letter demanding partition was sent to the defendants by his son plaintiff No.1(e) S.N.Ravikumar and plaintiff's son agreed for compromise. But the defendants have refused to enter into compromise. Defendants have simply stated in their reply letter that there was no joint family of the plaintiff 21 O.S.No.7904/2000 and defendants and also taken unjustifiable and unrealistic stand that plaintiff was gone out of the joint family fold and states that joint family severed long back. Hence there is no partition of the joint family properties, ventures, concerns much against the reality.
Further plaintiff contends that defendants have sent words with one Venkateshan, offering a sum of Rs.1 Crore only towards full and final settlement of the share of the plaintiff. The said offer does not have any basis or mathematical formula for which plaintiff did not agree. Hence plaintiff has caused a legal notice dated 14/07/2000 to the defendants demanding partition and separate possession of his legitimate share in the suit schedule properties, firms, companies and business concerns. Defendants had issued reply dated 14/08/2000 with untenable reply.
Hence plaintiff has filed this suit for seeking partition of the plaintiff's 1/3rd share in movable and immovable properties of the joint family, and plaintiff's 1/3rd share in investments, improvements and holdings either in the name of the plaintiff, or in the name of defendants or in the name of any other member 22 O.S.No.7904/2000 of the joint family consisting of plaintiff, defendants, their respective wives and children or any other persons claiming under or through them. Besides that the plaintiff is also entitled to the actual and true accounts of the joint family business concerned till date as the official accounts submitted to the various authorities will not suffice and depict the real accounts and plaintiff states that defendants are not entitled to use individually the names of M/s. A.S.K. and Brothers and M/s. A.S.K. Brothers Ltd., and the names of other companies listed in schedule 'A' under which the plaintiff has 1/3rd share. Further he has also states that he will not be held responsible for the guarantees and securities for the various projects being done individually without his knowledge and without including his name, floated from resources from the undivided joint family properties. The plaintiff further states that goodwill of the joint family business cannot be abused any longer to his detriment and he will have to be compensated for the unauthorized use of the name of the business individually without his consent. The cause of action arose in October 1999 when plaintiff No.1(e) Ravikumar demanded to settle the matter, on the date on which the 23 O.S.No.7904/2000 defendants replied to him, subsequently when the plaintiff got issued legal notice to the defendants for partition and separate possession of his share in the joint family concerns and on the date on which the advocate for plaintiff received untenable reply from the defendants through their counsel in the month of August 2000. The suit is valued as per separate valuation slip and proper court fee is paid on the plaint. Hence this suit.
3. Defendants appeared through counsel. Defendant No.1 filed his written statement contending that the suit of the plaintiff is not maintainable either in law or on facts of the case. The plaintiff is not entitled to the prayer sought in the suit.
Defendant No.1 has taken contention that plaintiff was separated from the joint family of his father late Akkal Raju and his sons defendant No.1 and 2 on 23/01/1967. Since 1967, plaintiff is residing separately and he was doing separate business. There is no joint family of the defendants and father of the plaintiff and defendant No.1 and 2 Akkal Raju. The defendant No.1 contends that wife of defendant No.1 Savithramma, defendant No.2 and one Sri Kuppaswamy had 24 O.S.No.7904/2000 purchased suit 'B' schedule item No.1 and 2 bearing Sy.No.99 and
100. There were some misunderstandings within the members of defendant No.1's family and family of defendant No.2 in respect of item No.1 and 2 of the suit property. These two lands are separate and self acquired properties of defendant No.1's wife. To resolve the dispute that had crept up within the two family members, i.e., defendant No.1 and defendant No.2, plaintiff has played major role to resolve the said dispute along with one N.C.Madhu Raju, son-in-law of defendant No.1 and A.C.Chandrasekar Raju, son of late A.Chamaraju. Further defendant No.1 contends that plaintiff was instrumental in bringing out an amicable settlement between first defendant's wife and her sons and daughters and second defendant and their children. Subsequently, family arrangement was drawn on 17/11/1996. In the said family arrangement, party No.1 is first defendant, party No.11 is second defendant and party No.22 is plaintiff. There is a recital in the said memorandum of family arrangement dated 17/11/1996 that plaintiff had left the joint family of the defendant Nos.1 and 2 and their father late Akkal Raju on 23/01/1967 and started residing separately. Hence there 25 O.S.No.7904/2000 is no joint family of plaintiff and defendants. The status of joint family of plaintiff and defendants was severed in the year 1967. Suit schedule properties shown in 'A' schedule and 'B' schedule are not joint family properties of the plaintiff and defendants. Hence plaintiff is not entitled to 1/3rd share as prayed for.
Defendant No.1 has taken contention that the documents under which each property was acquired by either of the defendants or other members of their families, sources of their individual income shown in income tax and wealth tax returns as that they are self acquired properties of the defendants and their family members.
Defendant No.1 has further contended that the business concerns mentioned in schedule 'A' of the plaint namely Mani & Co., Bangalore Construction Company, Jyothi Tiles, Jyothi Construction Company, and Venkateswara Spun Concrete Pipe Co., are partnership firms constituted under the Partnership Act. An extract of composition of each of these firms to show that there are different sets of partners in these firms including outsiders. They are partners in their individual capacity and none 26 O.S.No.7904/2000 of them represent any joint family. They are not firms where the members of a joint family are carrying on a family business. The 2 firms A.S.K. & Brothers and A.S.K. Builders are firms run by plaintiff and comprise the members of plaintiff's family as its partners. The firms Bharath Builders, Raju and Co., and A.Chamaraju and Co., have become defunct long back. The firm M/s. A.Chamaraju and Co., was dissolved on 09/02/1987. The firm M/s. Srinivasa Enterprises was dissolved on 31/03/1987.
Defendant No.1 submits that the business concerns M/s. Mysore Spun Concrete Pipe Co. (P) Ltd., Kayencee Hotel and Engineering Enterprises (P) Ltd., Sree Ramaleela Developers (P) Ltd., A.S.K. Brothers Ltd., Akkal Raju Finance and Investments (P) Ltd., Sunray Computers (P) Ltd., Atria Power Corporation Ltd., Atria Power Hydel Corporation Ltd., Atria Convergence Technologies (P) Ltd., mentioned in 'A' schedule are Limited Companies promoted by several individuals in their personal capacity, incorporated under the Companies Act, 1956. The funds were contributed by the promoters from their own self- acquired funds. In these companies either plaintiff or the defendants along with outsiders to their family are shareholders, 27 O.S.No.7904/2000 and directors. The company M/s. Access Technologies (P) Ltd., is controlled by the plaintiff's son. The defendants are no way concerned to it. So far as the companies are concerned, from the date of incorporation, in which various subscribers to the memorandum and other persons, as from time to time have become members of the company, are all autonomous body corporates and having a perpetual succession and common seal and the said companies have come into existence in accordance with provisions of the Companies Act. The affairs of these companies are being conducted within the frame work of law and interference in the internal management of the company is not warranted in this case and more particularly at the instance of party like plaintiff.
Defendant No.1 submits that plaint 'A' schedule includes the private trusts declared by various individuals described as authors or settlers with initial corpus, gifts contributed from the authors' personal and individual sources for the benefit of certain beneficiaries chosen by them and provisions of the Indian Trust Act, 1882 govern such trusts. These trusts are M/s. A.S.K. Brothers Family Trust, Subbaraju Family Foundations, 28 O.S.No.7904/2000 Chengamma Family Foundations, A.S.Chinnaswamy Raju and Brothers Family Trust, A.S.Kuppa Raju Family Trust, A.S.Kuppa Raju and Brothers Charitable Foundation Trust. The authors of each of these trusts are different individuals and so also trustees. The beneficiaries have been selected by the said authors themselves. They are not business concerns of joint family. No funds from the so called nucleus of late Akkal Raju family flowed into the corpus or into the accretions to capital fund. The authors of the trust are not members of Akkal Raju family. Hence they are not joint family members as alleged by the plaintiff. The plaintiff himself being a trustee, he cannot set up a title adverse to the interests of the beneficiaries of the trust after accepting its composition, management and control all these years. Plaintiff has no right to claim the firms and companies mentioned in the 'A' schedule as joint family business and properties mentioned in plaint 'B' schedule as properties of joint family.
The suit of the plaintiff is bad for non-joinder of necessary parties. That there are 21 persons including minors, who have acquired title and interest in the said properties described as item No.1 and 2 of plaint schedule 'B' property. They are 29 O.S.No.7904/2000 necessary parties to the suit. The suit is not maintainable against the defendants in the absence of owners of these properties who are necessary parties. Defendant No.1 has taken contention that suit of the plaintiff is barred by limitation and suit is not maintainable for non-joinder of necessary parties. The court fee paid is not proper.
Defendant No.1 contends that father of plaintiff and defendant Nos.1 and 2, deceased Akkal Raju and his brother late Subbaraju hailed from a village called Palyam near Chittor . They migrated to Bengaluru along with their widow sister Ramakka for eking their livelihood. Late Subbaraju was agricultural labourer and father of plaintiff and defendant Nos.1 and 2 late Akkal Raju was working in the house of late Narasimhachar on daily wages with one free meal. Late Subbaraju and Ramakka had no issues.
Defendant No.1 has denied the allegation made by the plaintiff that plaintiff was working in the fields as a labourer while defendant No.1 was school going child and also denied that plaintiff has purchased bullock cart from agricultural labour income and he was running it for hire, that out of the said work 30 O.S.No.7904/2000 he used to save money and supported the family. It is further denied that on account of acquaintance with the building contractors, the joint family commenced a small sub-contracting business out of earnings contributed by the plaintiff's savings and labour and that nucleus and capital was also contributed by late Akkal Raju and his brother late Subbaraju for business undertaken by the family, hard labour of the plaintiff was the main source and constituted major nucleus and that Akkal Raju and Subbaraju were also engaged in agriculture. The said facts are denied by the defendants in toto.
Defendant No.1 contends that he was born in the year 1922 and plaintiff was born in the year 1925. Defendant No.1 studied up to 4th class only. He joined the school in 1928, he was aged about 6 years and plaintiff was aged about 3 years. First defendant left the school after four years in 1932. Plaintiff was aged about 7 years. Thus there is no question of plaintiff working in the fields as a labourer at the tender age of 3 years and that too driving a cart and earning for the family. 31 O.S.No.7904/2000
Defendant No.1 contends that family of the plaintiff and defendants lived in a choultry called Veerabhadrappa choultry on Malleswaram Pipeline Road. Defendant No.2 was born in 1950. Father of the plaintiff and defendant Nos.1 and 2, Akkal Raju was cultivating lands belonging to Veerabhadrappa along with his brother Subbaraju.
Defendant No.1 contends that sister of Akkal Raju and Subbaraju, late Ramakka had got money from the house of her husband after demise of her husband and she has purchased cows and buffaloes and she maintain the house of Akkal Raju and Subbaraju by vending milk in that locality.
The marriage of first defendant was performed by late Ramakka. Family of the plaintiff, defendants, their father and brother of Akkal Raju were lived in a choultry till about the year 1950 and later they shifted to a house of late Ramakka.
Defendant No.1 contends that brother of late Akkal Raju by name Subbaraju and plaintiff had gone back to village due to unable to maintain themselves. Plaintiff was not in Bengaluru till about one or two years after his marriage. Plaintiff returned to 32 O.S.No.7904/2000 Bengaluru at the instance of late Ramakka after the marriage and he shifted his family to Bengaluru.
Defendant No.1 has denied the allegation made by the plaintiff that on the joint exertion of the plaintiff, the defendants and also their father the business of the joint family of sub- contract thrived well and that sub-contracts on piece work basis started purring in like municipality works like forming roads, drainage, etc., and that was during that period, out of the savings and labour of plaintiff and also the joint family earnings, a site was purchased at Pipeline Road Malleswaram and in that site a house was built by the joint family is denied by the defendant.
The defendant No.1 contends that plaintiff returned back to village and he went to Madras along with one Keshava Murthy and whereabouts of plaintiff were not known to the family of the defendants for quite some time. His marriage was performed in the year 1946. Ramakka had brought the plaintiff to Bengaluru by looking his pitiful life.
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Defendant No.1 has denied that plaintiff, defendants and their father Akkal Raju as well as his brother Subbaraju were living together till 1960 in the house at Malleswaram and running joint family business. The defendant No.1 admits that after the plaintiff returned to Bengaluru, he started living with his father Akkal Raju, brothers the defendants and Ramakka at Pipeline, Malleswaram till about the year 1950. Thereafter the family was shifted to Kodandaramapuram where late Ramakka had acquired site by allotment from Co-operative Society and had constructed a house from her own funds. They lived in late Ramakka's house till about the year 1953. Later they moved to the house on Palace Guttahalli Road. Plaintiff was the first one to leave the family about the year 1955-56 and lived separately thereafter.
Defendant No.1 contends that he left school during the year 1932-33 at the age of 10 years. He got a job of a writer on wages of Rs.4/- per day with one late Arunachala Mudaliar of Guttahalli, who was a small scale contractor taking odd jobs and due to his sincere and hard work, said Arunachala Mudaliar who was of advanced age, had taken defendant No.1 as a partner in his contract business, by giving 50% share. He had worked with 34 O.S.No.7904/2000 Arunachala Mudaliar as a partner, for forming road in Nehrunagar, as a working partner. Hence it was the first defendant's individual work and income from the contract business was his self acquisition. Defendant No.1 had taken up piece work contact with contractor Okle Duincan and Co., for the works of the defence department near Mekri Circle. That work continued for 3 years till the end of 1944. The contract was first defendant's individual work. He had not utilized either the nucleus of the family as there was none, nor their labour for executing the work. Defendant No.1 was able to make sufficient profits from this work which was his individual income. From this profit first defendant purchased a dry land of about 7200 sq.ft. out of Sy.No.32 and 33 of Chikksandra village, Kasaba Hobli, Bangalore North Taluk under the registered sale deed dated 02/09/1944 for sale consideration of Rs.4,000/-. Plaintiff was not in Bengaluru during these years.
Defendant No.1 had taken piece work of contract at Nelligudda project near Bidadi. It was also his individual work. This work went on for 3 or 4 years till about 1948. The plaintiff who had returned to Bengaluru after his marriage worked with 35 O.S.No.7904/2000 late A.Chamaraju on piece work contract in the same project during 1948. The contract work taken by the plaintiff jointly with A.Chamaraju was their own individual work, they continued their work even after first defendant left that project.
Defendant No.1 had got the work of City Improvement Trust Board. Second defendant got work of CITB in 1948. It was his individual work. Defendant No.1 had not been associated with his brothers or with his father in these contract works. Later during the year 1949-50 the first defendant got contract work of a project in Mandya. It was also a piece work. Defendant got that piece work contract in Nugu project and so also plaintiff got piece work in his individual name. First defendant executed his work separately and so also plaintiff executed his work separately. There was no clubbing of works either for the investment or for sharing the labour or the profits. In the year 1952, first defendant entered into partnership with one N.Subbaiah and got the work of Ammasandra Anekat near Gauribidanur. Neither the plaintiff nor second defendant was worked with first defendant in any manner. In the later years first defendant had taken up the contract works of BEL in the year 1954, of HMT in 1956-57 in his 36 O.S.No.7904/2000 individual name. Plaintiff had also taken up works independently in his own name and on his own individual account. The plaintiff was in Nugu project doing canal work near Nanjanagud up to 1957.
Defendant No.1 contends that he had purchased site bearing No.1364/2 (ole No.1364/3), 2 sites one in 1952 together with some structures thereon and the adjoining one in 1954 on Guttahalli Main Road for Rs.20,000/- and for Rs.11,000/- respectively. These properties are individual properties of defendant No.1. Khatha stands in the name of defendant No.1 and he had paid taxes towards the said properties and defendant No.1 declared it as a self acquired property and individual property in his income tax and wealth tax returns from 1966-67 itself. Later defendant No.1 has given this property for joint development to M/s. Atria Holdings (later Atria Holdings Pvt. Ltd.) promoted by defendant No.1 in association with others. It is not a joint family property of plaintiff and defendants.
Defendant No.1 along with one A.Chamaraju constituted a partnership firm by name M/s. Chamaraju and Co., in the year 37 O.S.No.7904/2000 1957. Plaintiff and defendant No.2 were working partners of the said firm and it is not a joint family business concern. The said firm had taken up major works like HAL Concreting work, buildings and runway in HAL buildings in MEG Center, defence department, etc. There was continuous work from 1957 to 1969. The said firm was reconstituted with new partners. It is not joint family business concern. There was no joint family business at any point of time either before plaintiff came back to Bengaluru or after that.
Defendant No.1 had denied the allegation made by the plaintiff that when the family business developed by leaps and bounds and when more and more contracts were awarded, the joint family used to lend the names of either of the defendants for convenience, either for the purpose of tax or otherwise. There was no business run by or on behalf of joint family and the question of family used to lend the names of either of the defendants never arose for consideration. Defendant No.1 contended that no truck or lorry was purchased for or on behalf of the family business out of the joint family funds, as there was no so called joint family fund.
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Defendant No.1 contends that each one of the bothers, i.e., plaintiff and defendant Nos.1 and 2 were running their own individual business and their own account and for their own personal benefits and had acquired properties which belong exclusively to them. Defendant submits that each of the companies or firms is a separate and individual unit regulated by the terms of memorandum and articles of association, if it is a company and by the terms of partnership deed between the partners if it is a firm. Each of the companies or firms have been maintaining separate individual accounts which were being duly audited year after year. There is no mixing up of accounts nor the earnings of one company or firm forming for the nucleus or capital of some other company or firm.
Defendant No.1 contends that business of the defendant did not grow from any nucleus of a joint family property or accumulation of so called income of ancestral property or by operation of the doctrine of blending or by joint accretions. There was no accumulation of so called income or ancestral property or had the defendant purchased any property out of the income or with the aid of any ancestral property. There was no 39 O.S.No.7904/2000 nucleus of family of Akkal Raju which yielded any income as his family was placed in such a miserable and impoverished condition. There was no blending or throwing of self acquired properties into common stock. There was no joint family business concern at any point of time run by either late Akkal Raju or his sons as a joint family business, nor any business continued after his death by the plaintiff and defendants as a joint family business.
The defendant No.1 has denied that defendant No.1 was looking after the accounts nor was he entrusted with occasional supervision work of any so called joint family business and plaintiff was looking after overall supervision and was directly in- charge of the execution of the works at the project sites and second defendant assisted him.
Defendants denied that second defendant gained some experience under the plaintiff and defendant No.1 in executing several projects. Just like plaintiff was carrying on his own work, each of the defendants has also his own business either at Bengaluru or outside Bengaluru. Second defendant secured 40 O.S.No.7904/2000 contract work at Hyderabad for himself and it is not a joint family concern. It is denied that after return of defendant No.1 from Hyderabad, the joint family consisting of plaintiff and defendants ventured to create a family trust, which was not created a family trust under the name and style of 'A.S.K. Brothers Family Trust', which was not created out of non-existing joint family funds. It is denied that defendants and plaintiff including male and female members of each branch constituted the trust and hence plaintiff is having 1/3rd share is denied. Defendant No.1 denied that said trust was floated from the joint family nucleus and its resources. The above trust is a private trust declared and executed on 15/07/1974 by an outsider to the plaintiff and defendants family, by name V. Varada Raju, S/o late Venkata Raju, who had constituted trustees namely plaintiff-A.S.Narayana Raju, defendant No.1-A.S.Kuppa Raju and defendant No.2- A.S.Chinnaswamy Raju to manage the affairs of the trust for the benefits of 24 beneficiaries chosen and listed by him in the deed of trust declared by him on 15/07/1974. It is not a joint family concern.
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A.S.Chinnaswamy Raju and Brothers Family Trust was authored by C.Venkara Raju declared from out of his own personal funds as trust property and delivered the same to the members of board of trustees. This constituted the corpus of the trust. No funds from the nucleus of so called late Akkal Raju joint family flowed into the corpus. Plaintiff is not a member of the family. It is not a joint family concern. There was no joint family and no nucleus was provided to create the trust.
Defendant has contended that entrusting of management of lodging and restaurant business by sub-contract in Hotel Chalukya to other trust makes clear that each is a separate and individual venture and that they have nothing to do with any joint family. It is not correct to state that proceeds from trusts and with so called nucleus of joint family were utilized to run Hotel Kanishka, Hotel Atria. Each firm, company and trust is a separate entity constituted and assessed separately under the income tax.
Defendant No.1 has taken contention that plaintiff seeking partition of this concern, ought to have impleaded the 42 O.S.No.7904/2000 beneficiaries of trust and other trustees, K.Gopala Raju as a party to the suit. The trust has been created by an outsider to provide substantial benefits to 21 beneficiaries mentioned in the trust deed. They are necessary parties. Hence the suit is bad for non- joinder of necessary parties and it is not a joint family concern.
Defendant No.1 has denied the allegation made in para 14 of the plaint that the release deed dated 05/01/2000 had been created by the first defendant executed by minor and major children releasing some of their rights in immovable properties in favour of female members. The said property is not a joint family property.
Defendant No.1 contends that it is false to state that after demise of Akkal Raju, plaintiff and defendants succeeded to his estate, joint family ventures as well as businesses and continued the joint family business ventures even after the death of their father Akkal Raju and nucleus remained intact till today. Defendant No.1 has denied that till the date, defendants have been doing business jointly along with plaintiff and that currently constructions are going on for Atria Villa. The said construction is 43 O.S.No.7904/2000 not a joint family property of plaintiff and defendants. Defendant has denied the allegation made by the plaintiff that children of the defendants have been surreptitiously included in various partnerships and companies, that they were only for the purpose of enjoying tax benefits and that they represent only the shares of their respective fathers, that they are only name lenders and that as such inclusion of these names in various concerns will not confer any share or benefit on them, individually as if it is their self acquisition and that the plaintiff has got a definite 1/3rd share in all the business concerns, joint family properties, various amalgamations of business and properties including Atria Holdings, movable and immovable properties of the joint family are baseless and are totally false.
Defendant No.1 denies that there was change in the defendants' attitude with respect to the monthly payments to the plaintiff concerning Hotel Kanishka (M/s. Kayencee Hotels and Engineering Enterprises (P) Ltd) and other concerns and that though he was assured of certain payments for his expenses, he has not been paid the same, is not true and is hereby denied. The defendant No.1 has denied that defendants have shown 44 O.S.No.7904/2000 several joint family properties as collateral securities and offered the said properties as guarantees and used goodwill of the joint family to borrow huge sums of money from several organizations and financial institutions for the purpose of execution of the said hotel and power projects. There are no joint family properties as contended by the plaintiff.
Defendant No.1 has denied the allegation that defendant Nos.1 and 2 committed breach of trust, cheating and misappropriation by playing fraud on the plaintiff in offering several joint family properties as collateral and as guarantees to borrow huge sums, without including the name of the plaintiff or members of his branch in the said hotel and other projects.
The allegation that a trust was created from out of the proceeds accrued by the joint family business is totally false. Defendant No.1 contends that plaintiff is making false allegations against the defendants without any basis.
Defendant No.1 has denied the allegation made in para 21 of the plaint that the total assets of the joint family properties and joint family business concerns are approximately worth about 45 O.S.No.7904/2000 Rs.200 Crores excluding the goodwill and that the alleged joint family has filed income tax returns as HUF.
The defendant No.1 submits that business concerns mentioned in schedule 'A', when and by whom each partnership firm or company was promoted, its present composition and how it has been shown before the taxation and company law authorities. Similarly defendant furnished the particulars as to when, how and by whom each of the immovable properties mentioned in schedule 'B' had been acquired and how each property has been shown in the income tax and wealth tax returns and respective assessment orders passed therein. Plaintiff acquired properties included by him in schedule 'B' on his own account and independently owned by him, his wife or his son.
Defendant No.1 submits that MANI AND CO., is a partnership firm constituted under the partnership deed dated 02/03/1970 with 13 partners which included late A.Chamaraju and several others who are outsiders to the families of the plaintiff and defendant. The firm was reconstituted on various occasions on 19/12/1974, 21/12/1982, 20/01/1983, 20/12/1988, 46 O.S.No.7904/2000 10/11/1992, 01/04/1993 and 01/04/1995, on each time of reconstitution of the firm with some partners retiring and new partners were being taken. The plaintiff retired from the firm and ceased to have any interest in it. After having accepted a definite share ratio at the time of constitution of the firm and after having accepted the same at the time of reconstitution of the firm five times. It is not a joint family concern and plaintiff has no 1/3rd share in it.
Defendant No.1 contends that M/S. BANGALORE CONSTRUCTION COMPANY is a partnership firm, constituted under partnership deed dated 15/09/1975 with 11 partners. There are partners who are outsiders to the families of plaintiff and defendants. The firm was reconstituted on 20/11/1988 and on 15/03/1991. Again reconstituted on 01/04/1995 with 9 partners.
Plaintiff invested an amount of Rs.5,000/- at the time firm was constituted and retired from the firm along with several others in 1998. So the plaintiff is estopped from claiming 1/3rd 47 O.S.No.7904/2000 share in the firm after 26 years and he has no locus standi to dispute firm's existence, constitution, management or control.
Defendant No.1 contends that JYOTHI TILES is a partnership firm constituted under the partnership deed dated 01/09/1975 having 6 partners. Plaintiff has not become a partner of this firm and he has no locus standi to dispute firm's existence.
Defendant No.1 contends that M/S. SREENIVASA ENTERPRISES is a partnership firm constituted under the partnership deed dated 07/06/1973 with 2 partners, i.e., late Y.Subbaraju who is having 50% interest in the firm. It was reconstituted on 15/04/1978 admitting new partners into the firm, but maintaining interest of the partner deceased Y.Subbaraju at 50% and it was dissolved with effect from 30/03/1987. The partners have become co-owners of the property owned by the firm. Plaintiff being partner after being admitted into the partnership on 15/04/1973 with a defined interest of 9% and after dissolution having only same share ratio as one of the 15 co-owners from 30/03/1987. Plaintiff is 48 O.S.No.7904/2000 estopped from claiming it as a joint family concern and that he is having 1/3rd share in the estates of the firm.
Defendant No.1 contends that GAYATHRI ENTERPRISES was a partnership firm constituted under the partnership deed dated 22/05/1980 with 7 partners, among whom two partners late Basavaraje and Late R.M.B. Aradhya were outsiders to the families of plaintiff and defendants. Plaintiff joined the firm as a partner on 19/05/1980. Plaintiff had agreed to contribute Rs.1,00,000/- towards capital of the firm and later on he had agreed to contribute Rs.5,00,000/-. The firm was reconstituted admitting outsiders, minors Ms.Tripurasundari Devi, Ms.Deepamalini Devi, Ms.Keertimalini Devi and Master Chaduranga Kantharaj to the benefits of the partnership. On 25/03/1987 the firm was dissolved and the property of the firm was allotted to M/s. A.S.K. Brothers Pvt. Ltd. There were no transactions in the name of the plaintiff in the books of accounts of the said firm up to 30/06/1986. The first transaction recorded was on 01/11/1986, wherein his current account was debited with Rs.5,00,000/- and his capital account was credited with Rs.5,00,000/-, a book entry. He had promised to bring in 49 O.S.No.7904/2000 Rs.5,00,000/- as his capital contribution, which did not materialized. As desired by him, an amount of Rs.56,140/- was debited in his current account on 01/11/1986. No money was actually brought in or invested by the plaintiff towards his capital in the said firm. As desired by the plaintiff his accounts are transferred to ASK Brothers Pvt. Ltd., which took over the assets of the firm. After being a partner from its inception and continuing whenever the firm was reconstituted and having accepted a defined share ratio in the firm's capital and after accepting the accounts at the time of dissolution of the firm on 25/3/1987, the plaintiff is estopped from claiming it as joint family property and he is having 1/3rd share.
Defendant No.1 contends that M/S. JYOTHI CONSTRUCTIONS is a partnership firm constituted under the partnership deed dated 25/06/1980 and it was reconstituted on 24/03/1982 admitting new partners and again it was reconstituted under the partnership deed dated 05/06/1985 by admitting second defendant, Sri Kodandaraju, Sri Nagaraju and Sri Jagannatha Raju as partners and wherein 9 partners retired from the firm. The firm was reconstituted with effect from 50 O.S.No.7904/2000 01/04/1993 whereby 3 partners had retired from the firm and two partners S.G.Ramesh and M.Anandaraju had been admitted as partners. Plaintiff has not become a partner in the firm. So he has no locus standi to claim 1/3rd share in the firm.
Defendant No.1 contends that M/S. A. CHAMARAJU AND CO., is a partnership firm constituted under the partnership deed dated 05/12/1957 with the partners 1st defendant, A.Chamaraju, plaintiff-A.S.Narayana Raju and second defendant. It was reconstituted on 01/07/1964 and on 08/04/1965 by admitting two partners by name P.A.Chuthananda Raju and K.Nagaraju into the partnership. It was reconstituted on 19/04/1982 after demise of A.Chamaraju. On 16/09/1985 and again at the time of reconstitution of the firm, plaintiff, Nagaraju and second defendant expressed their desire to retire from the firm. The firm was dissolved as per the deed of dissolution dated 09/02/1987. After having retired from the firm constituted in 1985, the plaintiff is falsely claiming it as a joint family concern and he is having 1/3rd share after lapse of 16 years the firm was constituted and after 7 years after he retired from the firm.
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Other concerns mentioned in the suit 'A' schedule are ASK Brothers-item No.2, ASK Builders- item No.4, Bharath Builders- item No.5, Raju and Co., - item No.13 are firms promoted by the plaintiff. Knowing fully well that they are his firms and the defendants are not concerned with them, with the oblique motive of showing that his firms are also joint family concerns, plaintiff has included them in the suit 'A' schedule property.
Defendant No.1 contends that M/s. MYSORE SPUN CONCRETE PIPE COMPANY (P) LTD., the Company was incorporated on 19/12/1963 as a Pvt. Ltd. Company. The promoters of the company were one C.N.Krishna and S. Anantha Murthy. The company was taken over by the present management. The share capital of the company is Rs.5,00,000/- divided into 500 equity shares of Rs.1000/- each. The Plaintiff is not a shareholder. The plaintiff's son is holding 10 shares of Rs.1,000/- each in the share capital of the company. Hence plaintiff has no locus standi to dispute company's existence, its constitution, management or control and it is not a joint family concern.
52 O.S.No.7904/2000
Defendant No.1 contends that M/S. KAYNCEE HOTELS AND ENGINEERING ENTERPRISES (P) LTD., was incorporated on 12/05/1977 as a Pvt. Ltd. Company. The subscribers to the Memorandum, and Articles of Association were the plaintiff and defendants each subscribing to 1,000 'A' Class equity shares of Rs.10/- each. The authorised share capital is Rs.50 Lakhs comprised of 5,00,000/- shares of Rs.10/- each. Present share holding is the capital of the company. There are many outsides to the family of the plaintiff and defendants holding substantial shares. Plaintiff is director of the said Company, accepted composition, management and control of the company, which is running hotel Kanishka from 17/06/1983. The plaintiff is estopped from questioning the constitution, control and management after so many years and after the company commences its business. If he is aggrieved, he can seek his remedies under the Companies Act.
Defendant No.1 contends that M/S. RAMALEELA DEVELOPERS is a Company incorporated on 24/03/1984 as a Private Limited Company, originally under the name and style of M/s. Ceeyeyes Engineers (P) Ltd. The authorised share capital of 53 O.S.No.7904/2000 the company at the time of incorporation was Rs.3,00,000/- divided into 30,000 equity shares of Rs.10/- each. The promoters and subscribers to the memorandum at the time of incorporation were (1) Smt. C.Lalitha, (2) C.Visweswara. On 25/05/1986 200 shares of the company were transferred to outsiders, i.e., Sri K.B Ramachandra Raje Urs 100 equity shares and 100 equity shares to K. Gopala Raju, son of the first defendant. The company name was changed on 21/07/1988 as Sree Ramaleela Developers (P) Ltd. and a fresh certificate of incorporation was granted on 21/07/1988. An extraordinary general meeting was held on 23/01/1989, the authorised share capital was increased from Rs.3,00,000/- to Rs.25,00,000/- by creation of further 2,20,000 equity shares of Rs.10/- each. The present directors of the company are plaintiff, defendant No.2, Gopalaraju, Ramachandra Raju and Chaduranga Kanthe Raje Urs. Plaintiff's interest in the company was defined when shares were allotted to him in the share capital of the company. Plaintiff has definite share or interest in the company. Hence plaintiff is estopped from making false and avaricious claim claiming that he is having 1/3rd share in the business concern and he has no locus standi to file the suit. 54 O.S.No.7904/2000
Defendant No.1 contends that A.S.K. BROTHERS LIMITED is a company incorporated on 10/12/1984 initially as a Private Limited Company under the name and style of A.S.K. Brothers (P) Ltd. The authorised share capital of the company at the time of incorporation was Rs.25,00,000/- divided into 10,000 'A' class shares of Rs.10/- each and 2,400 'B' class equity shares of Rs.1000/- each. The subscribers to the memorandum were defendant No.1, plaintiff and defendant No.2 each holding 100 'A' class shares of Rs.10/- each and authorised share capital of the company was increased from Rs.25 lakhs to Rs.300 lakhs vide special resolution passed at the EGM of the members held on 20/03/1989 by creating fresh 27,500 'B' class equity shares.
The company was converted into Public Ltd. Company and its name was changed to 'M/s. A.S.K. Brothers Ltd.' in the 5th AGM of the members held on 10/05/1990. The issued, subscribed, called up and paid equity share capital of the company as on 31/03/2000 was Rs.2 Crores 23 Lakhs comprised of 2,23,000 equity shares of Rs.10/- each. Many persons not related in any manner to the family of the plaintiff and defendants are shareholders of M/s. A.S.K. Brothers Ltd., having 55 O.S.No.7904/2000 applied for allotment of shares and having also paid share application money in respect of such allotments. Plaintiff has transferred his shares in favour of his son on 20/03/1992 and plaintiff has ceased to be a member and shareholder of the said company. Hence he has no locus standi to raise any objection as to its constitution or control. Plaintiff's interest in the company was defined when he subscribed to the share capital of the company at the time of its incorporation on 10/12/1984 and his interest was limited to the extent of 100 'A' class equity shares of Rs.10/- each subscribed by him. Hence he has no locus standi to file the suit.
Defendant No.1 contends that M/S. AKKALA RAJU FINANCE AND INVESTMENT (P) LTD., is a company incorporated on 09/12/1991 in commemoration of late Akkala Raju who expired in 1981. The authorised share capital of the company is Rs.25,00,000/- consisting of 2,50,000 shares of Rs.10/- each. The subscribers to the memorandum and articles of association of the company are defendant No.1, defendant No.2 and C.S.Sunder Raju. The plaintiff is not shareholder of the company, but his son acquired 1000 shares of Rs.10/- each in the company. There are 56 O.S.No.7904/2000 several outsiders who have acquired shares in the company by allotment. The outsiders to the family of plaintiff and defendants are holding 2,50,000 shares of Rs.10/- each and plaintiff or his son did not raise any objection to the composition, control and management of the company or claimed any higher interest in it during past 10 years. Hence it is not a joint family property of the plaintiff and defendants.
Defendant No.1 contends that M/S SUNRAY COMPUTERS is a company incorporated on 24/06/1982. The subscribers to the memorandum or articles of association of the company were defendant No.1 and defendant No.2. The authorised share capital of the company is Rs.50 lakhs divided into 50,000 shares of Rs.100/- each. The paid up share capital of the company presently stands at Rs.32,99,000/- consisting of 32,995 shares of Rs.100/- each. There are 48 shareholders at present including the plaintiff and his 3 sons. Plaintiff is holding 245 shares of the value of Rs.24,500/- and his three sons are holding 500 shares each of Rs.50,000/- each. There are several outsiders and associations of persons who have acquired shares in the company apart from the subscribers to the memorandum. The plaintiff and 57 O.S.No.7904/2000 his sons and others are holding shares to the extent of their respective investments. Hence it is not a joint family property and plaintiff is not entitled to 1/3rd share as claimed by him.
Defendant No.1 contends that M/S. ATRIA HOLDINGS (P) LTD. COMPANY is a Private Limited Company incorporated on 18/03/1997 under the Companies Act, 1956. The authorised share capital of the company at the time of its incorporation was Rs.25 lakhs divided into 2,50,000 equity shares of Rs.10/- each. The promoters and subscribers to the memorandum were defendant No.1, defendant No.2, K.Gopala Raju, Smt. Savithramma, Smt. Indiramma, C.S.Sunder Raju, K. Nagaraju, K.Kodanda Raju, Pradeep Raju and C.S.Sunder Raju Family Trust and first defendant. Plaintiff is neither a subscriber to the memorandum nor he has acquired shares in the said company. Hence he has no locus standi to dispute the company's existence, its constitution, management or control and it is not a joint family property.
Defendant No.1 contends that M/S. ATRIA POWER CORPORATION LTD., is a Company incorporated on 24/06/1996 58 O.S.No.7904/2000 as a public limited company. The plaintiff is not a shareholder of the company. Hence he has no locus standi to dispute the company's existence, its constitution, management or control and it is not a joint family property.
Defendant No.1 contends that M/S. ATRIA HYDEL POWER LTD., is a company incorporated on 25/01/1999 as public limited company. The plaintiff who has not invested a single rupee in his name and he is not shareholder of the company, hence he has no locus standi to dispute the company's existence, its constitution, management or control and it is not a joint family property.
Defendant No.1 contends that M/S. ATRIA CONVERGENCE TECHNOLOGIES (P) Ltd., is a company incorporated on 16/06/2000, The plaintiff or any of his family members have not acquired any interest in the company. Hence he has no locus standi to dispute the company's existence, its constitution, management or control and it is not a joint family property and plaintiff is not entitled to any share.
Defendant No.1 contends that M/S. ATRIA HOTEL is a trade name of the hotel run by the company M/s. ASK Brothers 59 O.S.No.7904/2000 (P) Ltd., subsequently changed as ASK Brothers Ltd. 'Atria Hotel' is the trade name of the hotel and it is the business concern owned by the said company.
Defendant No.1 contends that M/S. ATRIA INSTITUTE OF TECHNOLOGY is the name of the educational institution run by A.S.Kuppa Raju and Brothers Charitable Foundation Trust, a public charitable trust and it is not a joint family concern and plaintiff is not entitled to any share.
The plaintiff is neither a subscriber to the memorandum or he has acquired share in the company. Plaintiff has no right, title or interest of any type known to law in the above said companies or its business. The plaintiff who is not a shareholder or acquired any interest in the above said companies, hotels, has no locus standi to dispute the companies' existence, its constitution, management or control. The affairs of the company are conducted by the companies within the framework. Hence the above said companies, hotels and institutions are not joint family properties and plaintiff is not entitled to share. 60 O.S.No.7904/2000
Defendant No.1 contends that M/S. RAJU FAMILY FOUNDATION TRUST is a trust declared under the trust deed dated 14/04/1981. The author of the trust was late C.Venkata Raju, S/o late Chengama Raju. He is outsider to the family of Akkala Raju. The trustees are defendant No.1 and defendant No.2. Plaintiff is not a trustee. There are 24 beneficiaries named by the author under the trust deed. The plaintiff's beneficial interest has been defined as 30/810. So also his wife and 8 children, i.e., 3 sons and 4 daughters each entitled to 30/810 interest in the benefits accrued to the trust. The said trust is not a joint family trust and plaintiff is not entitled to 1/3rd share.
Defendant No.1 contends that M/S. CHENGAMMA FAMILY FOUNDATION is a trust declared under the trust deed dated 14/04/1981. The author of the trust was late C.Venkata Raju. He is outsider to the family of Akkala Raju, plaintiff and defendants. The trustees are defendant No.1 and defendant No.2. Plaintiff is not a trustee. There are 20 beneficiaries named by the author under the trust deed. The plaintiff is not a beneficiary. His wife and children along with 12 others have been named as beneficiaries under the trust. The plaintiff has 61 O.S.No.7904/2000 accepted the position. Hence plaintiff is not entitled to 1/3rd share as prayed for and plaintiff has no locus standi to seek partition.
Defendant No.1 contends that M/S. A.S. KUPPA RAJU FAMILY TRUST is a trust declared under the trust deed dated 30/01/1978. The author of the trust was late A.Chama Raju. Though he is related to the plaintiff and defendants, being brother-in-law of defendant No.1, he is an outsider to the family of plaintiff and defendants. The trustees are defendant No.1, defendant No.2 and Gopala Raju. The plaintiff is not a trustee. But the plaintiff and his son Krishna Raju were having 5% each as their beneficial interest and his another son N.Ravi Kumar is having 6% beneficial interest. It is not a joint family concern and plaintiff has no 1/3rd share in it.
Defendant No.1 contends that M/S. A.S.K. AND BROTHERS CHARITABLE AND EDUCATION TRUST is a public charitable trust originally declared under the trust deed dated 21/12/1984. The authors of the trust are Smt.K.Savithramma, W/o. defendant No.1 and defendant No.2. The trustees are first defendant, Smt. K.Savithramma, Smt.Indiramma and second defendant. The 62 O.S.No.7904/2000 objects of the trust are to open, run and maintain schools and colleges for imparting education for general public. The plaintiff cannot ask for partition of the trust property, which forms corpus of a public charitable trust and it is not a joint family property.
The said trust modified by the deed of rectification dated 05/05/2001 and they have declared a substantial extent of the land measuring 5 acres 37 guntas as trust property and trust has constructed buildings. These facts reflected in its books of account up to 31/03/2000 and plaintiff has accepted the above said position all these years. It is not joint family property and plaintiff is not entitled to 1/3rd share.
Defendant No.1 contends that M/s. ASK Brothers Family Trust and M/s. A.S. Chinnaswamy Raju & Brothers Family Trust mentioned as item No.26 and 29 in the suit schedule 'A' are not joint family concerns and plaintiff is not entitled to 1/3rd share.
Item No.1 and 2 of the schedule 'B' were jointly purchased by defendant No.1, defendant No.2 and wife of defendant No.1 Smt.Savitramma under registered sale deed dated 27/04/1961. Defendant No.1 settled his 1/3rd share in favour of his sons. Smt. 63 O.S.No.7904/2000 Savithramma and defendant No.2 are legal owners of the land of about 17 acres in Sy.No.99 and Sy.No.100 of Cholanayakanahalli having purchased the same from their own funds and said item No.1 and 2 properties are self acquired property of defendant No.1, defendant No.2 and Savithramma and they had declared this land in the status of individual in their wealth tax returns from the beginning up to the year 1983-84. It is not a joint family property of the plaintiff and defendants.
Item No.3 and 4 of the suit schedule 'B' property are sites purchased by the first defendant and these are not the joint family properties of the plaintiff and defendants. These sites are shown as individual and separate properties in the wealth tax and income tax returns.
Item No.5 and 6 of the suit schedule 'B' property were purchased from the funds contributed by late Ramakka, who is sister of father of plaintiff and defendant Nos.1 and 2. As per the desire of the said Ramakka, defendant No.2 constructed a house about 40 years back in the said site out of his own funds and is residing there. Plaintiff had constructed house on site No.294 64 O.S.No.7904/2000 about 40 years back and he is residing there. They are not joint family properties of plaintiff and defendants. Plaintiff has shown as his individual property in wealth tax and income tax returns and not as a HUF. Hence these are not the joint family properties.
Item No.8 of the suit schedule 'B' property belonged to Basavaraju Urs. He is not a family member of plaintiff and defendants. He was one of the partner of the firm by name M/s. Gayathri Enterprises. This property originally brought into common stock of the firm by Sri Basavaraju Urs in the course of the business of the firm. After the demise of Basavaraj Urs, the firm was reconstituted on 08/08/1985 admitting his son and others as partners and again on 01/03/1986 admitting M/s. A.S.K. Brothers (P) Ltd., into the partnership. The firm was dissolved with effect from 25/03/1987 and the property of the firm was allotted to A.S.K Brothers (P) Ltd. The plaintiff had promised to bring Rs.5,00,000/- as his capital contribution and an amount of Rs.56,140/- was debited to his current account on 01/11/1986. But the plaintiff has not brought the above said amount of 65 O.S.No.7904/2000 Rs.5,00,000/- as promised. Hence plaintiff is estopped from claiming said property as joint family property.
Item No.9 of the 'B' schedule was the one acquired by M/s.A.Chamaraju & Co., partnership firm from its own funds. The above asset is recorded in the books of account of the firm. The plaintiff retired from the firm on 20/04/1986 and firm was dissolved on 09/02/1987. The above property was allocated in equal shares to Kuppa Raju-defendant No.1, Savithramma, Gopala Raju, Kodanda Raju and Nagaraju. The said property is owned by these 5 persons. Defendant No.1 has constructed residential building and one office building out of his own funds and declared as his individual property in wealth tax and income tax returns. Hence it is not a joint family property.
Item No.10 of suit schedule 'B' property was purchased by defendant No.1 under registered sale deed dated 02/09/1944. It is an individual property of defendant No.1, as he shown it in wealth tax and income tax returns.
Item No.11 of the 'B' schedule property was allotted to Ramakka from a Co-operative Society and constructed a small 66 O.S.No.7904/2000 house in the said site out of her own funds. It is not a joint family property.
Item No.12 of 'B' schedule property is a site purchased by Akkal Raju from his own personal funds. Said Akkal Raju and Ramakka are residing in the house, whereas defendant No.1 had shifted to his own house in the year 1952-53. Defendant No.1 is looking after his father and he was paying some amount towards his maintenance. Said Akkal Raju has purchased site out of the savings of the said amount. It is individual property of late Akkal Raju and filed income tax returns from the year 1965-66. Father of plaintiff and defendant Nos.1 and 2 Akkal Raju died on 25/07/1981. The said property is self acquired property of late Akkal Raju and not a joint family property.
Item Nos.13 to 26 of 'B' schedule properties are owned by the plaintiff. Defendants do not have any claim over the said properties. Plaintiff has also acquired several other properties from his own funds. Hence it is crystal clear that there was no joint family of plaintiff and defendants.
67 O.S.No.7904/2000
Item Nos.27 to 30 of 'B' schedule property are self acquired properties of defendant No.1 acquired under registered sale deeds dated 14/04/1967, 05/06/1967, 07/04/1969 and 15/03/1978 respectively from out of his own funds and had shown as individual properties in wealth tax and income tax returns. They are not joint family properties.
Item No.27, 28, 31 and 37 are one and the same as item No.32, 34, 35 and 74.
Item No.31, 33 and 36 of 'B' schedule properties were acquired by Kodanda Raju, son of defendant No.1 under registered sale deed dated 03/02/1972 out of his own funds. Hence it is self acquired property of said Kodanda Raju and it is shown in wealth tax and income tax returns.
Item No.53 was purchased by K.Gopala Raju under registered sale deed dated 08/04/1965 out of his own funds. Hence it is self acquired property of Gopala Raju and same is shown in income tax and wealth tax returns as individual property.
68 O.S.No.7904/2000
The above properties are not joint family properties of plaintiff and defendants. Hence plaintiff is not entitled to 1/3rd share in the suit schedule properties and suit of the plaintiff may be dismissed with costs.
4. Defendant No.2 has filed written statement contending the same contentions as contended by defendant No.1 in his written statement. Defendant No.2 further contends that item No.37 of 'B' schedule property is self acquired property of his son C.S. Sunder Raju purchased on 08/01/1982 from his individual income and he had constructed a factory shed in the said property out of his own funds and let it out to Sunray Computers Pvt. Ltd. In the income tax and wealth tax returns the said property is shown as individual property of Sunder Raju.
Item No.38 of 'B' schedule property is a property in possession of Mysore Spun Concrete Pipe (P) Ltd. It is not a joint family property.
Item No.39 of 'B' schedule property is a property which was acquired by HUF of defendant No.2 under sale deed dated 30/08/2007 out of funds of his family and same is shown in 69 O.S.No.7904/2000 income tax and wealth tax returns as HUF of defendant No.2 and his family.
Item No.40, 41 and 49 are self acquired properties of wife of defendant No.2 Indiramma purchased under registered sale deed dated 29/04/2004, 04/03/2004 and 15/06/1996 respectively out of her self acquired funds and same is shown in her income tax and wealth tax returns.
Item No.42 and 43 of 'B' schedule property are purchased by Kaushik S.Raju, S/o Sunder Raju under registered sale deed dated 07/10/2006 and 06/11/2006 respectively out of the funds accumulated with various partnership firms. This property is self acquired property of said Kaushik.
Item Nos.44, 45, were sites allotted to defendant No.2 by Bangalore Development Authority on 22/03/1963 and sale deed was executed on 02/05/1997 and item No.46 was allotted to defendant No.2 on 12/04/1972 and sale deed was executed on 12/05/1979 and item No.47 is acquired by defendant No.2 out of his own funds. These properties are shown in income tax and wealth tax returns as individual properties of defendant No.2. 70 O.S.No.7904/2000
Item No.54 of 'B' schedule property is property owned by Chalukya Holiday Resorts Pvt. Ltd., Whitefield, Bengaluru. The said property has been allotted by KIADB to that company. The property belongs to the said company. This property was purchased out of the personal funds.
Item No.59 of 'B' schedule property was acquired jointly by wife of defendant No.2 Indiramma and second defendant under registered sale deed dated 10/03/2008 out of their funds.
Item Nos.63, 64, 65 and 73 of schedule 'B' are acquired by defendant No.2 under registered sale deed dated 07/07/1994, 06/07/1994 and 13/08/1993 out of his own funds. Same are shown in income tax and wealth tax returns.
Item Nos.61, 62, 66, 67 and 68 of 'B' schedule property were acquired by son of defendant No.2 C.S. Sunder Raju. They are shown in income tax and wealth tax returns as his individual properties. The above said properties are not joint family properties of the plaintiff and defendants. Hence the suit of the plaintiff may be dismissed with costs.
71 O.S.No.7904/2000
5. Defendant No.13 has filed written statement contending that the suit of the plaintiff is not maintainable either in law or on facts and the same may be dismissed. Defendant No.13 contends that she had filed application on 09/11/1966 to City Improvement Trust Board to allot suit item No.75, site No.10 (old No.135) situated at 3rd Main Road, G.D. Park Extension, Bengaluru. The said site was allotted to the defendant No.13 and said Board has executed the sale deed in favour of defendant No.13 and possession was delivered on 25/08/1967. BDA has conveyed site under registered sale deed dated 20/04/1983. The consideration for purchasing the sites was paid by defendant No.13 out of her own savings. Apart from paying her own money for the two sites, defendant No.13 had with her many times more money at that time and she has declared this property as her individual property in the income tax returns. It is a stridhana property of defendant No.13. It is not joint family property of the plaintiff and defendants. Hence plaintiff is not entitled to any right or interest in those properties. Defendant No.13 is not proper and necessary party. The present property and defendant is included in this case as defendant No.13 by adding the suit 72 O.S.No.7904/2000 property item No.75 and 76 after lapse of 12 years. There is no cause of action to file the present suit against defendant No.13. Hence suit of the plaintiff may be dismissed with exemplary costs.
6. Though the additional written statement filed by the defendants, defendant No.2 alone has put his signature on the additional written statement. The additional written statement reveals that suit of the plaintiff is bad for non-joinder of all the persons, women and children who are owners and in actual possession and enjoyment of the suit schedule properties, i.e., wives and children are also proper and necessary parties. Without adding them as parties, the suit is not maintainable.
Further defendants contend that there are woman's separate properties which a woman gets by way of gift from her parents, from her husband and their family, all savings made by a woman with her stridhana and all purchases made with it, money or property given to a woman in lieu of maintenance and purchases made with such money for her own benefit, her earnings and property acquired by her own exertion or with the profits of a trade. For deciding these issues all such persons are 73 O.S.No.7904/2000 necessary parties. Without impleading them as a party, the suit is not maintainable.
The plaintiff has not properly valued the subject matter of the suit on its market value in respect of the properties which are owned and in exclusive possession of the defendants and other individual owners in their own right for decades. Hence plaintiff has not paid proper and correct court fee.
In respect of the prayer No.2 of amended plaint, the defendants submit that suit of the plaintiff is barred by limitation, as the defendants are enjoying the properties individually for decades and this fact is known to the plaintiff. Hence the suit of the plaintiff is barred by limitation and plaintiff has not paid court fee on the market value of the property, which is owned by the defendants.
Plaintiff had added in all 48 immovable properties to schedule 'B' properties. These properties are not joint family properties of the plaintiff and defendants. Father of the plaintiff and defendants Akkal Raju did not have means to acquire any property nor owned or left any property. Except a bare 74 O.S.No.7904/2000 relationship by blood, there was no any joint family property at any time.
Serial Nos.27 to 30 in 'B' schedule property:
These are lands bearing Sy.Nos.26, 24, 66, 86, 87 and 88 situated at Byrathi Village, Bidarahalli Hobli, Hoskote Taluk.
These properties are self acquired properties of defendant No.1 deceased Kuppa Raju and defendant No.1 had purchased land Sy.No.26 under registered sale deed dated 14/04/1967, the land bearing Sy.No.24 under registered sale deed dated 05/06/1967, the land bearing Sy.No.66 under registered sale deed dated 07/04/1969, the land bearing Sy.No.86, 87, 88 purchased under registered sale deed dated 15/03/1978 from out of his own funds. These properties are declared by defendant No.1 as his individual properties in his wealth tax and income tax returns.
Properties shown in serial Nos.44 to 47, 63 to 65, 70 and 73 in 'B' schedule property:
(a) The properties in serial No.44 and 45 are purchased by defendant No.2, they were allotted by BDA on 22/03/1963 and 75 O.S.No.7904/2000 02/05/1997 respectively. The site in Sl.No.46 was purchased on 12/04/1972 from BDA. Defendant No.2 had shown these properties as his self acquired properties in income tax and wealth tax returns as early as in 1966-67.
(b) Sl.No.47 is site No.2, Thayappanahalli, Jayanagar. This is self acquired property of defendant No.2 acquired out of his own funds and the same is declared as his individual property in his wealth tax returns as early as in 1966-67.
(c) Sl.No.48 is site No.61 and 61A situated in Subramanya Layout, Dena Bank Colony, R.T. Nagar, Bengaluru. The details of the property is not furnished by the plaintiff.
(d) Sl.No.63, 64, 65, and 70 of schedule 'B' are lands bearing portions of Sy.No.67 of Sathanur Village in Jala Hobli, Bangalore North Taluk. Defendant No.2-Chinnaswamy Raju acquired the land in Sl.No.63 under the registered sale deed dated 07/07/1994, the land in Sl.No.64 acquired on 06/07/1994, land in Sl.No.65 acquired on 13/08/1993 for and on behalf of his individual Hindu Undivided Family of defendant No.2 from out of 76 O.S.No.7904/2000 funds belonging to his HUF. The same was shown in income tax returns.
(e) Sl.No.73 is the land bearing Sy.No.138/3C of B.M. Kaval Village, Kengeri Hobli, Bangalore South Taluk and it is self acquired property of defendant No.2 under registered sale deed dated 03/06/1970 from out of his individual funds. This property is shown in his income tax and wealth tax returns.
Properties in Sl.Nos.37, 61, 62, 66, 67 and 68 of 'B' schedule:
(a) Sl.No.37 is property bearing No.21, 1st Main Road, Manorayana Palya, Bengaluru. This is self acquired property of Sri C.S.Sunder Raju, son of defendant No.2, acquired under registered sale deed dated 08/12/1982 from out of his own individual income and he constructed a factory shed out of his own funds and let it out to Sunray Computers (P) Ltd. The rental income has been declared in his income tax returns under the status 'Individual' every year. Hence it is self acquired property of Sunder Raju.77 O.S.No.7904/2000
(b) Sl.Nos.61, 62, 66, 67 and 68 of schedule 'B' are lands forming portions of Sy.No.67 of Sathanur Village, Jala Hobli, Bangalore North Taluk acquired under registered sale deeds dated 16/03/1998, 08/05/1991, 22/01/1990, 06/07/1992, 04/12/1992 by C.S.Sunder Raju, son of defendant No.2 for and on behalf of his joint family consisting of defendant No.2 and his family members and the same is shown in income tax returns.
Hence it is not a joint family property of plaintiff and defendants.
Sl.Nos.31, 33, 36, 71 and 72 of 'B' schedule property:
(a) Sl.Nos.31, 33 and 36 are lands bearing Sy.No.65/2, 64 and 26 of Byrathi Village in Hoskote Taluk. These properties are acquired by K.Kodanda Raju, son of defendant No.1 under registered sale deed dated 03/02/1972 out of his own self acquired funds. The same is shown in wealth tax and income tax returns. Hence it is self acquired property of said Kodanda Raju.
(b) Sl.Nos.71 and 72 are lands bearing Sy.No.161/4 and Sy.No.138/2B of B.M.Kaval Village, Kengeri Hobli, Bangalore South Taluk purchased by the said Kodanda Raju under 78 O.S.No.7904/2000 registered sale deed dated 31/08/1972 out of his self acquired funds.
Sl.Nos.38 and 53 of 'B' schedule property:
(a) Sl.No.38 is the land bearing Sy.Nos.101, 402, 403 and 428 of Madanayakanahalli Village, Dasarahalli Hobli, Bangalore North Taluk. This property is in possession of Mysore Spun Concrete Pipes (P) Ltd. The plaintiff has not furnished documents in respect of this property.
(b) Sl.No.53 is the land bearing No.56/3 of Geddalahalli Village, Kasaba Hobli, Bangalore North Taluk. This property was acquired by K.Gopala Raju, son of defendant No.1 under registered sale deed dated 08/04/1965 from out of his self acquired funds and this is self acquired property of said Gopala Raju.
Sl.Nos.40, 41 and 49 of schedule 'B':
(a) Sl.No.40 is land bearing Sy.No.66/2 of Sathanur Village, Jala Hobli, Bangalore North Taluk and this property was purchased by defendant No.13 Indiramma under registered sale 79 O.S.No.7904/2000 deed dated 29/04/2004 out of her self acquired funds. Hence it is self acquired property of defendant No.13.
(b) Sl.No.41 is land bearing Sy.No.2/2 of Venkatala Village, Yelahanka Hobli, Bangalore North Taluk and it is self acquired property of defendant No.13 Indiramma purchased under registered sale deed dated 04/03/2004 out of her own funds. The same is shown in income tax assessment. This property has been reflected in her books of account.
(c) Sl.No.49 is site bearing No.136 new No.10, situated a 3rd Main, Gayathri Devi Park Extension, Bengaluru. This is self acquired property of defendant No.13 Indiramma purchased on 15/06/1996 from out of her own acquired funds. The same is her individual property shown in income tax and wealth tax returns.
Sl.No.42 and 43 of schedule 'B':
(a) Sl.No.42 is land bearing Sy.No.73 and 75/1 of Bypanahalli, Jala Hobli, Bangalore North Taluk. This is property purchased by Kaushik S.Raju, son of C.S.Sunder Raju under registered sale deed dated 07/10/2006 out of the accumulated 80 O.S.No.7904/2000 funds with various partnership firms. This property is self acquired property of Kaushik.
(b) Sl.No.43 is land bearing Sy.No.67/P-7 of Sathanur Village, Jala Hobli, Bangalore North Taluk. This property was purchased by the said Kaushik under registered sale deed dated 16/11/2006 and it is also self acquired property of said Kaushik.
Sl.No.39 is the land bearing Sy.No.1/1, of Kattigenahalli, Jala Hobli, Bangalore North Taluk, acquired by defendant No.2 under registered sale deed dated 30/08/2007 out of the funds of his family.
Sl.No.54 is the land bearing Sy.No.143, 212, 213 and 214 of EPIP Industrial Area, owned by Chalukya Holiday Resorts Pvt. Ltd., Whitefield, Bengaluru. The said property was allotted by KIADB to this company. The said company was promoted by defendant No.2 and others. The said property belongs only to the said company. The company is not a party to the suit.
Sl.No.59 is site No.11, 1st Cross, RMV Extension, Sadashivanagar. This property was acquired jointly by defendant 81 O.S.No.7904/2000 No.2 and his wife Indiramma-defendant No.13 under registered sale deed dated 10/03/2008. It is self acquired property of defendant No.2 and his family.
Plaintiff has not produced documents in respect of the properties shown in Sl.Nos.48, 50, 51 and 52 in spite of the order passed by this Court.
The properties in Sl.No.27, 28, 31 and 37 of schedule 'B' have been repeated in Sl.No.32, 34, 35 and 74. They are one and the same.
There is no cause of action for the suit. The suit is barred by limitation. Defendants have traversed in detail all the claims made and contentions taken by the plaintiff, in the written statement already filed by them. In order to avoid repetition of what all has been stated there, the same may be read along with this statement as forming part and parcel of the same. Therefore the suit of the plaintiff may be dismissed with exemplary costs.
7. Based upon these rival pleadings of the parties, following issues have been framed by my predecessor:- 82 O.S.No.7904/2000
1. Whether plaintiff proves that the suit properties are joint family properties of himself and defendants?
2. Whether plaintiff prove that the business which are named in A schedule of the plaint are joint family business consisting of plaintiff and defendants?
3. Whether plaintiff proves that suit B schedule properties are purchased from joint family nucleus and resources generated by the joint family business?
4. Whether defendants prove that there is severance of joint status between plaintiff and defendants and the plaintiff is separated from the defendants on 23/01/1967?
5. Whether defendant proves that the firm and companies shown in A schedule of the plaint are separate and independent firms and companies of persons who have promoted them and constituted them, as alleged in written statement?
6. Whether defendants prove that suit B schedule properties are separate and self acquired properties of defendants who purchased them under title deeds as stated in written statement?
7. Whether defendants prove that the suit is not maintainable in respect of trust in Sl.No.26 to 32 of A schedule properties?
8. Whether defendants prove that this Court has no jurisdiction to consider the claim of plaintiff with respect to properties at Sl.No.26 to 32 of A schedule as they are trust properties?
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9. Whether defendants prove that this Court has no jurisdiction to consider the properties shown in Sl.No.7, 9, 10, 11, 15, 18, 22, 23 and 25 of A schedule as they are companies?
10. Whether defendants prove that the suit is bad for non-joinder of necessary parties?
11. Whether defendants prove that the court fee paid is not proper?
12. Whether defendants prove that the suit is barred by limitation?
13. Whether plaintiff proves that he is entitled for partition and separate possession of his share in all the suit schedule properties? If yes, at what share?
14. Whether defendants prove that themselves and plaintiff were carrying various business independently before or after 23/01/1967?
15. Whether plaintiff is entitled for mesne profits as claimed for?
16. Whether plaintiff is entitled for accounts as sought for?
17. Whether plaintiff is entitled for the relief sought for?
18. What order or decree?
8. Power of attorney holder of the plaintiff is examined as P.W.1, Ex.P.1 to P.227 and Ex.D.1 to D.22 got marked. The power of attorney holder of plaintiff has adduced rebuttal 84 O.S.No.7904/2000 evidence as P.W.1, Ex.P.231 to P.253 got marked and closed plaintiff's side. Defendant No.2 is examined as D.W.1 on his behalf, on behalf of L.Rs. of defendant No.1 and other defendants, Ex.D.23 to D.48 and Ex.P.228 to P.230 got marked and closed defendants' side.
9. Heard the arguments on both sides.
10. My findings on the above Issues are:-
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: In the negative
Issue No.6: In the negative
Issue No.7: In the negative
Issue No.8: In the negative
Issue No.9: In the negative
Issue No.10: In the negative
Issue No.11: In the negative
Issue No.12: In the negative
85 O.S.No.7904/2000
Issue No.13: In the Affirmative. Plaintiff
is entitled to 1/4th share +
1/20th share in 'A' and 'B'
schedule properties
Issue No.14: In the negative
Issue No.15: There will be separate
enquiry
Issue No.16: In the affirmative
Issue No.17: In the affirmative
Issue No.18: As per final order
for the following :-
REASONS
11. ISSUE NOS.1 TO 9 AND 14 DISCUSSED
JOINTLY:- These issues are interconnected with each other. To avoid repetition of the facts and evidence, I have discussed the above issues jointly.
12. Learned Counsel for the plaintiff also submitted during the course of arguments that these issues are interconnected and had argued on these issues commonly. The defendants have also advanced their arguments jointly on these issues.
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13. The plaintiff contends that deceased plaintiff A.S. Narayana Raju, defendant No.1 deceased A.S.Kuppa Raju and defendant No.2 A.S. Chinnaswamy Raju are the sons of deceased Akkal Raju. Deceased Akkal Raju and his elder brother deceased Subbaraju were originally hailed from village Pattayam, Chittore in Andhra Pradesh. In year 1900 deceased Akkal Raju, his brother Subbaraju and their sister Ramakka had come to Bengaluru due to financial strains for their livelihood. Deceased Akkal Raju, his elder brother Subbaraju and their sister Ramakka started working as agricultural laborers at Tayappahalli and Yeshwanthapur. Deceased Subbaraju and Ramakka had no issues. Further plaintiff contends that plaintiff, defendant Nos.1 and 2 born at Bengaluru. Defendant No.1 studied up to 4th standard. But the plaintiff was doing agricultural labour. Initially plaintiff and his father Akkal Raju had purchased a bullock cart and the plaintiff was kept in-charge of the bullock cart. Plaintiff used to run the cart for hire, for transporting fodder, jelly, sand, size stone and other building construction materials for the building contractors. The plaintiff came to acquaintance 87 O.S.No.7904/2000 with the building contractors and on their suggestions and guidance joint family commenced a small sub-contracting business out of the earnings contributed by the plaintiff's savings and labour. The nucleus and capital was also contributed by Akkal Raju who is father of plaintiff and defendant Nos.1 and 2 and Subbaraju, the brother of Akkal Raju. Plaintiff further contends that later years on the joint exertion of plaintiff, defendants and their father late Akkal Raju, the said business of the joint family of sub-contract thrived well. The sub-contract on piece work basis started pouring in and few to be named are the municipality works like formation of roads, drainage, water lines etc. It was during that period, out of the savings and labour of the plaintiff and also joint family earnings a site was purchased at Pipeline Road, Malleswaram and in the said site a house was also built up by the joint family and father of the plaintiff Akkal Raju, Subbaraju along with plaintiff and defendants were living together until 1960 in the house built at Malleswaram and running joint family business. When the family grew, some acquisitions took place, houses were built 88 O.S.No.7904/2000 and for convenience sake each family started living separately for mess and welfare. There was no division of the property or in status of joint family. The family business developed by leaps and bounds and when more contracts were awarded, the joint family used to lend the names of either of the defendants for convenience, either for the purpose of tax or otherwise and later on family purchased several trucks, lorries for the purpose of family business out of the joint family funds and used the vehicles and machinery like concrete mixers, etc., in the construction business. The joint family of plaintiff and defendants floated several construction companies in different and various names with various combination of family members, for example ASK and Brothers, Raju and Co., etc. Some are partnership firms, some registered public or private limited companies depending upon business convenience and better business prospects. The nucleus and capital for all the said concerns and business was invariably funded and contributed from out of the joint family resources and capital funds, are morefully described in the 'A' schedule concerns and most of the 89 O.S.No.7904/2000 business concerns are invariably comprised with the defendants and the plaintiff, the three brothers and their children. Hence joint family of the plaintiff and defendants had purchased 'B' schedule properties out of the joint family funds and joint family nucleus. There was no partition in the family of the plaintiff and defendants. They are still in joint family. The cause of action arouse for the above suit in the month of October 1999 when the P.A. holder of the plaintiff, plaintiff No.1(e) demanded to settle the matter and got issued notice against the defendants for partition and separate possession of share in the joint family concerns. Further plaintiff contends that defendants have changed their attitude with respect to monthly payments to the plaintiff in respect of Hotel Kanishka and other companies and partnership firms. The plaintiff contends that defendants have hatched a criminal conspiracy not only against the plaintiff, but also female members of the joint family, as originally out of the profits accrued by the joint family business, a corpus was raised for the purpose of creating a family trust for the benefit and welfare of the family members under the name 90 O.S.No.7904/2000 and style as 'A.S. Kupparaju and Brothers Family Trust' in which the beneficiaries were 24 members including family members. To this effect a trust deed dated 15/07/1974 came into existence. Hence filed this suit.
14. The defendants appeared through their counsels and filed written statement denying all the averments made in the plaint. Defendant No.1 has denied the contention of the plaintiff and contended that there was no joint family, joint family business and joint family properties shown at schedule 'A' and 'B'. Defendant No.2 has also taken same contention as taken by defendant No.1. Defendant Nos.1 and 2 have taken definite and specific contention that plaintiff separated from the joint family of late Akkal Raju and his sons, i.e., defendant Nos.1 and 2 on 23/01/1967. After the plaintiff went out of the family fold about 33 years back, he had not claimed in writing or by his conduct within these period a joint family status with any of the defendants. The status of the joint family of the plaintiff and defendants was severed long back. Further defendants contend that the plaintiff has confirmed the severance of the joint status by 91 O.S.No.7904/2000 writing in the year 1996. Hence there is no existence of joint family of the plaintiff and defendants and the suit of the plaintiff is barred by limitation. The defendants have produced memorandum of family arrangement drawn on 17/11/1996 at Ex.D.47. The plaintiff was arrayed as party No.22 in the said family arrangement-Ex.D.47. The said family arrangement was drawn, as there was a dispute between the family of defendant No.1 and family of defendant No.2. Plaintiff was the main person to resolve the dispute between the family of defendant No.1 and defendant No.2. Defendants have taken a specific contention that the suit schedule 'A' and suit schedule 'B' properties are self acquired and individual properties of the defendants, the title to whom standing in their names.
15. P.A. Holder of the plaintiff is examined as P.W.1. He reiterated the facts narrated in the plaint. Defendant No.2 is examined as D.W.1 on behalf of L.Rs of defendant No.1 and himself and also as power of attorney holder of L.Rs. of defendant No.1.
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16. Both parties' counsels have relied on so many decisions. Learned Counsels for both parties have placed reliance on the ruling reported in AIR 2004 Karnataka 479 (T.S. Subbaraju vs. T.A. Shivarama Setty and others) and AIR 1993 Kant 148 (Dandappa Rudrappa Hampali and others vs. Renukappa alias Revanappa and others) wherein Their Lordships have held that:-
15. The fundamentals of Hindu Law requiring a study of the Text, Digest, Commentaries need not be undertaken, in view of the judicial pronouncements. A co-ordinate Division Bench of this Court having considered all important earlier pronouncements of the Apex Court which have a bearing on the decision making recorded its summary of findings in the case of Dandappa Rudrappa Hampali and others vs. Renukappa alias Revanappa and others AIR 1993 Kant 148 (supra) which in the circumstances is apposite.
15. All properties inherited by a male Hindu from his father, father's father or fathers paternal grandfather, is 'ancestral property'. A person may possess ancestral property as well as his self acquired property, it is permissible for a coparcener to blend his self acquired property with that of the ancestral or joint 93 O.S.No.7904/2000 family property. A property acquired with the aid of the joint family property also becomes joint family property.
The person acquiring a property if has command over sufficient joint family property, with the aid of which the new property could be acquired, there is a presumption that the acquired property belongs to the joint family. In such a case, the acquirer has to show that his acquisition was without the aid of any joint family assets. However the initial burden is on the person who asserts, that the newly acquired asset is of the joint family to prove, that the acquirer had command over sufficient joint family assets with the aid of which he could have acquired the new asset.
16. Existence of a joint family does not lead to the inference that property held by any member of the family is joint. In Appalaswami v. Suryanarayanamurti, AIR 1947 PC 189 at p. 192, the Privy Council held:
"Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been 94 O.S.No.7904/2000 acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property".
35. The initial burden to prove the existence of sufficient family property which could form a nucleus for other acquisition or for the business carried on by the brothers, is on the plaintiff.
36. Existence of sufficient family asset so as to form a nucleus for further acquisition is a question of fact. Such a fact can be proved by direct evidence should be clear, unequivocal and clinching, as otherwise, there is every danger of the self acquisitions of a person being lost to another who claims a share in it, based on the past prosperity of the family".
20. In the case of Sidramappa Veera-bhadrappa (AIR 1962 Mys 38) (supra), the subject matter was in relation to a gift by a father to a son and the question was whether the same could constitute an ancestral property. This authority cannot come to the aid of the defendants since it is nobody's case that there was a gift of joint family property.
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22. The Apex Court in G. Narayana Raju's case MANU/SC/0113/1968 : [1968] 3SCR464 (supra) held thus :
"It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate."
27. In the case of K.V. Narayanaswamy Iyer v.
Ramakrishna [1964] 7SCR490 relied upon by the appellant in support of her contention that on the date of acquisition of the properties, the joint family had sufficient nucleus for acquiring it and that the properties in the names of 1st and 2nd respondents members of the joint family should be presumed to be acquired from out of the family funds and so to form part of the joint family properties.
28. In Mallappa Girirnalappa Betgeri v. R. Yellappagouda Patil, AIR 1959 SC 906, the Supreme 96 O.S.No.7904/2000 Court, in the light of the undisputed fact that certain properties belong to the joint family and having restrained itself from interfering with the finding of sufficiency of nucleus, recorded by the civil court, held that there arose a presumption that the properties acquired by the manager, as Kartha, were joint family properties.
30. The Apex Court in the case of Mudigowda Gowdappa Sankh v. Ramachandra Revagowda Sankh MANU/SC/0829/1969 : [1969]3SCR245 held thus :
"The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties. The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been 97 O.S.No.7904/2000 acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. In Appalaswamy v. Suryanarayanamurti, ILR (1948) Mad 440 : AIR 1947 PC 189 Sri John Beaumont observed as follows :
'The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
17. Hence it is settled principle of law that initial burden is on the plaintiff to prove and establish that there is a joint family of the plaintiff and defendants and the suit 98 O.S.No.7904/2000 schedule properties are purchased out of the joint family nucleus or joint family funds.
18. It is admitted fact that the deceased Akkal Raju who was father of plaintiff and defendant Nos.1 and 2 had come to Bengaluru along with his elder brother Subbaraju and his sister Ramakka. It is also admitted fact that family of deceased Akkal Raju i.e., plaintiff, defendants, deceased Subbaraju, who was elder brother of Akkal Raju and Ramakka had constituted joint family. It is admitted fact that deceased Ramakka had no issues and elder brother of Akkal Raju, deceased Subbaraju had also no issues. It is admitted fact that Akkal Raju died on 24/05/1981. It is admitted fact that during pendency of the suit defendant No.1 died and his L.Rs. were brought on record. It is admitted fact that plaintiff died during pendency of the suit. It is admitted fact that Ramakka was a widow who had brought sufficient funds and purchased cows and buffaloes. It is also admitted fact that plaintiff, defendant Nos.1 and 2, their father Akkal Raju and elder brother of Akkal Raju, Subbaraju were residing with Ramakka and she was looking after the joint family of the 99 O.S.No.7904/2000 plaintiff and defendants who had sufficient funds and she was doing milk vending business in the area. It is admitted fact that plaintiff had issued legal notice against the defendant No.1 and 2 calling upon them to effect partition and give legitimate share of the plaintiff on 14/07/2000 as per Ex.D.23 and it is admitted fact that defendant Nos.1 and 2 had issued reply notice to plaintiff as per Ex.D.24. It is admitted fact that defendant No.1 was eldest son of deceased Akkal Raju, plaintiff is second son and defendant No.2 is last son of deceased Akkal Raju. It is also admitted fact that souvenir was released in the year 1980 as per Ex.P.52 during the 60th birthday of defendant No.2, i.e., profile of the family of the plaintiff and defendant Nos.1 and 2 and Ex.P.228 is CD published by plaintiff and defendant Nos.1 and 2.
19. The defendants have taken specific contention that there was no joint family of plaintiff and defendants. The status of the joint family was severed long back on 23/01/1967 about 33 years back.
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20. Defendant No.2 is examined as D.W.1 on behalf of L.Rs. of defendant No.1 and on behalf of himself. He has produced Ex.D.47-the memorandum of family arrangement dated 17/11/1996. The said document was marked subject to objection raised by the learned Advocate for the plaintiff on the following grounds:
1. It is not a family arrangement as contended.
2. The said document does not relate to transaction/properties within the family members.
3. The recital of the document does not show alleged settlement of the family property.
4. It is inchoate document and it is not registered.
The above objections are raised solely on the document without venturing the merits of the case and the document is admitted nor denied.
21. The objection raised by the learned Advocate for the plaintiff is that this document is not a registered and these objections shows that plaintiff has not admitted the 101 O.S.No.7904/2000 document nor denied it. The objection raised by the plaintiff is overruled and set aside. Hence Ex.D.47 is marked by overruling the objection. Mere marking of the document as per Ex.D.47 is not a proof and defendants have to prove the document by examining the attesting witness and by examining the author or scribe of the document. Mere marking is not sufficient. The defendants have to prove the document by examining the attesting witness and the scribe of the document, which has come from the defendant's possession.
22. It is pertinent to note that defendant No.2/D.W.1 has not identified the signature of the plaintiff during the course of his evidence and D.W.1 during course of his evidence, he identified his signature found on Ex.D.47. He identified the signature of wife of defendant No.1 and other signatures. But D.W.1 has not identified the signature of plaintiff-A.S.Narayana Raju. Plaintiff has filed rebuttal evidence. During the course of cross-examination, defendants have not confronted the said document to P.W.1 for rebuttal evidence on Ex.D.47 and has not got marked the 102 O.S.No.7904/2000 signature of the plaintiff through P.W.1. Hence the defendants have failed to prove Ex.D.47.
23. Learned counsel for the defendants has placed reliance on Section 73 of Indian Evidence Act - Comparison of the signature by the Court. This is one type of mode of proof of Ex.D.47. Defendants therefore contended that Ex.D.47 is proved in terms of Section 67 and 73 of Evidence Act. P.W.1, i.e., P.A. holder of the plaintiff is familiar to the signature of his father-plaintiff A.S.Narayana Raju. The signature found on Ex.D.47 and admitted signatures are tallied with each other. The defendants have placed reliance on Section 73 of Evidence Act to compare the disputed and admitted signature of plaintiff. The defendants have placed reliance on the ruling reported in Smt.Rami Bai vs. Life Insurance Corporation of India reported in AIR 1981 MP 69, it is held that Section 67 of Evidence Act does not down any particular mode of proof for proving that a particular writing or signature may be proved by any of the modes including comparing in Court, the disputed signature and handwriting with some admitted signatures or writings and also placed 103 O.S.No.7904/2000 reliance on the ruling reported in Murarilal Vs. State of Madhya Pradesh in AIR 1980 SC 531, which refers to the power of the Court to compare the signature as per Section 73 of Evidence Act. Though defendants have placed reliance on these decisions, with great respect the principles laid down in the above said rulings are not applicable to the case in hand, as the defendants have not proved the document Ex.D.47 by examining the attesting witness and scribe which is a well settled law to prove the document. Hence the defendants have failed to prove Ex.D.47 in accordance with law.
24. Ex.D.47 is not proved by the defendants and it is not helpful to the case of the defendants. Plaintiff had got issued legal notice against the defendants prior to filing the present suit as per Ex.D.23 to effect partition in the joint family properties of the plaintiff and defendants and to give his 1/3rd legitimate share. Whereas defendants have replied to the legal notice issued by the plaintiff as per Ex.D.24. Defendants have not taken contention that there is existence of Ex.D.47 and the severance of joint family of the plaintiff 104 O.S.No.7904/2000 and defendants on 23/01/1967. Ex.D.47 is not a casual event of the family of the defendants. If really Ex.D.47 was in existence and in possession of the defendants, the defendants would have narrated the said facts in Ex.D.24. Hence it is crystal clear that existence of Ex.D.47 is doubtful and created one.
25. Learned Advocate for the plaintiff has placed reliance on the averments made in the objection filed by the plaintiff to I.A.No.5 under Order 7 Rule 11 (b) and (c) at para 6 which reads as under:-
"6. Even the document referred in para 4, Page 3 of the affidavit, has no relevance and it has to be proved by the defendants. They are all make believe documents only for the purposes of Income Tax returns, Wealth Tax returns, raising corpus for creating other partnership firms, excluding the plaintiff's interest. Prior to this document, dated 17/11/1996, several family trusts, partnership firms companies were created for benefit of the joint family, but there was no whisper of any kind of partition, much less 105 O.S.No.7904/2000 the oral partition dated 23/01/1967. The document referred to dated 17/11/1996, is to be read in toto along with other documents produced, which are contradictory to each other. All the facts sworn in the affidavit filed, in support of I.A.No.5 are to be proved to non-suit the plaintiff."
26. The said contention of the plaintiff clearly goes to show that plaintiff has not admitted that there was existence of Ex.D.47. The entire pleadings has to be looked into. The entire pleadings, i.e., averments in the objections clearly goes to show that plaintiff has not admitted the contents of Ex.D.47. Hence the contention of learned advocate for defendants that plaintiff has admitted existence of Ex.D.47 has no force at all.
27. Learned Advocate for the plaintiff has contended that defendants neither in the written statement nor in their evidence have explained the circumstances leading to alleged separation on 23/01/1967 by the plaintiff, which was categorically denied by the plaintiff. No documents were produced to prove the accounts of the 106 O.S.No.7904/2000 plaintiff were actually settled and properties were allotted to the share of the plaintiff on his separation. The said alleged separation on 23/01/1067 is an imaginary. The said contention of the plaintiff holds some water. I have gone through the recitals of Ex.D.47, where there was no any explanation in the recitals why plaintiff who was arrayed as party No.22 has separated from the joint family of defendant Nos.1 and 2 and their father deceased Akkal Raju and what was the properties that were allotted to plaintiff at the time of separation in the year 1967. Hence there was no any explanation given by the defendants and there was no any partition or separation of the plaintiff from joint family and no properties were allotted to the plaintiff by metes and bounds.
I have placed reliance on the ruling reported in M.Venkataramana Hebbar (D) by L.Rs. vs.
M.Rajagopal Hebbar and others 2007 AIR SCW 2863 wherein in the Head Note it is observed as under:
"Hindu Law - Joint Hindu Family property -Suit for partition - Defence of family settlement - Not tenable in absence of 107 O.S.No.7904/2000 partition of property by metes and bounds as per settlement.
Any co-owner can cause a severance in the status of joint family by expressing his unequivocal intention to separate. Such intention can be expressed even by filing a suit for partition. But despite such separation in the joint status, parties may continue to possess the lands jointly unless a partition of the joint family property takes place by metes and bounds. Before the Court rejects a claim of partition of joint family property, at the instance of all the co-owners, it must be established that there had been a partition by metes and bounds. By reason of the family settlement, a complete partition of the joint family property by metes and bounds purported to have taken place."
The principle laid down by their Lordship is squarely applicable to the case on hand. Mere separation is not sufficient. It must be established that there had been partition by metes and bounds. Hence Ex.D.47 is not proved and there was no explanation that what were the properties allotted to the plaintiff at the time of oral partition as per Ex.D.47. Apart from these documents, the plaintiff has 108 O.S.No.7904/2000 placed reliance on the sovereign published during 60th birthday of the second defendant, which is marked at Ex.P.52. The profile of the family with respect to ASK Brothers Group and the CD-Ex.P.228 published during the said period makes it clear as to jointness of the family. Ex.P.52 sovereign published by the plaintiff and defendant Nos.1 and 2 family on the eve of 60th birthday of defendant No.2-A.S. Chinnaswamy Raju. During the course of cross- examination of D.W.1 at page 94 he admits that family had published sovereign as per Ex.P.52 and the articles written in the said sovereign are true and correct. Hence plaintiff has proved and established that there was no severance in joint family of plaintiff and defendants.
28. The CD Ex.P.228, which is recorded by the defendants and the contents of the CD are also admitted by D.W.1. Hence the CD also goes in favour of the plaintiff. These two documents are goes against the defendants. D.W.1 during the course of cross-examination, he makes it clear as to existence of joint family and corpus. 109 O.S.No.7904/2000
29. Though Ex.P.52 is in Telugu language, there is one article written in English, i.e., a story of hard work and success wherein there is a recital that:
"Akkal Raju's family migrated to Bangalore, the capital of Karnataka, which was not a developed town then. The places like Malleswaram, Kothandaramapuram, as they are known today, were at that time fertile lands suitable for agriculture. Sri Akkal Raju started his livelihood in Bangalore with agriculture and also started some small business at later stage along with agriculture.
His wife Smt.Subbamma was a pious and noble lady. Sri Akkal Raju and Smt.Subbamma were blessed with three sons namely Kupparaju-defendant No.1, Narayana Raju-plaintiff and Chinnaswamy Raju-
defendant No.2 and two daughters Lakshmamma and Rukmani. Though Akkal
Raju had the ambition to educate his children well, he was forced to put them in family business as most of the Kshatriya families did not give importance in educating their children in those days. Hence Sri Kuppa Raju and his bothers started helping their father in 110 O.S.No.7904/2000 his agriculture and business and grew up as hardworking adults.
Approximately 50 years ago, around the year 1940, the eldest son Kuppa Raju started taking up civil contract works. The younger brothers, Narayana Raju and Chinnaswamy Raju helped their brother to develop the business and attain a reasonably good stature. Over a period of time Kuppa Raju brothers came to be known as leading contractors of Karnataka Government hospitals in Bellary, Bijapur and Davanagere, the irrigation dams and aqueducts across the Kabini river, factory buildings such as HAL, Hangers and Indo Nippon Bearings Ltd., and some of the major buildings in Hyderabad, Bangalore and other towns of Karnataka and the cricket stadium in Bangalore are only a few examples of the work carried out by them."
30. This document clearly goes to show that there was joint family of plaintiff and defendants. Plaintiff has placed reliance on Ex.P.51-Atria Holdings. Ex.P.51 reveals that Atria Holdings is a group holding company of 111 O.S.No.7904/2000 organization which was started some 40 years ago by three brothers, Sri A.S. Kuppa Raju-defendant No.1, Sri A.S.Narayana Raju-plaintiff and Sri A.S.Chinnaswamy Raju- defendant No.2. The group has grown into a large diversified operation through sharp business acumen displayed by its founders over the years. Starting as a Construction Company, the activities now range from Construction, Building material manufacture, Hotels, Information Technology, Financial Services and Real Estate Developers. It is presently headed by a Core Group consisting of Sri A.S.Kuppa Raju, Chairman and Sri A.S.Chinnaswamy Raju Managing Director, Sri C.S.Sunder Raju and Sri K.Nagaraj are the two directors. The activities of the group in this line of business was started by Sri A.S.Kuppa Raju-defendant No.1, Sri A.S.Narayana Raju-plaintiff and A.S. Chinnaswamy Raju- defendant No.2. Ex.P.53- Memorandum of Association and Articles of Association and CD-Ex.P.228 are all clearly goes to show that plaintiff has discharged his burden to establish the initial burden on the plaintiff to prove that there is a joint family.
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31. Plaintiff has placed reliance on Ex.D.26- partnership deed of M/s.Chamaraju and Co., plaintiff- A.S.Narayana Raju, defendant No.1- deceased A.S.Kuppa Raju, defendant No.2-A.S.Chinnaswamy Raju and Chamaraju are the partners. This firm came in existence on 05/12/1957. At that point of time, plaintiff, defendant No.1 and 2 were residing in item No.6 of 'B' schedule property bearing No.1364/3, Palace Guttahalli Main Road, Malleswaram. D.W.1 had categorically admitted that Akkal Raju, i.e., father of plaintiff and defendant Nos.1 and 2, defendant No.1 Kuppa Raju and Ramakka had no separate accounts. All the earnings of Ramakka were utilized for managing their house. D.W.1 had categorically admitted that Ramakka used to maintain the family by providing food and Kuppa Raju might have paid his earnings in the hands of Ramakka.
32. It is admitted fact that Ramakka had brought sufficient funds, buys cows and buffaloes, she was doing milk vending business, and she pre-deceased Akkal Raju. Ramakka had no issues. Hence Akkal Raju inherited the 113 O.S.No.7904/2000 property of Ramakka at item No.6 and 11 of 'B' schedule property.
33. Plaintiff contends that in portion of item No.1 and 2 of plaint 'B' schedule, there was an industry by name Core Designs run by Kuppa Raju, i.e., defendant No.1, one son-in-law namely Narayanaraju. Even after the formation of 'Kupparaju and brothers Charitable Foundation Trust, an attempt was made to convert a portion of the said property into stock in trade. In fact, an attempt was made to sell 4/15th share in the said land to one M/s.Winfield Enterprises Pvt. Ltd., for total sale consideration of Rs. 20 Crores. ASK Atria Park Company, as could be seen from page 116 of cross-examination of D.W.1, was an unregistered Association of persons. The plaintiff had no knowledge as to who created the same. Out of the aforesaid consideration, an amount of Rs. 3 Crore is said to have been received by the first and second defendants, who were then managing the affairs of the family. Out of which, a sum of Rs.1 Crore 42 Lakhs was received in the name of Atria Holdings, then a partnership firm and the remaining Rs.1 Crore and 84 Lakhs was given to 114 O.S.No.7904/2000 second defendant, but there was no accounts. This was the starting point of differences between the parties. Though these facts were not pleaded by the plaintiff in his plaint, but the plaintiff has pleaded that there was differences between plaintiff and defendants.
34. Another contention of the plaintiff is that one of the major manifestation of the jointness of the family was proclaimed in the year 1984. The 2/3rd of the interest of the interest in the property bearing Sy.No.6 of Hebbal, Sy.No.99 and Sy.No.100 of Cholanayakanahalli, Bengaluru, i.e., item No.1 and 2 measuring 26 acres 27 guntas, which was purchased by the joint family represented through Savithramma, wife of defendant No.1 and defendant No.2 along with one Kuppaswamy under the registered sale deed dated 19/08/1961 was proposed to be forfeited by the authorities concerned under the provisions of Urban Land Ceiling Act. Hence this is joint family property of the plaintiff and defendants. In respect of item No.3 of 'B' schedule property sale deed dated 19/08/1954 was in favour of defendant No.1, which is marked at Ex.P.2, item No.4 of 'B' 115 O.S.No.7904/2000 schedule property sale deed dated 04/12/1952 in favour of defendant No.1, which is marked at Ex.P.3, item No.5 of 'B' schedule property sale deed dated 13/06/1963 in favour of plaintiff is marked at Ex.P.4, item No.7 of 'B' schedule property sale deed dated 08/05/1969 in favour of defendant No.1, is marked at Ex.P.5, item No.8 was allotted to Basavaraje Urs and given to M/s. Gayathri Enterprises, item No.9 of 'B' schedule property was acquired by M/s. A.Chamaraju and Co., item No.10 of 'B' schedule property purchased by defendant No.1 under registered sale deed dated 02/09/1944, item No.11 was purchased by Ramakka, item No.12 of 'B' schedule property was purchased by Akkal Raju, father of plaintiff and defendant Nos.1 and 2, item No.13 to 26 are purchased by plaintiff, item No.27 of 'B' schedule property the land bearing Sy.No.26 purchased by defendant No.1 under registered sale deed dated 14/04/1967 as per Ex.P.13, item No.28 of 'B' schedule property the land bearing Sy.No.24 purchased by defendant No.1 under registered sale deed dated 05/06/1967 as per Ex.P.14, item No.29 of 'B' schedule property the land bearing Sy.No.66 116 O.S.No.7904/2000 purchased by defendant No.1 under registered sale deed dated 07/04/1969 as per Ex.P.15, item No.30 of 'B' schedule property land bearing Sy.No.86, 87 and 88 purchased by defendant No.1 under registered sale deed dated 15/03/1978 as per Ex.P.16, item Nos.31, 33 and 36 of 'B' schedule property are acquired by Kodanda Raju, son of defendant No.1 under registered sale deed dated 03/02/1972, item No.37 of 'B' schedule property purchased by Sunder Raju, son of defendant No.2 under sale deed dated 08/12/1982 and he constructed factory shed and let out to Sunray Computers (P) Ltd., item No.38 is the property acquired by Mysore Spun Concrete Pipes (P) Ltd., item No.39, 40, 41, 42, 43 and 59 properties of 'B' schedule are acquired during pendency of the suit, item Nos.44 and 45 of 'B' schedule property are site No.340 and 339 allotted by BDA on 22/03/1963 and sale deed is registered on 02/05/1997 in favour of defendant No.2, item No.46 of 'B' schedule property is site allotted by BDA on 12/04/1972 and sale deed is dt5d 12/05/1979 in favour of defendant No.2 as per Ex.P.26, item No.49 property acquired by defendant No.13 Indiramma, wife of defendant No.2, 117 O.S.No.7904/2000 under registered sale deed dated 15/06/1996 as per Ex.P.27, item No.53 is acquired by Gopala Raju, son of defendant No.1 under registered sale deed dated 08/04/1965 as per Ex.P.31, item No.61 sale deed dated 16/3/1988 as per Ex.P.32, item No.62 sale deed dated 22/01/1990 as per Ex.P.34, item No.66 sale deed dated 08/05/1991 as per Ex.P.38, item No.67 and item No.68 sale deed dated 06/07/1992 as per Ex.P.39 are purchased by Sunder Raju, son of defendant No.2, item No.63 was acquired by defendant No.2 under registered sale deed dated 07/07/1994 as per Ex.P.35, item No.64 was acquired by defendant No.2 under registered sale deed dated 06/07/1994 as per Ex.P.36, item No.65 was acquired by defendant No.2 under registered sale deed dated 13/08/1993 as per Ex.P.37, item No.70 was acquired by defendant No.2 under registered sale deed dated 13/08/1993 as per Ex.P.41, item Nos.71 and 72 were acquired by Kodanda Raju, son of defendant No.1 under registered sale deed dated 31/08/1972. These properties are purchased by the plaintiff and defendants out of the joint family funds and joint family nucleus.
118 O.S.No.7904/2000
35. Learned advocate for the defendants contends that P.W.1 is not a competent person to depose before the Court on behalf of plaintiff, as P.W.1 himself admitted in his cross-examination and he deposed at page 43 and 44 as under:
"I do not know how they were lived and what were the properties prior to 1980. They were agricultural labourers at Thirumalarajapuram and also admits that he do not know the facts of the case prior to 1980."
Hence he is not a competent person and his evidence is hearsay evidence. The said contention of the learned advocate for the defendants has no force at all. Plaintiff has filed I.A.No.13 under Order 3 Rule 2 read with Section 151 of C.P.C. praying therein to permit the power of attorney holder of the plaintiff to prosecute/conduct the case and lead evidence on behalf of the plaintiff, in the interest of justice and equity. The contents of the affidavit reveals that plaintiff is aged about 90 yeas, he is not in a position to appear before 119 O.S.No.7904/2000 the Court and prosecute the suit. He has executed power of attorney in favour of his son/P.W.1 and he has given necessary instructions to him to the best of his recollection and authorises P.W.1 to depose on behalf of him. The said I.A. came to be allowed and General Power of Attorney holder of the plaintiff is examined as P.W.1. Learned advocate for the defendants has placed reliance on the ruling reported in Mankaur Dead by LR's Vs. Hartar Singh Sangha reported in (2010)10 SCC 512. The relevant portion is extracted herein under:
"12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a 120 O.S.No.7904/2000 witness to prove those acts or transactions.
If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
121 O.S.No.7904/2000
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the Plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely 122 O.S.No.7904/2000 managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
Point (a) shown in the said principles is that An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. In this case defendants themselves have taken contention that plaintiff has no role in this case. The said case is filed at the instance of P.W.1, who is son of the plaintiff and he is solely acquainted with the facts of the case. Hence the present case is filed by the 123 O.S.No.7904/2000 plaintiff at the instance of P.W.1. This contention itself is raised by the defendants. Hence P.W.1 is competent and proper person to adduce evidence.
36. Learned advocate for the defendants has taken contention that plaintiff was mentally alert to give instructions and information to P.W.1 to give evidence. Therefore it is evident that reason to keep the plaintiff out of the witness box is not tenable and casts a doubt on his seriousness of health. So far as physical fitness of the plaintiff is concerned, P.W.1 has admitted in his evidence at page 41 as under:
" It is true that my father had been to Singapore tour on 30/05/2012 and returned back on 05/06/2012."
But the defendants have not taken further evidence of P.W.1 wherein P.W.1 deposes that plaintiff had been to Singapore along with assistants. Hence it shows that health of plaintiff was not good at the time of tour. Further the evidence of P.W.1 discloses that plaintiff was Chairman of Vyalikaval Education Society. This evidence was recorded on 124 O.S.No.7904/2000 20/09/2013. Plaintiff died on 20/10/2013 after one month. This shows that plaintiff was not in good health. Plaintiff was aged about 90 yeas and he was unable to attend the Court due to his advanced age. Hence plaintiff has rightly delegated his power to his son P.W.1 who had given evidence on behalf of the plaintiff. Hence P.W.1 is competent to give evidence, as this is suit for partition and separate possession and P.W.1 is born in the family of the plaintiff and defendants. He might have acquainted with the facts of the case by hearing the facts of the case through his elders. Hence P.W.1 is competent person to adduce evidence.
37. I have gone through the contents of Ex.D.47. Wherein Ex.D.47 clearly reveals that defendant No.1 and 2 and their father deceased Akkal Raju were in joint family along with Ramakka. Ramakka was predeceased to Akkal Raju. There is also recital in Ex.D.47 that Trust was established out of the joint family funds and joint family nucleus. Suit item No.1 and 2 were purchased by defendant No.2 and wife of defendant No.1 in the year 1961. It is admitted fact that plaintiff, defendants, their father Akkal 125 O.S.No.7904/2000 Raju and his sister Ramakka were residing jointly. Item No.1 and 2 purchased in the undisputed point of time. According to defendant Nos.1 and 2, plaintiff had left the family fold in the year 1967. Hence it is crystal clear that item No.1 and 2 purchased out of the joint family funds. Ex.D.47 at para 'O' and 'P' reveals as under:-
"O] Whereas the trustees of A.S.KUPPARAJU & BROTHERS CHARITABLE FOUNDATION, in the meantime have converted a portion of the SCHEDULE "A"
PROPERTY described in SCHEDULE "B" into and as stock-in-trade of a real estate business started by them of developing the same by constructing buildings on group housing scheme on 20/03/1996 under the name and style of "M/s. A.S.K.Park" and the SCHEDULE "B" PROPERTY had been treated and converted into and as stock-in-trade of real estate business of M/s.A.S.K. Park, so started and carried on by them to attain the main objects of the trust ; and P] WHEREAS Shri A.S.Kupparaju-
defendant No.1, A.S.Narayana Raju-plaintiff 126 O.S.No.7904/2000 and A.S.Chinnaswamy Raju-defendant No.2 being the PARTIES No.1, No.22 and No.11 respectively had been contending in the broader interests of preserving the reputation and standing of the family in the society and in difference to the wishes and specific directions of late Sri Akkal Raju expressed to them earlier at the time of separation and reaffirmed at the time of his death, that the other parties should accept the action of the PARTIES No.2 and No.11 in having founded the trust for charitable purposes and to treat the entire SCHEDULE "A" PROPERTY as the property of the trust;"
This clearly goes to show that trust was created out of the joint family funds and nucleus and also the property item No.1 and 2 which is joint family property. This clearly shows that trust was created and allotted only 2 acres and 37 guntas for the purpose of trust in item No.1 and 2. Hence plaintiff has established and proved his initial burden.
38. Now the burden is shifted on the defendants to show that defendants themselves and plaintiff were carrying various businesses independently after 23/01/1967. 127 O.S.No.7904/2000 Defendant No.2 examined as D.W.1 on behalf of himself and on behalf of L.Rs. of defendant No.1. Learned advocate for defendants contends that item Nos.13 to 26 of the 'B' schedule property which belongs to plaintiff are included in the plaint to make a false claim against the defendants. The sale deeds of said item No.13 to 26 reveals that plaintiff is absolute owner of the above said item No.13 to 26 as per Ex.D.1 to D.18 sale deeds. These properties were purchased by the plaintiff on 30/06/1965 onwards. The learned advocate for the defendants has placed reliance on the ruling in Rama Charandas vs. Girija Nandini Devi reported in AIR 1966 SC 323 wherein it is clearly laid down at para 10 that:
"The recital is an evidence as against the parties to the instrument. The above ratio and the recitals are clear and unambiguous to the effect that the plaintiff and his family were the absolute owners of the properties and having paid taxes and are in peaceful possession and enjoyment of the same and are also shown in the income tax and wealth tax returns."128 O.S.No.7904/2000
With great respect the principle laid down in the above said decision is not applicable to the present case in hand. Ex.D.1 to D.18 which are pertaining to item No.13 to 26 are came in existence after filing the suit. But we have to see whether the family was joint prior to filing the suit. The initial burden has already been discharged by the plaintiff by adducing oral evidence and the document produced by D.W.1 at Ex.D.47 which came from the possession of the defendants clearly shows that suit properties are joint family properties of plaintiff and defendants.
39. Defendants have failed to prove that suit properties shown in 'A' and ' B' schedule are self acquired and individual properties and standing in the name of plaintiff and defendants as contended by the defendants. On the other hand, plaintiff has proved and established that suit schedule 'A' and 'B' properties are joint family ancestral properties. The businesses which are shown in 'A' schedule are joint family business consisting of plaintiff and defendants. 'B' schedule properties are purchased by the family members of plaintiff and defendants from the joint family nucleus and 129 O.S.No.7904/2000 joint family funds and sources generated from the joint family business. The firms, companies shown in 'A' schedule and the 'B' schedule properties are joint family properties of plaintiff and defendant.
40. In view of the citation reported in M.Venkataramana Hebbar (D) by L.Rs. vs. M.Rajagopal Hebbar and others 2007 AIR SCW 2863, the defendants have failed to prove that there is severance of joint family status between plaintiff and defendants and the plaintiff is separated from the defendants on 23/01/1967. There was no any explanation given by the defendants and there was no any partition or separation of the plaintiff from joint family and no properties were allotted to the plaintiff by metes and bounds.
41. Another circumstance where it goes to show that suit item No.9 was allotted to plaintiff. Defendant No.1 had constructed a house in the said property, defendant No.1 and his family members are residing till today in the said house. During the course of cross-examination of D.W.1, he 130 O.S.No.7904/2000 has admitted that property bearing site No.160/1, Kumara Park Extension, R.V. Layout, item No.9 of the plaint 'B' schedule which approximately measuring 1700 sq. ft. and a house of 30-40 squares was acquired in the name of A.Chamaraju and Co., was converted into individual property of Kupparaju without any objections from plaintiff and second defendant, who were also partners of the firm. In return to the said property, Chamaraju's group was given with a property in Sankey Road. This manifestly explains that plaintiff and second defendant did not have any say in the said partnership. Defendant No.1 deceased Kupparaju and his family admittedly residing in the said property and also constructed a hotel therein. Similar is the position with respect to all other partnerships.
42. Another circumstance which goes in favour of the plaintiff to show that plaintiff and defendants are joint family members and they are residing jointly, they had purchased suit schedule properties and had started business out of joint family funds and nucleus, as the defendants themselves admitted in their pleadings that plaintiff left the 131 O.S.No.7904/2000 family fold of the defendants and their father Akkal Raju on 23/01/1967. So before that it is admitted fact by the defendants that plaintiff had started contract work with Chamaraju prior to 1967. This is another circumstance where the family of the plaintiff and defendants has started sub- contract work.
43. Learned Advocate for the plaintiff has placed reliance on the ruling reported in AIR 1971 SC 1454 (Rajkumar Singh Hukum Chandji vs. Commissioner of Income Tax). In this case Their Lordships have held that there are two broad principles that are enumerated are as under:
(a) If the income was essentially earned as a result of funds invested, the fact that a coparcener had rendered some service would not change the character of the receipt. It will be a joint family income.
(b) If it is essentially remuneration for the services rendered by a coparcener and his services are availed not because of the reason that he was a 132 O.S.No.7904/2000 member of the family, the income in the hands of such member shall be his individual income"
The plaintiff submits that the determination of the aforesaid question does not in any away affect the constitution of joint stock companies, which disentitles this Court from exercising its jurisdiction. Hence this Court has got jurisdiction to entertain the case of the plaintiff.
Hence the above said two principles are applicable to the present case in hand. Hence this Court has got jurisdiction to entertain the case of the plaintiff.
44. Plaintiff has taken contention that joint family corpus are invested in various firms and companies shown in 'A' schedule, which not only resulted in accretion but also resulted in accumulation and augmentation. Some of the properties item No.3, 4, 7, 20 to 26 and 53 of 'B' schedule property were converted into trading property by developing the same into multistoried apartment buildings and as such accounts require to be taken from all the joint family had earned out of such ventures and plaintiff and defendants' 133 O.S.No.7904/2000 families are business families. Learned Advocate for the plaintiff has placed reliance on the ruling reported in AIR 1998 SC 401 (Rasiklal vs. Commissioner of Income Tax). The principle laid down in this case is amply applicable to the present case in hand. Hence I answer issue Nos.1, 2 and 3 in the 'affirmative' and issue Nos.4 to 9 and issue No.14 in the 'negative'.
45. Issue No.11:- The learned advocate for the defendants contends that plaintiff has not paid proper and correct court fee. Plaintiff has to pay court fee U/Sec.35(1) of Court Fee and Suit Valuation Act.
46. It is clear that as per Section 35(2), only in a suit for partition and separate possession of joint family property, the property owned jointly by plaintiff who is in possession of such property, court fee required to be paid at the rate specified in sub-section(2) of Section 35. The present suit filed by the plaintiff is one for partition of the property owned jointly or in common by plaintiff who is in possession of said property. It is a case wherein plaintiff is denied of his 134 O.S.No.7904/2000 title of joint property and has been excluded from the same as per Ex.D.47. Hence plaintiff has to pay court fee U/Sec.35(2) of Court Fees and Suit Valuation Act. Plaintiff has valued the suit by filing separate valuation slip as:
"The plaintiff has filed this suit for partition and separate possession of his 1/3rd share in the suit schedule properties, which are joint family properties owned by the plaintiff and defendants jointly and in common and in joint possession, control and management of the plaintiff and defendants. Their value is more than Rs.10,000/- and above. Hence a court fee of Rs.200/- is paid on the plaint as per Sec.35 (2) of K.C.F. & S.V. Act, 1958."
In the decision reported in 2006 AIR SCW 6351 (Jagannath Amin vs. Seetharama (dead) by L.Rs. and others) In Head Note it is held as under:
"Karnataka Court-fees and Suits Valuation Act (16 of 1958), Ss.35(1), (2); 7(2) (d) - Court Fee - Suit for partition and separate possession - Appellant being co-owner is presumed to be in constructive possession of property - Court-fee is 135 O.S.No.7904/2000 to be paid on deemed market value and not on actual market value."
47. The principle laid down in the above citation is applicable to the present case in hand. I have discussed in supra, the defendants have failed to prove the severance of joint family of plaintiff and defendants. Hence plaintiff has proved and established that he is in joint possession and enjoyment of the suit schedule properties along with defendants. The valuation slip is proper and correct and plaintiff has paid proper and correct court fee. Hence I answer issue No.11 in the 'negative'.
48. Issue No.12:- The defendants have taken contention that suit of the plaintiff is barred by limitation, as plaintiff has gone out of the family fold on 23/01/1967 and this fact has been narrated in Ex.D.47 in the year 1996, hence plaintiff ought have filed the suit within 12 years from the date of exclusion from the joint family and joint family property. But the plaintiff has filed the suit in the year 2000. Hence suit of the plaintiff is barred by limitation. 136 O.S.No.7904/2000
49. As I have discussed in supra, defendants have failed to prove the execution of Ex.D.47. Defendants have not examined the attesting witness of Ex.D.47 nor the scribe of Ex.D.47. Ex.D.47 was not proved. Mere marking of the document is not sufficient. Defendants have to prove the said document as per law enumerated U/Sec.63 and 67 of Indian Evidence Act. On the other hand, learned advocate for the defendants has contended that Court has got power to compare the signature of the plaintiff found on Ex.D.47. Though the Court has right to compare the signature U/Sec.73 of Indian Evidence Act, but the defendants have not identified the signature of the plaintiff on Ex.D.47 and also even D.W.1 during his cross-examination, he identified his signature, signature of wife of defendant No.1 Savithramma and others. But he did not identify the signature of the plaintiff. Hence defendants have failed to prove Ex.D.47. On the other hand plaintiff has taken specific contention that recently defendants have neglected the plaintiff and also not paid monthly maintenance as agreed by the defendants and the acts of both the defendant Nos.1 and 2 and their children 137 O.S.No.7904/2000 have given rise to different feelings and created suspicion and doubt their dealings in respect of joint family properties and joint family business concerns. One important dealing of the defendants and their children is that they have entered into contract of establishing a power project with Government of Karnataka in the name and style of 'Atria Power Corporation', M/s. Atria (Hydel) Power Corporation created out of joint family resources, firms, companies, trusts and projects undertaken by the said joint family wherein fraudulently the name of the plaintiff is not included in the agreement which according to the plaintiff is deliberate intention of the defendants to deprive him of the benefits and profits of the said projects and similar is his position in respect of Hotel Atria. The change of attitude by the defendants with respect to monthly payments to the plaintiff concerning Hotel Kanishka and other concerns. Hence plaintiff has got issued legal notice as per Ex.D.23 calling upon the defendants to give legitimate share of the plaintiff. Defendants had issued reply notice as per Ex.D.24, wherein defendants have not taken contention about existence of Ex.D.47 and also 138 O.S.No.7904/2000 defendants have not narrated in the said notice that the plaintiff had went out of the joint family fold by taking his shares. Hence Ex.D.47 not proved.
50. The learned advocate for the defendants has relied on the ruling reported in Kesharbai alias Pushpabai Eknathrao Nalawade (dead) by LRs. and another vs. Tarabai Prabhakarrao Nalawade and others in (2014)4 SCC 707 wherein it is held as under:
"It is a settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint property was partitioned or divided. Undoubtedly the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family."
The learned Advocate for defendants also relied on the decision reported in 2004(12) SC 754 (Krishnapillai 139 O.S.No.7904/2000 Rajasekaran Nair vs. Padmanabha Pillai) wherein it is held as under:
"A suit for partition will be determined by the fact that when the right to sue accrues which will act as a starting point for limitation. The SC held that the accrual of cause of action is decisive."
With great respect the principles laid down by their Lordships is not applicable to the present case in hand. Hence the suit of the plaintiff is well within time and I answer issue No.12 in the 'negative'.
51. Issue No.10:- The defendants have taken contention that suit of the plaintiff is bad for non-joinder of necessary parties. Plaintiff has not arrayed all the necessary parties in the suit. On the other hand, plaintiff contends that plaintiff has represented his branch and defendant No.1 and 2 have represented their respective branches in the above suit. This is suit for partition of properties of joint family and it is not necessary to make all the members of the branches of the joint family as parties to the suit. It is sufficient if the heads of all the branches of joint family are impleaded in the suit. 140 O.S.No.7904/2000 Learned advocate for the plaintiff has placed reliance on the ruling reported in Ganapathi Gopal Patil vs. Shankar Rama Patil and others in AIR 1974 Bom 106 wherein it is held that:
"The question to be borne in mind is whether by the suit framed, the plaintiff has not claimed partition inter se but claimed partition only the share of their branch."
Hence this principle is applicable, as per the plaintiff. Plaintiff also placed reliance on the ruling A.L.V.R. ST. Ramanathan Chettiar vs. A.L.V.R. ST. Veerappa Chettiar reported in AIR 1956 Mad 89, The Hon'ble Madras High Court had held that the Managing member can sue and be sued in all matters affecting the family, without joining other members of the family is a well settled proposition. But, in a partition suit, as already stated the entire joint family must be represented either expressly or impliedly. In the said case, by quoting Mayne's Hindu Law, 11th Edition Page 561, Paragraph 459 and page 371, Paragraph 301, the Court had held that In a partition suit all 141 O.S.No.7904/2000 the coparceners must be before the Court either as plaintiffs or as defendants. The learned author states that where the partition claim is between the branches of the family, only the heads of all the branches need be made as parties.
52. The contention of the learned advocate for the plaintiff holds some water, as this suit is for partition. Plaintiff represents his branch, defendant No.1 represents his branch and defendant No.2 represents his branch. The principle laid down by their Lordships in the above said citations are amply applicable to the present case in hand. During the course of cross-examination of D.W.1, he had admitted that there is no partition in his family and his sons and they are all living jointly.
53. Learned counsel for the plaintiff has placed reliance on I.A.No.42 filed by the plaintiff under Order 1 Rule 10(2) read with Section 151 of C.P.C. where the plaintiff intended to implead the proposed defendant Nos.14 to 26. Defendants have filed objection to the said I.A.No.42 taking contention that these proposed defendants are not proper 142 O.S.No.7904/2000 and necessary parties. Proposed defendant Nos.11 to 13 are wife and children of K. Gopal Raju, son of late Kupparaju. In the name of aforesaid proposed defendants, admittedly various properties are acquired and substantial investments are made. The defendants have taken contention that no relief is claimed against them and this makes it clear that they are not necessary parties to the suit. The said I.A. was disposed off by this Court on 12th February 2015 with observation that present application is not maintainable at this stage. Moreover if at all LR's of the plaintiff intending to take the advantage of the admission of D.W.1 during the cross-examination, they are at liberty to take the same during final arguments and on the said ground also the present application is not at all deserves to be allowed. Hence I.A.No.42 was disposed off with a liberty to plaintiff to advance his arguments on non-joinder of necessary parties at the time of arguing on main suit. Aggrieved by the said order passed by this Court on I.A.No.42, L.Rs. of plaintiff have preferred Writ Petition Nos.8308-8311/2015 and 8312- 8314/2015 (GM-CPC). The said Writ Petitions are disposed 143 O.S.No.7904/2000 off by confirming the order passed by this Court on I.A.No.42. So the plaintiffs had right to advance arguments on the point of non-joinder of necessary parties. By going through the objection filed by the defendants to I.A.No.42, it is clear that plaintiff has not prayed any relief against the proposed defendants and the defendants themselves contended that said proposed defendants are not proper and necessary parties. The plaintiff has filed the application only with an intention to harass them. Hence the contention of the defendants itself goes to show that suit is not bad for non- joinder of L.Rs. of defendant No.1 and children of defendant No.2.
54. Another contention of the defendants is that during pendency of the suit, plaintiff had sold suit item Nos.13 to 26 and defendants have produced Ex.D.1 to D.18 sale deeds executed by the plaintiff and his son in favour of purchasers. Plaintiff and his son i.e., plaintiff No.1(e), P.W.1 had sold more than 200 apartments during pendency of the suit and the said documents are marked at Ex.D.1 to D.18. The contention of the defendants is that neither plaintiff had 144 O.S.No.7904/2000 sought permission from the Court nor the plaintiff has impleaded them as defendants as necessary parties. Hence the suit is bad for non-joinder of necessary parties.
55. Learned advocate for the plaintiff has placed reliance on the ruling reported in ILR 2012 KAR 4129 (S.K. Lakshminarasappa, since deceased by his L.Rs., vs. Sri B.Rudraiah and others). In Head Note D it is observed as under:
D) CODE OF CIVIL PROCEDURE, 1908 -
ORDER 1 RULE 10 - Adding of parties in a partition suit - Adding of parties is permissible even after a preliminary decree -
Discussed - HELD, In suit for partition of properties of a Joint Hindu Family, there is no legal bar even after a preliminary decree had been passed, in an appropriate circumstances to add a party under Order 1 Rule 10 in the final decree proceedings if the Court thinks that the addition of such party is necessary to adjudicate upon all questions effectively and completely. The proceedings in a partition suit do not become final unless the final decree is passed. It is only the final decree 145 O.S.No.7904/2000 that brings about termination of suit. The Court can add a party in a partition suit even after a preliminary decree but before a final decree takes place. A suit for partition is finally disposed off only with the passing of a final decree. Impleading of additional parties subsequent to passing of a preliminary decree in a suit for partition is permissible, only if none of the questions already settled by the preliminary decree would not have to be re-opened by reason of such a joinder.
Therefore, it is clear in order to decide the share to which each member of a family or a person claiming under such member of a joint family, the necessary parties are only the members of the joint family. Once all those members are made parties, the suit for partition cannot be dismissed on the ground of non-joinder of necessary parties.-
FURTHER HELD, The purchasers from those members of the family or subsequent purchasers from the earlier purchasers are proper parties in a suit for partition. They could be added even during final decree proceedings. For not adding them as parties, a suit for partition cannot be dismissed. - ON 146 O.S.No.7904/2000 FACTS, HELD, The Trial Judge was in total error in not properly appreciating the difference between a necessary party and a proper party in a suit for partition and in dismissing the suit of the plaintiff for partition and separate possession. It would have been proper for him to have directed the plaintiffs to implead those persons as parties in the final decree proceedings before any adverse order is passed against such alienees. In that view of the matter, the finding recorded by the Trial Court that the suit for partition is not maintainable for non- joinder of necessary parties is illegal and therefore, is liable to set-aside."
56. The contention of the defendants is that subsequent purchasers during the pendency of the suit are proper and necessary parties. The principle laid down by Their Lordships in the above citation is squarely applicable to the present case in hand. Hence the suit of the plaintiff is not bad for non- joinder of necessary parties.
57. Perused the materials placed on record. Item No.61 sale deed dated 16/03/1998 land bearing Sy.No.68 147 O.S.No.7904/2000 measuring 2 acres, item No.62 sale deed dated 22/01/1990 portion of Sy.No.67 measuring 3 acres, item No.66 sale deed dated 08/05/1991 portion of Sy.No.67 measuring 3 acres and item No.68 sale deed dated 06/07/1992 portion of Sy.No.67 measuring 2 acres of Sathanur Village, Jala Hobli were executed in favour of Sunder Raju, son of defendant No.2, who is not a party to the proceedings. Hence plaintiff is not entitled to share in these properties.
58. Item Nos.42 and 43 sale deeds dated 07/10/2006 and 16/11/2006 bearing Sy.No.73, Sy.No.75/1 and Sy.No.67/P-7 were executed in favour of Kaushik, son of Sunder Raju, grandson of defendant No.2, who is not a party to the proceedings. Hence plaintiff is not entitled to share in these items. Hence I answer issue No.10 in the 'negative'.
59. Issue Nos.13 and 17:- Plaintiff, i.e., L.R. of the plaintiff has successfully established and proved that suit properties shown at 'A' and 'B' schedule properties are joint family ancestral properties of plaintiff and defendants. Plaintiff claims that suit schedule 'A' and suit schedule 'B' 148 O.S.No.7904/2000 properties are joint family properties of plaintiff and defendants. Plaintiff contends that suit schedule 'A' and 'B' properties are acquired out of the joint family funds and nucleus. Hence plaintiff is entitled to 1/3rd share in 'A' and 'B' schedule properties. Family of the plaintiff and defendants is united. The properties are acquired admittedly out of the joint family efforts, joint family labour, exertion of all the family members, the business ventures, undertakings are all out of joint family nucleus and corpus of joint family. Plaintiff is entitled to 1/3rd share in the plaint 'A' and 'B' schedule properties. Plaintiff had sought for his share in all the accretions, accumulations, estate and investments of the joint family. Hence plaintiff filed the suit for partition and separate possession. Plaintiff has proved and established that suit schedule 'A' and 'B' properties and the business, ventures, undertakings are all out of joint family nucleus and corpus. Hence plaintiff is entitled to share.
60. It is admitted fact that Subbaraju who was elder brother of deceased Akkal Raju, father of plaintiff and defendant Nos.1 and 2, had no issues. Ramakka who was 149 O.S.No.7904/2000 sister of deceased Akkal Raju, had no issues. Hence the properties standing in the name of Rammakka were also joint family properties of plaintiff and defendants, as Ramakka predeceased Akkal Raju and Subbaraju also predeceased Akkal Raju. Hence nearest relative of Ramakka was Akkal Raju. Hence properties of Ramakka are also joint family properties of the plaintiff and defendants. Deceased Akkal Raju had 3 sons, i.e., plaintiff-A.S.Narayana Raju, defendant No.1-A.S.Kupparaju and defendant No.2-A.S.Chinnaswamy Raju and two daughters, Lakshmamma who died leaving behind her legal heirs and Mangamma who is defendant No.12. Akkal Raju died in the year 1981. Hence as per notional partition, plaintiff, defendant Nos.1 and 2 and deceased Akkal Raju each entitled to 1/4th share and daughters of deceased Akkal Raju i.e., Lakshmamma and defendant No.12- Mangamma and sons of Akkal Raju, i.e., plaintiff and defendant Nos.1 and 2 each entitled to 1/5th share in 1/4th share of Akkal Raju. Hence plaintiff is entitled to 1/4th share + 1/20th share in schedule 'A' and 'B' properties except item Nos.42, 43, 61, 62, 66 and 68 of 'B' schedule 150 O.S.No.7904/2000 property and also entitled to accounts from defendants in respect of business indicated in 'A' and 'B' schedule properties. Hence I answer issue Nos.13 and 17 in the 'affirmative'.
61 . Issue No.15:- Plaintiff is directed to file separate petition for conducting enquiry under Order 20 Rule 2 of C.P.C. for mesne profits. Hence this issue is answered accordingly.
62. Issue No.16:- Plaintiff has filed suit for partition and separate possession of his legitimate share. The defendants have taken specific contention that the plaintiff had separated from the joint family on 23/01/1967. Hence suit of the plaintiff is barred by limitation and also plaintiff has earned his separate properties. The said contention of the defendants has not been proved by adducing oral and documentary evidence. Whereas plaintiff has successfully established and proved that he is in joint possession and enjoyment of the suit schedule properties along with defendants and they were residing separately for the purpose 151 O.S.No.7904/2000 of mess. Plaintiff has also established that suit schedule 'A' and 'B' properties are acquired out of the joint family funds and nucleus and investments in various firms, ventures, business and joint stock companies were made out of the joint nucleus and corpus. Defendant No.2 who examined himself as D.W.1 admitted during his course of cross- examination that defendant Nos.1 and 2 are custodians of accounts and they were managing the businesses and properties. Plaintiff has proved that the defendants had not given his legitimate share by metes and bounds. The defendants have not furnished with proper books of accounts to establish that they are in possession of the same and the admission of D.W.1 clearly goes to show that they are in possession of the books of accounts. Hence I answer issue No.16 accordingly.
63. Issue No.18:- For the reasons discussed above and in view of findings given on the above issues, I proceed to pass the following:
152 O.S.No.7904/2000
ORDER The suit of the plaintiff is hereby decreed in part.
Plaintiff is entitled to 1/4th share + 1/20th share in 'A' and 'B' schedule properties.
Defendants are directed to render accounts for the profits of 'A' and 'B' schedule properties as prayed for by the plaintiff, as plaintiff is entitled to his share as mentioned above.
A separate enquiry be held regarding mesne profits.
No order as to costs.
Draw preliminary decree.
(Dictated to the Stenographer, computerized by her, corrected and then pronounced by me in Open Court on this the 6th day of March, 2017.) (V.H. WADAR) XLIII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.153 O.S.No.7904/2000
ANNEXURE List of witness examined for the plaintiff/s:-
P.W.1 : Ravikumar S.N @ Ravikumar S.Raju List of witness examined for the defendant/s:-
D.W.1 : A.S. Chinnaswamy Raju List of documents marked for the plaintiff/s:-
Ex.P.1 : General Power of Attorney
Ex.P.2 : Certified copy of Sale Deed dated 19/08/1954 of
item No.3 in 'B' schedule property
Ex.P.3 : Certified copy of Sale Deed dated 04/12/1952 of
item No.4 in 'B' schedule property
Ex.P.4 : Certified copy of sale deed dated 13/06/1963 of
item No.5 in 'B' schedule property
Ex.P.5 : Certified copy of sale deed dated 08/05/1969 of
item No.7 in 'B' schedule property
Ex.P.6 : Assessment Extract of item No.11 in the name of
Kupparaju
Ex.P.7 : Certified copy of Assessment Extract of item
No.12 in the name of Akalaraju
Ex.P.8 : Certified copy of sale deed dated 09/03/1988 of
item No.16
Ex.P.9 : Certified copy of sale deed dated 09/03/1989 of
item No.17
Ex.P.10 : Certified copy of sale deed dated 22/03/1989 of
item No.18
Ex.P.11 : Certified copy of sale deed in respect of item
No.19
Ex.P.12 : Certified copy of sale deed dated 09/03/1989 of
item No.20
Ex.P.13 : Certified copy of sale deed dated 14/04/1967 of
item No.27
154 O.S.No.7904/2000
Ex.P.14 : Certified copy of sale deed dated 05/06/1967 of
item No.28
Ex.P.15 : Certified copy of sale deed dated 07/04/1969 of
item No.29
Ex.P.16 : Certified copy of sale deed dated 15/03/1978 of
item No.30
Ex.P.17 : Certified copy of sale deed dated 03/02/1972 of
item No.31
Ex.P.18 to : 5 RTCs in respect of item No.32, 34 and 35. Ex.P.20 Ex.P.21 : Certified copy of sale deed dated 30/08/2007 of item No.39 Ex.P.22 : Certified copy of sale deed dated 29/04/2004 of item No.40 Ex.P.23 : Certified copy of sale deed dated 11/06/2004 of item No.41 Ex.P.24 : Certified copy of sale deed dated 07/10/2006 of item No.42 Ex.P.25 Certified copy of sale deed dated 16/11/2006 of item No.43 Ex.P.26 : Certified copy of sale deed dated 12/05/1997 of item No.46 Ex.P.27 : Certified copy of sale deed dated 15/06/1996 of item No.49 Ex.P.28 : Certified copy of sale deed dated 25/05/2000 of item No.50 Ex.P.29 & : Certified copy of sale deeds dated 22/05/2004 of Ex.P.30 item No.51 and 07/09/2006 of item No.52 Ex.P.31 : Certified copy of sale deed dated 08/04/1965 of item No.53 Ex.P.32 : Certified copy of sale deed dated 16/03/1988 of item No.61 Ex.P.33 : Certified copy of sale deed dated 09/04/1970 of item No.60 Ex.P.34 : Certified copy of sale deed dated 22/01/1990 of item No.52 Ex.P.35 & : Certified copy of sale deed dated 07/07/1994 of Ex.P.36 item No.63 and 06/07/1994 of item No.64. Ex.P.37 : Certified copy of sale deed dated 13/08/1993 of 155 O.S.No.7904/2000 item No.65 Ex.P.38 to : Certified copies of sale deed dated 08/05/1991 Ex.P.40 of item No.66, sale deed dated 06/07/1992 of item No.68 and sale deed dated 02/12/1990 of item No.69.
Ex.P.41 : Certified copy of sale deed dated 13/08/1993 of item No.70.Ex.P.42 to : 3 RTCs of item No.71, 72 and 73
Ex.P.44 Ex.P.45 : Wealth Tax Assessment order dated 21/09/1990. Ex.P.46 : Lease agreement dated 13/08/1992 between Kupparaju & Brothers Charitable Foundation Trust and S.S.Technologies & Pvt. Ltd.
Ex.P.47 : Certified copy of Rectification Deed dated 05/05/2001.
Ex.P.48 : Certified copy of Trust Deed dated 15/07/1974
Ex.P.49 & : 2 certified copies of Trust Deed dated
Ex.P.50 13/01/1978 between Venkataraju, Chamaraju
and Kupparaju & Others
Ex.P.51 : Brochure of Atria holdings
Ex.P.52 : souvenir of 60th Birth Anniversary function of
Chinnaswamy Raju
Ex.P.53 : M.O.U of Access Technologies Pvt. Ltd.
Ex.P.54 : Original sale deed dated 18/11/964 executed by
Abhay @ Munishamappa in favour of
Narayanaraju
Ex.P.55 to : Two letters dated 23/05/1994, 09/11/1986 and
Ex.P.61 another two letters dated 10/10/1994 and
14/10/1988 and public notice dated 04/08/2002. Ex.P.62 : Wedding Card of Savithri D/o Narayana Raju.
Ex.P.63 & : Certified copy of Articles of Association and Ex.P.64 Memorandum of Association. Ex.P.65 & : Form No.32 for the year 1995, 1997 Ex.P.66 Ex.P.67 : Skipped
Ex.P.68 to : Certified copy of Form No.25C and two Form Ex.P.70 No.32 Ex.P.71 to : Certified copy of Annual Returns of the year 156 O.S.No.7904/2000 Ex.P.73 2002 to 2004.
Ex.P.74 & : Annual returns, Form No.32 of the year 2005.
Ex.P.75 Ex.P.76 & : Certified copy of Annual returns, Form No.32 of Ex.P.77 2006. Ex.P.78 & : Form No.20 of the year 2007, Form No.23(A) of Ex.P.79 2007.
Ex.P.80 to : Form No.29(A)(C)(A), Form NO.23(A)(C), Form Ex.P.82 No.20(B) of 2008 Ex.P.83 to : Form No.23(AC), 23(AC), 20(B) and 66 of 2009 Ex.P.86 Ex.P.87 to : Form No.32 of the year 1984, Annual report of Ex.P.91 the year 1993, Audit report, Annual General Body Meeting and Annual returns.
Ex.P.92 to : Annual returns of the year 1994, 1995 and 1996
Ex.P.97 and Annual General Body Meeting.
Ex.P.98 to : Certified copies of Annual return for the year
Ex.P.105 1997 to 2000 and General Body Meeting
Ex.P.106 to : Form No.32 in 3 nos. (of the year 2001)
Ex.P.108
Ex.P.109 to : Annual General Body Meeting and Annual returns
Ex.P.114 for the year 2002 to 2004
Ex.P.115 & : Form No.23(A) and 23(B) of the year 2005.
Ex.P.116
Ex.P.117 to : Form No.23(A), 23(B) for the year 2006 to 2009.
Ex.P.124
Ex.P.125 to : Form No.32 of the year 1996 & 2 Form No.29.
Ex.P.127
Ex.P.128 to : Form No.25, 32, 23 and Annual returns of the
Ex.P.131 year 1997
Ex.P.132 & : Annual returns of the year 1998, 1999
Ex.P.133
Ex.P.134 to : Form No.20, 32, 29, 32 of the year 2000
Ex.P.137
Ex.P.138 to : Annual returns and 2 Form No.32 of the year
Ex.P.140 2003
Ex.P.141 & : Form No.32 and Annual returns of the year 2004
Ex.P.142
Ex.P.143 to : Annual returns and Form No.36 of the year 2005
157 O.S.No.7904/2000
Ex.P.147
Ex.P.148 to : Form No.23(AC), 33, 32 and 20(B) of the year
Ex.P.150 2006
Ex.P.151 & : Form No.23(A), 20(B) of the year 2007 Ex.P.152 Ex.P.153 to : Form No.23(ACA) and 20(B) Ex.P.155 Ex.P.156 to : Form No.20(B), Audit report and Form No.(AC), Ex.P.158 23(ACA) Ex.P.159 : Annual returns of 2005 Ex.P.160 to : Form No.23(AC), Form No.20(B) for the year Ex.P.165 2007 to 2009 Ex.P.166 & : Articles of Association & Memorandum of Ex.P.167 Association from the year 1982. Ex.P.168 & : Form No.23(AC) of the year 2005, 2006 Ex.P.169 Ex.P.170 & : Annual returns of the year 2002, 2004 Ex.P.171 Ex.P.172 & : Form No.32 and Annual returns of the year 2005 Ex.P.173 Ex.P.174 & : Articles of Association & Memorandum of Ex.P.175 Association of the year 1966 Ex.P.176 & : Annual returns of the year 2004 and 2005 Ex.P.177 Ex.P.178 to : Form No.23(A) of 2007, Form No.20(B), Form Ex.P.183 No.20(B), 23(A) of 2008 & Form No.23(AC) and 20(B) of 2009 Ex.P.184 & : Certified copy of Annual General Body Meeting of Ex.P.185 M/s. Sri Ramaleela Developers Pvt. Ltd. Ex.P.186 : Certified copy of Form No.2 of 1996 Ex.P.187 : Certified copy of Annual General Body Meeting for the year 1997 Ex.P.188 to : Certified copy of Annual General Body Meeting Ex.P.191 for the year 1998, 1999, 2003 and 2004 Ex.P.192 : Certified copy of Form No.32 Ex.P.193 : Certified copy of Annual returns of 1995 Ex.P.194 : Certified copy of Articles of Association of Kayencee Hotels and Engineering Enterprises Pvt. Ltd.
158 O.S.No.7904/2000
Ex.P.195 : Certified copy of Memorandum of Association
Ex.P.196 : Certified copy of Annual returns of 1994
Ex.P.197 : Balance sheet
Ex.P.198 to : Certified copy of Balance sheet for the year Ex.P.203 1996, Annual returns for the year 1999, 2000, 2002 to 2004.
Ex.P.204 & : Certified copy of Form No.32 and Annual returns Ex.P.205 for the year 2004 Ex.P.206 to : Certified copy of Form No.23(AC) of 2005, Form Ex.P.214 No.20(B) of 2005, Form No.23(AC) and 20(B) of
2006, Form No.20(B) of 2008, Form No.23(AC) and 20(B) of 2009.
Ex.P.215 to : Certified copy of Annual returns for the year Ex.P.218 1998, 1999 and 2002-03 Ex.P.219 to : Certified copy of Annual returns of 2004-05, Ex.P.225 Annual General Body Meeting of 2005, Form
No.20(B) of 2006, 2007, and Form No.20(AC) of 2008 & 2009.
Ex.P.226 & : Articles of Association and Memorandum of
Ex.P.227 Association
Ex.P.228 : CD
Ex.P.229 : Statement of Wealth for the year ending
31/03/1986
Ex.P.230 : Certified copy of plaint in O.S.No.7629/1996
Ex.P.231 : Sale deed dated 20/12/1975
Ex.P.231(a) : Translated copy of Ex.P.231 Ex.P.232 : Encumbrance Certificate with respect to Sy.No.61/9(b), 30/4, 30/13, 30/11 and 30/1. Ex.P.233 : Partnership deed of M/s. Regal Realtors Ex.P.234 : Another Partnership deed of M/s. Regal Realtors Ex.P.235 : Copy of joint development agreement dated 15/02/2004 Ex.P.236 : Certified copy of registered release deed dated 05/01/2000 Ex.P.237 : Certified copy of release deed dated 05/01/2000 Ex.P.238 to : 8 Encumbrance certificates Ex.P.245 Ex.P.246 : Certified copy of written statement in O.S.No.7629/1996 159 O.S.No.7904/2000 Ex.P.247 : Certified copy of counter claim in O.S.No.7629/1996 Ex.P.248 : Certified copy of sale deed dated 22/04/1961 Ex.P.249 : Certified copy of trust deed dated 22/12/1984 of M/s.Kupparaju & Brothers Charitable Foundation Trust Ex.P.250 : Certified copy of sale deed dated 30/10/1982. Ex.P.251 : Certified copy of sale deed dated 24/07/2010 Ex.P.252 : Copy of ROR extract of Khatha No.180 of Thirumalarajapuram, Andhra Pradesh Ex.P.252(a) : Certified copy of ROR of Andhra Pradesh Ex.P.253 : Certified copy of adengal extract of Andhra Pradesh List of documents marked for the Defendants:-
Ex.D.1 : Certified copy of joint development agreement dated 07/08/2003 Ex.D.2 : Certified copy of supplemental agreement dated 12/05/2004 Ex.D.3 : Sale deed dated 21/11/2005 Ex.D.4 to : Certified copy of Sale deeds dated 23/07/2005, Ex.D.7 14/02/2006, 18/08/2004 and 06/07/2004.
Ex.D.8 : Certified copy of sale deed dated 05/07/2006
Ex.D.9 to : 3 certified copies of sale deed dated 03/02/2006,
Ex.D.11 19/08/2004
Ex.D.12 : Certified copy of sale deed dated 19/01/2011
Ex.D.13 : Certified copy of sale deed dated 14/01/2011
Ex.D.14 : Certified copy of Rectification Deed dated
20/01/2011
Ex.D.15 : Certified copy of sale deed dated 24/09/2011
Ex.D.16 : Certified copy of sale deed dated 16/06/2008
Ex.D.17 : Another certified copy of sale deed dated
19/01/2011
Ex.D.18 : Certified copy of Release Deed dated 10/01/2011
Ex.D.19 : Certified copy of Times of India daily news paper
dated 14/07/2010
Ex.D.19(a) : Public notice
160 O.S.No.7904/2000
Ex.D.20 to : 3 photographs
Ex.D.22
Ex.D.23 : Legal notice dated 14/07/2000
Ex.D.24 : Reply dated 14/08/2000
Ex.D.23(a) : Balance sheet of Akkalaraju Contractors and Engineers Ex.D.24(a) : Partnership deed of Mani & Co., dated 02/03/1970 Ex.D.25 : Dissolution of partnership and distribution of assets & liabilities dated 15/09/2006 of Mani & Co., Ex.D.26 : Partnership deed dated 05/12/1957 Ex.D.27 : Copy of orders of Asst. Commissioner of Wealth Taxes Ex.D.28 : Copy of orders u/S.154 of Income Tax Act. Ex.D.29 : Demand notice u/S.156 of Income Tax dated 31/10/1966 Ex.D.30 : Assessment order for the year 1966-67 Ex.D.31 : Order u/S.158 of Income Tax Act dated 31/10/1966 Ex.D.32 : Order u/S.195 of Income Tax Act dated 31/10/1966 Ex.D.33 : Demand notice U/S.30 of Wealth Tax Act Ex.D.34 : Wealth Tax assessment order for the year 1986-
87 Ex.D.35 : Income Tax assessment order dated 28/02/1973 Ex.D.36 : Income Tax assessment order dated 28/02/1973 for the year 1970-71 Ex.D.37 : General Power of Attorney Ex.D.38 : Wealth Tax assessment order for the year 1967- 68 Ex.D.39 Wealth Tax assessment order for the year 1968- 69 Ex.D.40 : Wealth Tax assessment order for the year 1969- 70 Ex.D.41 : Income Tax assessment order for the year 1967- 68 Ex.D.42 : Income Tax assessment order for the year 1968- 69 161 O.S.No.7904/2000
Ex.D.43 : Letter and statement of net wealth dated 29/04/1995 in respect of A.S. Kupparaju. Ex.D.44 : Letter and statement of net wealth dated 29/04/1995 in respect of A.S. Kupparaju for the year 1991-92 Ex.D.45 : Letter and statement of net wealth dated 29/04/1995 in respect of A.S. Kupparaju for the year 1992-93 Ex.D.46 : Wealth tax assessment order pertaining to A.S. Chinnaswamyraju for the year 1984-85 dated 04/12/1987.
Ex.D.47 : Memorandum of oral family arrangements drawn on 17/11/1996 Ex.D.48 : Assessment order (V.H. WADAR) XLIII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.