Bangalore District Court
Mr. Gnaneshwar Rao C.S vs Sri. C.S Nageshwar Rao on 24 January, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 24th day of January, 2020.
O.S.No.26709/2012
Plaintiff: Mr. Gnaneshwar Rao C.S,
Aged about 58 years,
S/o Late C.S Srinivasa Rao,
R/at No.36, 2nd Main,
Chinnappa Garden,
Bensontown Post,
Bangalore560046.
[By Sri. V. ManjunathAdv.]
V/s
2 OS No. 26709/2012
Defendants: 1. Sri. C.S Nageshwar Rao,
Aged about 56 years,
S/o Late C.S. Srinivasa Rao,
R/at No.2, MEG Officers Colony,
Jaibharathnagar, (MS Nagar),
Bangalore 560033.
2. Smt. P.B Dhanalakshmi,
D/o Late C.S Srinivasa Rao,
W/o P.B. Babu Rao,
Aged about 52 years,
R/at No.205, Narayanapillai Street,
Bangalore560001.
3. Sri. C.S Suryakanth Rao,
S/o Late C.S Srinivasa Rao,
Aged about 49 years,
R/at No.102, 7th Cross,
William's Town Extension,
Bensontown,
Bangalore560046.
4. Sri. C.S. Chandrakanth,
S/o Late C.S Srinivasa Rao,
Aged about 49 years,
R/at No.10/23,
6th Cross, Jeevana Halli,
Bangalore560005.
[By Sri.B. J. Janardhana Reddy
Advocate)
3 OS No. 26709/2012
Date of Institution of the suit
31.08.2012
Nature of the (Suit or pronote,
suit for declaration and
possession, suit for injunction, Partition Suit
etc.)
Date of the commencement of
recording of the Evidence. 20.06.2016
Date on which the Judgment
was pronounced. 24.01.2020
Year/s Month/s Day/s
Total duration 07 04 23
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
4 OS No. 26709/2012
JUDGMENT
This suit is filed by the Plaintiff against the Defendants, claiming Partition in the Suit Schedule A to F Properties, by metes and bounds and to put him and the Defendant Nos.2 to 4 in respective separate possession of their 1/4th legitimate share, in the Suit Schedule A to F properties.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, he and the Defendants are the brothers and sister, being children of Late C S Srinivasa Rao and Late Smt. Lalitha Bai. Suit Schedule A and B properties were acquired by C.S Srinivasa Rao, out of his own income. Suit Schedule C to E Properties were acquired by Smt. Lalitha Bai, out of her own income. Suit Schedule F property is acquired by him, his parentsC.S Srinivasa Rao and Lalitha Bai and his brothers the Defendant Nos.1, 3 and 4, out of their individual income.5 OS No. 26709/2012
The Plaintiff was suffering from speech disorder, due to split in lips and had undergone operation, so he is not having clear speech. The Defendant No.1 was, one of indifferent in nature. So the affairs of the properties were being looked after by the Defendant Nos.3 and 4. At the request of the Defendant Nos.3 and 4, the Plaintiff had to sign on certain documents, as he was given to an understanding that, his signatures are required inorder to get the properties transferred into the names of the Plaintiff and the Defendants, by getting deleted the names of his parents. Subsequently, Plaintiff demanded Partition of the entire Suit Schedule Properties with other Defendants, for which the Defendant Nos.3 and 4 projected that, their parents had left a Will behind them, but they have neglected to show the said Will to the Plaintiff. After much pursuation and demand for Partition by the Plaintiff, the Defendant Nos.3 and 4 agreed to Partition the Suit Schedule Properties and made the Plaintiff and other Defendants to believe that, the Partition would even, be given, inrespect of 6 OS No. 26709/2012 schedule A to E properties, as per the alleged Will of the parents and more extent of land would be given to the Plaintiff, Defendant No.1 and Defendant No.2 in ScheduleF property, inorder to compensate unequal Partition in Schedule A to E properties. Accordingly, on 25.03.2006, a Partition Deed was executed and the properties were divided as per the said Deed. However, the said Partition Deed was not acted over.
The Plaintiff persuaded his demand for Partition in Suit Schedule FProperty, which was dodged by the Defendant Nos.3 and 4, on one or the other pretext.
In the year 2011, Plaintiff came to know through one of his sons that Suit Schedule FProperty was got transferred in the name of Defendant Nos.3 and 4, on further verification he came to know that Defendant Nos.3 and 4 had infact got executed Deed of Release on 14.05.1999, showing the Plaintiff and the 1 st Defendant as Executants. Infact, the said Release 7 OS No. 26709/2012 Deed was never executed and signed by the Plaintiff, as the Plaintiff had no intention to release his rights over the said property. The Plaintiff came to know about the mischief and fraud played upon him by the Defendant Nos.3 and 4. The alleged Release Deed dtd.14.05.1999 and the Partition Deed dtd.25.03.2006 are sham documents, got executed by using undue influence, misrepresentation and fraud, by the Defendant Nos.3 and 4. Hence, the said documents are not valid in the eye of Law and are not binding on the Plaintiff. Hence, Plaintiff claims re opening of the Partition and to effect fresh Partition.
The said intention of having Partition was expressed by the Plaintiff to the Defendant Nos.3 and 4, but they have refused to do the same.
It is further contended that, during the lifetime of his parents, the Defendant No.1 Mr. Nageswara Rao was given two properties and also he was given Rs.1,00,000/ separately during the time of alleged 8 OS No. 26709/2012 Partition dtd.25.03.2006, therefore the 1 st Defendant is not entitle for any share in the Suit Schedule Properties and only the Plaintiff and the Defendant Nos.2 to 4 are entitled to have 1/4th share each in the Suit Schedule Property. Hence, Plaintiff is constrained to file the present suit.
3. Suit Summon were issued to the Defendants. Defendant No.1 and Defendant Nos.2 to 4 have appeared through their respective Counsels on 27.11.2012. The Defendant Nos.2 to 4 have filed their Written Statement seeking permission on 27.02.2013. Defendant No.1 has filed his Written Statement on 19.07.2013.
The Defendant No.1 has filed his Written Statement on 19.07.2013, admitting the relationship and the acquisition of the properties, as pleaded by the Plaintiff in the Suit Plaint, but further contends that he has contributed his mite for acquiring and maintaining the Suit Schedule Properties, which 9 OS No. 26709/2012 belong to the said Joint Hindu Family of late C.S.Srinivasa Rao, which was in joint Possession of the Plaintiff, Defendant Nos.1, 2 and 4. It is further contended that, his other brothers were wordlywise and he was used for the routine work by them and he was dominated by his brothers, even during the lifetime of his parents, which has forced to him to act at the instance of his brothers. It is further contended that, his parents have executed the Will referred to in Para No.6 of the Suit Plaint and the contrary allegations are denied by him. Further he contended that a Partition Deed was executed on 25.03.2006, inrespect of the Suit Schedule Properties and the same has been acted over.
And further it is contended that he and the Plaintiff has executed a Release Deed on 14.05.1999, the Plaintiff after knowing the contents of the Release Deed has executed it voluntarily. Now the Plaintiff has taken a U turn and contended that the said Release Deed and Partition Deed has not been executed by him, voluntarily and the same is an 10 OS No. 26709/2012 outcome of fraud. Thus, prays to dismiss the suit of the Plaintiff.
4. The Defendant Nos.2 to 4 have filed their Written Statement on 27.02.2013, wherein the Defendant Nos.2 to 4 have admitted the relationship of the Plaintiff and the Defendants with that of their parents C. S.Srinivasa Rao and Smt. Lalitha Bai. Further the said Defendants have admitted that Suit Schedule A & B Properties have been acquired by their father out of his own earnings; Suit Schedule C to E Properties have been acquired by their mother out of her own earnings and Suit Schedule FProperty have been acquired by their parents, the Plaintiff and the Defendant Nos.1, 3 and 4.
It is further contended that, C.S.Srinivas Rao and Smt. Lalitha Bai had bequeathed their 1/6th share respectively, inrespect of Suit Schedule F Property infavour of the Defendant Nos.3 and 4 by virtue of Wills dtd.30.03.1994 and 11.02.1995, respectively, and the said Wills have been attested by 11 OS No. 26709/2012 the Plaintiff and the Defendant No.1, as the witnesses. In conformity with the Wills executed by their parents, family settlement was arrived inbetween the Plaintiff and the Defendants, wherein the Plaintiff and Defendant No.1 have relinquished their 1/6th undivided share in the Suit Schedule F Properties. Following the same, the Defendant No.4 has executed a Gift Deed inrespect of his half undivided share measuring 3Acres 02Guntas, infavour of his wife Radha Bai, by virtue of Registered Partition Deed dtd.01.03.2000. Thereafter, the Defendant No.3 and Smt. Radha Bai got the Suit Schedule FProperties converted from agricultural use to nonagricultural use by virtue of Conversion Order bearing No. ALN/EBB/SR/28/201112 dtd.27.11.2011. And after the said conversion they have got Partitioned the said property inbetween them, by virtue of Registered Partition Deed dtd.15.11.2011, wherein Property bearing No.1188, carved out in Sy.No.19/2, measuring 0.08Guntas ad measuring 8712Sq.feet 12 OS No. 26709/2012 and property bearing No.1188, carved out in Sy.No.29/5, measuring 01Acre 08Guntas ad measuring 52272Sq.feet has fallen to the share of the Defendant No.3 and Property bearing No.1188, carved out in Sy.No.19/2, measuring 1.08Guntas and property measuring 132858.5Sq.feet has fallen to the share of Smt. Radha Bai. The said Radha Bai has gifted the said property to her husbandthe Defendant No.4 by virtue of Gift Deed dtd.09.01.2012.
Further it is contended that, an area measuring
01.Acre 19Guntas out of Sy.No.29/1 was forfeited by the Government U/Sec. 79(A) (B) of the Karnataka Land Reforms Act, by the Assistant Commissioner, Bengaluru, which came to be challenged by the Defendant No.3 before the KAT Bengaluru, which is yet pending for its adjudication. Under such circumstances, the present suit inrespect of the said property is not maintainable and however, the said land absolutely belongs to Defendant No.3.
13 OS No. 26709/2012After conversion of the Suit Schedule F Properties, the same were developed by the Defendant No.4 and he is running a Small Scale Industry/Mineral Water Plant by borrowing huge Bank loan and by investing an amount more than Rs.2,50,00,000/. The Defendant Nos.3 and 4 and Radha Bai are the absolute owners of the said property.
The Partition Deed dtd.27.03.2006 executed between the parties, have been executed with their own volition and consent, so the same cannot be reopened on any ground. The Plaintiff and the Defendant No.1 have released their rights infavour of Defendant Nos.3 and 4, by virtue of Release Deed dtd.14.05.1999 and now after an yawning period of six years, the present suit is filed by the Plaintiff contending that, both the documents are the outcome of fraud, is untenable. The Plaintiff has not come to the Court with clean hands. He has suppressed the 14 OS No. 26709/2012 material facts, there is no need to reopen the Partition already taken place inbetween the parties.
Hence prayed to dismiss the suit of the Plaintiff.
5. On the basis of the above said pleadings my learned predecessor in office has framed the following issues on 23.04.2015:
:ISSUES:
1. Whether the Plaintiff proves that, the father of the Plaintiff and the Defendants have acquired Suit Schedule 'A' and 'B' property out of his own earning and the mother of the Plaintiff and the Defendant has acquired Suit Schedule 'C', 'D' and 'E' property, out of his own income, as pleaded in the plaint?
2. Whether the Plaintiff proves that, father and mother of the Plaintiff out of their own income had purchased the agricultural immovable property, as pleaded in para No.4 of the plaint ?15 OS No. 26709/2012
3. Whether the Defendant No.1 proves that, the Plaintiff has executed the release deed infavour of the Defendant on 14.05.1999?
4. Whether the Defendant No.1 proves that, the suit is barred by limitation?5. Whether the Defendant Nos.2 to 4
proves that, the Plaintiff is seeking the reopen of the Partition of the suit schedule property, as pleaded in para No.27 of the Written Statement?
6. Whether the Plaintiff proves that, he is having 1/4th share in the Suit Schedule 'A' to 'F' property?
7. Whether the Plaintiff proves that, he is entitled for the relief claimed in the suit?
8. What order or decree?
16 OS No. 26709/20126. Since issue No.5 is not happily worded, the said issue is required to be reframed and recasted as under;
Recasted Issue No.5: Whether the Plaintiff is entitle for the relief of reopening of Partition inrespect of the Suit Schedule Property, as contended by him in the Suit Plaint?
Since the evidence led by the parties deal with the above issue, so the parties have not been called for, to lead further evidence on the said issue.
7. The Plaintiff inorder to prove his case, got himself examined as PW1. But has not got marked any documents on his behalf. PW1 was cross examined on behalf of the Defendants on 30.07.2018 and 13.12.2018. Ex.D.1 to Ex.D.5 were marked on confrontation to PW.1.
Per contra, the Defendant No.1 got himself examined as DW1 and got marked his signatures in Ex.D.4 and Ex.D.5 as Ex.D.4(c) and Ex.D.5(c), 17 OS No. 26709/2012 respectively. DW.1 was cross examined on behalf of the Plaintiff on 19.10.2019 and 12.07.2019.
The Defendant Nos.2 to 4 got examined Defendant No.3 as DW.2 and got marked 12 documents as Ex.D.6 to Ex.D.17. DW2 was cross examined on behalf of the Plaintiff on 20.09.2019.
8. Heard the Arguments of the Learned Counsels representing the Plaintiff and the Defendants, respectively. The Learned Counsel for the Defendant Nos.1 to 4 have filed written arguments on 02.01.2020 and has placed his reliance on the decision of the Hon'ble Apex Court, in the case of Rathnam Chettiyar & Others V/s S.M. Kuppuswamy Chettiyar & Others, reported in AIR 1976 (SC) Page 1. I have carefully gone through the written arguments furnished on behalf of the Defendant Nos.1 to 4 and the decision of the Hon'ble Apex Court.
18 OS No. 26709/20129. My findings on the above said issues are as under:
Issue No.1: In the Affirmative; Issue No.2: Partly in the Affirmative; Issue No.3: In the Affirmative; Issue No.4: In the Affirmative; Recasted Issue No.5: In the Negative; Issue No.6: In the Negative;
Issue No.7: In the Negative;
Issue No.8: As per final orders, for the following;
:R E A S O N S:
10. ISSUE Nos.1 AND 2:
Since both these issues are interlinked with each other, so they have been taken for common discussion, inorder to avoid repetition, confusion and to have brevity in the discussion.The Plaintiff has contended in Para Nos.2 and 3
of the Suit Plaint that, Schedule A & B Properties have been acquired by his father Sri. C.S.Srinivas Rao, out of his own income as well as Suit Schedule C to E 19 OS No. 26709/2012 Properties have been acquired by his mother Smt. Lalitha Bai, out of her own income.
The Defendant No.1 has contended in Para No.2 of his Written Statement that, he has no any dispute withregard to the contentions taken up by the Plaintiff in Para Nos.2 and 3 of the Suit Plaint.
The Defendant Nos.2 to 4 have contended in Para Nos.5 & 6 of their Written Statement that, their father Sri. C.S.Srinivas Rao, has acquired Suit Schedule A & B Properties, out of his own income as well as Suit Schedule C to E Properties have been acquired by their mother Smt. Lalitha Bai, out of her own income.
Coming to the ocular evidence more specifically cross examination of DW.1 at Page No.11, Para Nos.3 and 4, and Page No.12, Para No.2, which read as under;
"It is true to suggest that Suit Schedule A and B Properties are the self acquired properties of my father.
It is false to suggest that Suit Schedule C, D and E Properties are the 20 OS No. 26709/2012 self acquired properties of my mother.
Witness volunteers that these 3 properties have been purchased by my father in the name of my mother. Further volunteers that Suit Schedule C, D and E Properties are the self acquired properties of his father. It is true to suggest that all the revenue records pertaining to the Suit Schedule C, D and E Properties were standing in the name of my mother".
"Suit Schedule FProperty was purchased jointly in the name of my father, my mother, the Plaintiff, myself, the Defendant Nos.3 and 4. the said property was purchased on 31.10.1988. It is false to suggest that as on the date of purchase of Suit Schedule FProperty, my father alone was earning and we the brothers and my mother were not the earning hands. Witness volunteers that we the brothers were helping our father in conducting the liquor business. It is true to suggest that due to the love and affection, over the children and his wife, my father has purchased Suit Schedule FProperty in his name including the name of my mother and we the children".21 OS No. 26709/2012
As per this evidence, the Defendant No.1 admits that, Suit Schedule A & B Properties are the self acquired properties of his father, but denies that Suit Schedule C to E Properties are the selfacquired properties of his mother. Defendant No.1/DW.1 further contends that, Suit Schedule C to E Properties are the selfacquired properties of his father, but the same are standing in the name of his mother.
Further Defendant No.1/DW.1 contends that, Suit Schedule FProperty was purchased jointly in the name of his father, his mother, himself, the Plaintiff and the Defendant Nos.3 and 4. The said property was purchased on 31.10.1988. As on the date of purchase, his father alone was earning hand in his family, but the Plaintiff, himself and the Defendant Nos.3 and 4 were helping him in his business. Out of love and affection, his father has purchased the Suit Schedule FProperty in his name as well as in the name of his wife and malechildrenPlaintiff and Defendant Nos.1,3 and 4.
22 OS No. 26709/2012Further as per the cross examination of DW.2 at Page No.15, Para No.1, Line Nos1 and 2, which reads as under;
"It is true to suggest that all the Suit Schedule Properties have been acquired by my father".
As per this evidence, the Defendant No.3 has admitted that, the Suit Schedule Properties have been acquired by his father.
Though, the Defendant No.1 has contended that, he has contributed his mite for acquiring and maintaining the properties belonging to the joint family headed by his father Sri. C.S.Srinivas Rao, but he has not produced any document to that effect. So also, the Defendant No.1 has admitted that his father has purchased Suit Schedule FProperty when he was earning alone, with the support of the Plaintiff, himself and the Defendant Nos.3 and 4.
Thus, it is not in dispute that the father of the Plaintiff and the Defendants Sri. C.S.Srinivas Rao, has acquired Suit Schedule A & B Properties, out of 23 OS No. 26709/2012 his own income and their mother Smt. Lalitha Bai has acquired Suit Schedule C to E Properties, out of her own income.
Further Suit Schedule FProperty is purchased by the father on 31.10.1988 with the assistance of the Plaintiff, the Defendant No.1 and the Defendant Nos.3 and 4. So the said property will not become the selfacquired property of the father of the Plaintiff and the Defendants.
Hence, I answer ISSUE NO.1 IN THE AFFIRMATIVE AND ISSUE NO.2 PARTLY IN THE AFFIRMATIVE.
11. ISSUE Nos.3 AND 5;
Since both these issues are interlinked with each other, so they have taken for common discussion, inorder to avoid repetition, confusion and to have brevity in the discussion.
Before adverting to the discussion on these Issues, it is necessary to keep the events with dates 24 OS No. 26709/2012 pertaining to the parties to the case, in the background.
Events and Dates:
1. Suit Schedule FProperty purchased as per Ex.D.2 on 31.10.1988;
2. C.S.Srinivas Rao, the father of the Plaintiff and the Defendants said to have written the Will, as per Ex.D.4 on 30.03.1994;
3. C.S.Srinivas Raothe father of the Plaintiff and the Defendants, died on 19.12.1994;
4. Smt. Lalitha Bai, the mother of the Plaintiff and the Defendants said to have written the Will, as per Ex.D.5 on 11.02.1995;
5. Smt. Lalitha Bai, the mother of the Plaintiff and the Defendants, died on 27.11.1996;
6. Release Deed said to have been executed by Plaintiff and Defendant 25 OS No. 26709/2012 No.1 infavour of Defendant Nos.3 and 4 as per Ex.D.3, on 14.05.1999;
7. Gift Deed is executed by Defendant No.4 infavour of his wife Radha Bai on 01.03.2000;
8. Partition said to have been taken place inbetween the Plaintiff and the Defendants, as per Ex.D.1 on 25.03.2006;
9. Conversion of agricultural lands in Suit Schedule FProperties for its non agricultural use as per Ex.D.13 on 27.07.2011;
10. Partition inbetween Defendant No.3 and Radha Bai inrespect of Suit Schedule F Property as per Ex.D.14 on 15.12.2011;
11. Gift Deed executed by Radha Bai infavour of her husbandthe Defendant No.4 inrespect of portion of Suit Schedule FProperty, as per Ex.D.16 on 09.01.2012;
12. Rectification to the Partition Deed as per Ex.D.15 on 16.01.2012;
26 OS No. 26709/201213. Rectification of Gift Deed executed by Radha Bai as per Ex.D.17 on 16.01.2012;
14. Present suit is filed by the Plaintiff on 31.08.2012;
15. Order passed by the KAT as per Ex.D.12 on 17.08.2016.
The Plaintiff contends that, since he was suffering from speech disorder due to split in lips and the Defendant No.1 was of indifferent in nature, the affairs of the the family and Suit Schedule Properties were lookedafter and controlled by the Defendant Nos.3 and 4. The said Defendant Nos.3 and 4 played fraud upon the Plaintiff and got executed certain documents, projecting to have Partition in the Suit Schedule Properties and assuring that Plaintiff, Defendant Nos.1 and 2 will be given more share in the Suit Schedule FProperties. On demand of Partition by the Plaintiff, the Defendant Nos.3 and 4 canvased that, their parents have executed respective Wills. Further contended that, though there was a 27 OS No. 26709/2012 Partition inbetween the Plaintiff and the Defendants on 25.03.2006, by virtue of Partition Deed, but it was not acted over.
The Defendant No.1 contends that, after the death of the parents, he and the Plaintiff have executed a Release Deed as per Ex.D.3 infavour of the Defendant Nos.3 and 4 as an equity for unequal distribution. His parents have executed the respective Wills bequeathing the Suit Schedule FProperties infavour of the Defendant Nos.3 and 4. Partition has taken place in the family, as per Partition Deed dtd.25.03.2006.
The Defendant Nos.2 to 4 contends that, the Plaintiff and the Defendant No.1 being the elder members of their family have relinquished their 1/6th share in Suit Schedule FProperties infavour of Defendant Nos.3 and 4. On the basis of the said Release Deed, the Defendant No.4 has executed a Gift Deed infavour of his wife Radha Bai on 01.03.2000, bequeathing his half share in the Suit Schedule F Properties. Thereafter, said Radha Bai and 28 OS No. 26709/2012 Defendant No.3 got converted Suit Schedule F Properties from agricultural lands to its non agricultural use. After conversion, they both got Partitioned the said Suit Schedule FProperties on 15.02.2011. Thereafter, Smt. Radha Bai bequeathed portion of her property in Suit Schedule FProperties to her husband by virtue of Gift Deed dtd.09.01.2012. Partition Deed entered inbetween Radha Bai and Defendant No.3 was got rectified on 16.01.2012 and the Gift Deed executed by Radha Bai infavour of her husband the Defendant No.4 was got rectified on 16.01.2012. The Defendant Nos.3 and 4 and Radha Bai have installed a Small Scale Industry/Mineral Water Plant and they are managing the said business jointly. An area measuring 01Acre 19Guntas out of Sy.No.29/1 was forfeited by the Assistant Commissioner, Bengaluru, U/Sec. 79(A)(B) of the K.L.R.Act , against which an appeal was preferred before the KAT, as per Ex.D.12 by the Defendant Nos.3 and 4.
29 OS No. 26709/2012Further the Defendant Nos.3 and 4 contends that, Release Deed executed by the Plaintiff and the Defendant No.1 in their favour and the Partition Deed executed by the Plaintiff and all the other Defendants, were out of their respective volitions and the said documents are not an outcome of a fraud,undue influence, misrepresentation etc. Already Partition has taken place inbetween the family as per Partition Deed dtd.25.03.2006, wherein the Plaintiff was given major share, by giving Suit Schedule DProperty and the license of running shop, under the name Lalitha Wine Shop.
12. Now let us analyze the said facts one by one.
a) Withregard to health condition and qualification of the Plaintiff;
Coming to the ocular evidence on this Point, more specifically in the cross examination of PW.1, at Page No.11, Line Nos.5 to 9, which reads as under;
30 OS No. 26709/2012"......It is true to suggest that, I have been taking care of my family from the income of the above business and rental. It is true that it includes taking care of education of my children and performing marriage of my children. It is true to suggest that I am mentally fit .....".
As per this evidence, Plaintiff contends that he is taking care of his family and education of his children, from the income derived by him from the business and rental income. He has also performed the marriage of his children. More importantly he admits that he is mentally fit.
As per the cross examination of PW.1, at Page No.12, Para No.1, Line Nos.3 to 6, which reads as under;
".......It is true to suggest that I am married. I have four children. I have two sons and two daughters. They have completed their education and they have been married."31 OS No. 26709/2012
As per this evidence, the Plaintiff admits that he is married, having four children, two sons and two daughters and he has completed their education and performed their marriage.
Further, as per the cross examination of DW.1, at Page No.8, Para No.4, which reads as under;
"It is true to suggest that my brother - the Plaintiff is born with a disability to his lips, due to the same, there is absence of clear audible speech conversation from him. It is false to suggest that due the said disability Plaintiff could not continue his education. Witness volunteers that he is the only graduate person amongst our brothers.
As per this evidence, Defendant No.1/DW.1 admits that, his brother the Plaintiff was born with disability to his lips, due to the same, there is absence of clear audible speech conversation from him. But denies that due to the said disability, the Plaintiff would not continue his education. Defendant No.1 contends that he is the only graduate person amongst his brothers.32 OS No. 26709/2012
As per the cross examination of DW.2, at Page No.16, Para No.3, (Question and answer form) and Para No.4, which read as under;
"Que: Plaintiff is possessing oral deformity and he is facing difficulty in speaking, is'nt it?
Ans: He can speak and his speech is understandable.
It is true to suggest that Plaintiff was looking after we all, his siblings, well after the death of our parents."
As per these evidence, Defendant No.3 denies that the Plaintiff is possessing oral deformity and facing difficulty in speaking. Further the Defendant No.3 admits to the suggestion made to him from the Plaintiff that, the Plaintiff was looking after all his siblings well, after the death of his parents.
Thus, as per the above oral evidence, it can be said that though the Plaintiff is having some deformity but such deformity will not form any 33 OS No. 26709/2012 disability to perform his day today activities, as contended by the Plaintiff.
Inrespect of qualification of the Plaintiff, as per ocular evidence more specifically, cross examination of PW.1, at Page No.11, Line Nos.19 to 22, which reads as under;
"......I have studied B.Com., My brother 1st Defendant has studied B.Sc., and third Defendant might have studied SSLC., fourth Defendant has also studied SSLC.....".
As per this evidence, Plaintiff admits that, he has studied upto B.Com., and his brother 1 st Defendant has studied upto B.Sc., and other brothers Defendant Nos.3 and 4 might have studied upto SSLC.
On the basis of above ocular evidence, it can be concluded that, Plaintiff is an educated person, carrying on his business and other worldly activities and his suffering of speech disorder, has not formed any disability in performing his day to day activities.
34 OS No. 26709/2012b) Situation prevailing in the family:
Admittedly, C.S.Srinivasa Rao died on 19.12.1994 and his wife Smt. Lalitha Bai died on 27.11.1996.
Coming to the ocular evidence on this point more specifically cross examination of PW.1, Page No.11, Line Nos.22 to Page No.12, Line No.3, which read as under;
"......It is true to suggest that I am the eldest in age among all brothers. It is true to suggest that, when my father passed away third Defendant was 29years old and fourth Defendant was 27years old. It is true to suggest that, after passing away of our father, the 1st Defendant and myself were looking after all the affairs of the family of business and properties......".
As per this evidence, Plaintiff admits that he is the eldest son, amongst his brothers. At the time of death of his father, Defendant No.3 was aged about 29years and Defendant No.4 was aged about 27 years. Further Plaintiff admits that, after the death of 35 OS No. 26709/2012 his father, he and the Defendant No.1 were looking after all the affairs of the family, of the business and of the properties.
Further as per the cross examination of DW.1, Page No.8, Para No.5, Page No.9, Para No.4, Page No.9, Para No.5 and Page No.10, Para No.2, which read as under;
"During the life time of my father, he was looking after all the financial and other affairs of our family. After the death of my father, my mother was looking after all the said financial and other affairs of our family. My mother died on 27.11.1996."
Page No.9, Para No.4:
"Till the death of my mother we all the Defendants and Plaintiff were residing jointly in one single house. Immediately after two years from the day of death of my mother, we all brothers got severed. After getting severed we all the brothers started residing, messing separately with our respective family units. Around 1998, we brother got severed from each other."36 OS No. 26709/2012
Page No.9, Para No.5:
"In the year 1998, Plaintiff, the Defendant No.3 and Defendant No.4 were given 3 different liquor shop business with investment and with capital. Such type of arrangement was done with the consent of all the family members."
Page No.10, Para No.2:
"From 1998 till 25.03.2006, as per the oral arrangements, each of the brothers including myself were looking after the affairs of the businesses allotted to us as per the joint consent of all the family members. In the year 1998 our family was having only 3 liquor shops and my father was holding licence of the said 3 liquor shops, in business. I have not taken any share in the said 3 liquor shops business, in the year 1998, since I was running an independent liquor business, receiving liquor from the wholesaler and selling the same. Witness volunteers that when his father was admitted in a Lake side hospital Ulsoor, he called him (DW1) and told him that he is having 3 liquor shops, but having 4 sons. Further instructed to give 3 shops to 3 brothers 37 OS No. 26709/2012 and to conduct separate business of his (DW1) own. It is true to suggest that I have not pleaded the above said facts in my written statement."
As per these evidence, Defendant No.1 contends that, during the lifetime of his father, he was looking after all the financial and other affairs of their family. After the death of his father, his mother was looking after all the said financial and other affairs of their family. His mother died on 27.11.1996.
Defendant No.1 further contends that, till the death of his mother, all the brothers were residing jointly in one single house, immediately after two years of the death of their mother, all the brothers got severed and started residing and messing separately with their respective family units, i.e., around 1998.
Further Defendant No.1 contends that, in 1998 the Plaintiff, Defendant No.3 and Defendant No.4 were given three liquor shop business with investment and capital. Such arrangement was done with the consent of all the family members.
38 OS No. 26709/2012Defendant No.1 further contends that, from 1998 to 25.03.2006 each of the brothers including him were looking after the affairs of the business allotted to them, as per the oral arrangements made with the joint consent of all the family members. In 1998, their family was holding three liquor shops with license. Further he contends that, he has not taken any share in three liquor shops, since he was running an independent liquor business, out of his own funds. Further Defendant No.1 contends that, when his father was admitted in the Lakeside Hospital, Ulsoor, he had called him and told him that, he is having three liquor shops, but four sons and further instructed him to give three shops to his brothers and to conduct a separate business. But Defendant No.1 admits that, he has not pleaded the said facts in his Written Statement.
Thus, as per this above ocular evidence, it can be said that, during the lifetime of father of the Plaintiff and the Defendants, all the affairs were looked after by the Defendant No.1 under the 39 OS No. 26709/2012 guidance of his father, after the death of his father all the affairs were managed by their mother and after the death of the mother, all the four brothers got seveared and started residing and messing separately, by doing independent business, as per the oral arrangements.
c) With regard to writing of the Will by the father:
The Plaintiff denied execution of the Will by his father in the Suit Plaint.
The Defendant No.1 has contended in his Written Statement that, his father has executed a Will.
The Defendant Nos.2 to 4 have contended in their Written Statement that, their father has executed a Will bequeathing 1/6th share in the Suit Schedule FProperties infavour of Defendant No.3 and 4, for which the Plaintiff and the Defendant No.1 have attested, as the attesting witness.40 OS No. 26709/2012
During the course of cross examination of the Plaintiff, Will Deed dtd.30.03.1994 came to be marked on confrontation as Ex.D.4. And the signature of the Plaintiff, on confrontation came to be marked as Ex.D.4(A). And further the signature of the father of the Plaintiff, on confrontation came to be marked as Ex.D.4(B).
Coming to the ocular evidence on this point, more specifically cross examination of PW.1, at Page No.16, Para No.4, which reads as under;
"Now original document styled Will deed dt. 30.03.1994 is shown to the witness and questioned him, the signature seen at Sl.No.1, on the 4th page of the said document, is it yours? Witness replies "Yes". On admission of the said signature on the said document on confrontation the said document is marked as Ex.D4 and signature of the witness is marked as Ex.D4(A). Further on showing the said document witness is asked whether you can identify the signature of your father? Witness identifies the signature 41 OS No. 26709/2012 of his father, the same is marked as Ex.D4(B)."
As per this evidence, Plaintiff admits his signature on Ex.D.4Will, as attesting witness as Ex.D.4(A) and the signature of his father as executor, as Ex.D.4(B).
Further as per the oral evidence more specifically, examination in chief of DW.1, at Page No.6, Para No.3, which reads as under:
"Now I see the original deed of release executed by me and my brother, which is already marked as Ex.D3, on its confrontation to PW1. It bears my signature. Signature of the witness is marked as Ex.D4(C). It bears 6 signatures of my father. I can identify the signatures of my father on this document, as I have seen him signing. Out of the said signature already one signature on the 1st page is marked as Ex.D4(B)."
As per this evidence, Defendant No.1 admits his signature on Ex.D.4Will, which is marked as Ex.D.4(C) and the Defendant No.1 admits the 42 OS No. 26709/2012 signature of his father on Ex.D.4 out of which one signature, which is already marked as Ex.D.4(B).
d) With regard to writing of the Will by the father:
The Plaintiff denied execution of the Will by his mother in the Suit Plaint.
The Defendant No.1 has contended in his Written Statement that, his mother has executed a Will.
The Defendant Nos.2 to 4 have contended in their Written Statement that, their mother has executed a Will bequeathing 1/6th share in the Suit Schedule FProperties infavour of Defendant No.3 and 4, for which the Plaintiff and the Defendant No.1 have attested, as the attesting witness.
During the course of cross examination of the Plaintiff, Will Deed dtd.11.02.1995 came to be marked on confrontation as Ex.D.5. And the signature of the Plaintiff, on confrontation came to be marked as 43 OS No. 26709/2012 Ex.D.5(A). And further the signature of the father of the Plaintiff, on confrontation came to be marked as Ex.D.5(B).
Coming to the ocular evidence on this point, more specifically cross examination of PW.1, at Page No.17, Para No.2, which reads as under;
"Now original document styled as Will deed dt. 11.02.1995 is shown to the witness and questioned him, the signature seen at page No.1, is it your mother's signature? Witness replies "Yes". On admission of the said signature on the said document on confrontation the said document is marked as Ex.D5 and signature of the witness is marked as Ex.D5(A). Now I see my signature on the said document, the same is marked as Ex.D5(B)."
As per this evidence, Plaintiff admits his signature on Ex.D.5Will as attesting witness as Ex.D.5(A) and the signature of his father as executor, as Ex.D.5(B).
44 OS No. 26709/2012Further as per the oral evidence more specifically, examination in chief of DW.1, at Page No.6, Para No.4, which reads as under:
"Now I see the Will executed by my mother, which is already marked as Ex.D5, on its confrontation to PW1. It bears 5 signatures of my mother. Out of which one is already marked as Ex.D5(A). I have signed as attesting witness to the said document. Now I see my signature on the said document. The same is marked as Ex.D5(C)."
As per this evidence, Defendant No.1 admits his signature on Ex.D.5Will, which is marked as Ex.D.5(C) and the Defendant No.1 admits the signature of his father on Ex.D.5, out of which one signature, which is already marked as Ex.D.5(B).
Though, the Plaintiff has denied the execution of Will by his parents in the Suit Plaint, but he has admitted the same in his cross examination and the said Will Deeds have been marked on his confrontation as Ex.D.4 and Ex.D.5.
45 OS No. 26709/2012The said Wills are to be proved by the Defendant Nos.3 and 4, who are the beneficiaries under it. The Defendant Nos.3 and 4 have to satisfy the five steps "Pancha Padi" as per the guiding principles laid down by the Hon'ble High Court of Karnataka; in the case of Sri. J.T.Surappa & Another V/s Sri. Satchidhanandenra ....., reported in ILR 2008 Kar. 2115;
Pancha Padi
1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witnesses is examined to prove the Will.
In this particular case, the Plaintiff himself has admitted the signature of his father and mother on Ex.D.4 and Ex.D.5, respectively, as per Ex.D.4(A) and Ex.D.5(A). The Plaintiff himself has admitted his signature as first attesting witness to both the documents Ex.D.4 and Ex.D.5, as per Ex.D.4(B) and 46 OS No. 26709/2012 Ex.D.5(B). The Defendant No.1 has admitted his signature as the second attesting witness to both the documents Ex.D.4 and Ex.D.5 as Ex.D.4(C) and Ex.D.5(C). Both the attesting witnesses to Ex.D.4 and Ex.D.5, have been examined in this case as PW.1 and DW.1, who have admitted their respective signatures. So the first ingredient is fulfilled.
2) Whether the natural heirs have been disinherited? If so, what is the reason?
As per Ex.D.4 and Ex.D.5, the natural heirs - the Plaintiff, Defendant Nos.1 and 2, have been disinherited under the said Wills, said to have been executed by their parents. But such disinheritance is with the knowledge of the said natural heirs, as the Plaintiff and the Defendant No.1 have stood the attesting witnesses to the said Wills, Ex.D.4 and Ex.D.5 and the Defendant No.2 who happens to be the sister of the Plaintiff, Defendant No.1,3 and 4 has filed her Written Statement along with Defendant Nos.3 and 4 contending that, her parents have 47 OS No. 26709/2012 executed Wills as per Ex.D.4 and Ex.D.5. So execution and writing of Wills Ex.D.4 and Ex.D.5, by the parents are well within the knowledge of the Plaintiff, Defendant No.1 and Defendant No.2. Thus, such disinheritance of the natural heirs, will not create a ground of suspicion surrounding the said Wills Ex.D.4 and Ex.D.5.
3) Whether the testator was in a sound state of mind at the time of executing the Will;
Since both the Wills Ex.D.4 and Ex.D.5 have been attested by the Plaintiff and the Defendant No.1, so also execution of Will is within the knowledge of the Defendant No.2 and it is only the Plaintiff, who is denying the execution of the said Will, as per the pleadings , but admitting execution of Will by his parents, as per his evidencecross examination.
Coming to the ocular evidence more specifically cross examination of PW.1 at Page No.11, Line No.9 to 16, which reads as under;
48 OS No. 26709/2012".......It is true to suggest that my father was a successful business man. My mother was a home maker. It is true to suggest that during my father life's time he took care of all his children equally. It is true to suggest that my father had a wish that after his death his children should not fight among themselves for partitioning properties. It is true to suggest that my father and mother were both mentally sound till their death. ......"
As per this evidence, PW.1 contends that his father was a successful businessman, his mother was a home maker. Further admits that, during the lifetime of his father, his father took care of all his children, equally and his father had a wish that, after his death, his children should not fight among themselves for Partition of the properties. Very importantly Plaintiff admits that his parents were both mentally sound till their death.
4) Whether any suspicious circumstances exist surrounding the execution of the Will?
49 OS No. 26709/2012Though the Plaintiff has denied the execution of the Wills Ex.D.4 and Ex.D.5, but since he himself is the first attesting witness wherein he admits his signature on the said document at Ex.D.4(A) and Ex.D.5(A), then it was for him to raise strong suspicious circumstances, which he has not putforth nor placed.
5) Whether the Will has been executed inaccordance with Sec. 63 of Indian Succession Act R/W Sec. 68 of Indian Evidence Act.
Section 68 of Indian Evidence Act, which reads as under;
"68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
(Provided that it shall not be necessary to call an attesting witness in 50 OS No. 26709/2012 proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied)".
Section 63 of Indian Succession Act, which reads as under;
"63. Execution of unprivileged Wills. Every testator, not being a soldier employed an expedition or engaged in actual warfare, (or an airman so employed or engaged,) or mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to 51 OS No. 26709/2012 the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
16. Sec. 63 lays down the following Rules;
1) The testator shall sign or affixed his mark to the Will and/ or it shall be signed by some other person, in his presence and at his direction;
In the present case, the Plaintiff who has denied execution of Ex.D.4 and Ex.D.5 in his plaint averments, he himself has admitted the signature of his parents on the said documents, as Ex.D.4(A) and Ex.D.5(A), respectively and his signature as attesting witness No.1 to the said documents as Ex.D.4(B) and Ex.D.5(B). The first attesting witness is examined in 52 OS No. 26709/2012 this case as PW.1 and the second attesting witness has been examined as DW.1 and both the witnesses have identified the signatures of their parents. Hence, the provisions of Sec.68 of Indian Evidence Act and Sec. 63 of Indian Succession Act have been complied.
Viewing from every angle, it can be said that the Defendant Nos.3 and 4 have proved that, their father C.S.Srinivas Rao has executed Will Deed as per Ex.D.4, bequeathing his 1/6th share in Suit Schedule FProperty, in their favour. And their mother Smt. Lalitha Bai has executed Will Deed as per Ex.D.5, bequeathing her 1/6th share in the Suit Schedule F Property, in their favour.
e) Regarding execution of Release Deed by the Plaintiff and the Defendant No.1:
The Plaintiff has contended that, the Defendant Nos.3 and 4 by projecting that there will be a Partition inrespect of all the Suit Schedule Properties including the Suit Schedule FProperty has got executed certain documents. Consequently, the Plaintiff wants to 53 OS No. 26709/2012 contend that though certain documents include the Release Deed, which he claims to be the out come of fraud.
The Defendant No.1 contends that, he and the Plaintiff have executed the Release Deed inrespect of their 1/6th share respectively, in the Suit Schedule F Property, infavour of Defendant Nos.3 and 4.
The Defendant Nos.2 to 4 contend that, the Plaintiff and the Defendant No.1 have executed the Release Deed in their favour releasing their 1/6th share respectively in the Suit Schedule FProperty.
During the course of cross examination of PW.1, the Defendants have got marked the Release Deed Ex.D.3, on its confrontation to the Plaintiff. The relevant ocular evidence can be seen as per cross examination of PW.1, at Page No.16, Para No.3, which reads as under;
"Now original release deed dt. 14.05.1999 is shown to the witness and questioned him, as per the said document, you and your brother the defendant No.1 has executed a 54 OS No. 26709/2012 release deed. Witness replies "Yes".
On admission of the said document on confrontation the same is marked as Ex.D3. It is true to suggest that Ex.D3 is done as per law."
As per this evidence, the Plaintiff admits the execution of Release Deed dtd.14.05.1999 by him and his brother the Defendant No.1 infavour of his other brothers Defendant Nos.3 and 4.
Further as per the cross examination of DW.1, at Page No.14, Para No.5, which reads as under;
"It is true to suggest that myself and the Plaintiff have executed a Release Deed dt. 14.05.1999, infavour of Defendant No.2 and 3 as per Ex.D3. As on the date of execution release deed Plaintiff was married and he was having children. Since the property of the Plaintiff was having more value and the properties of the Defendant No.2 and 3 were having less value, in order to have equi distribution of the properties, release deed was executed as per the Ex.D3. It is true to suggest that prior to execution of release deed no any partition were taken place inbetween we brothers. Witness volunteers that as per the oral 55 OS No. 26709/2012 instructions of my father, for allocation of the properties inbetween we brothers, properties were allotted. It is false to suggest that my father has not issued any such oral instruction and I am deposing falsely, in order to suit our claim. I have executed the said release deed on the basis of oral instructions of my father. It is false to suggest that Release Deed dt. 14.05.1999 Ex.D3 was got executed from the Plaintiff, on the promise that he will be given equal share in all the properties subsequently."
As per this evidence, Defendant No.1/DW.1 admits that, he and the Plaintiff have released their respective 1/6th share in Suit Schedule FProperties as per Ex.D.3Release Deed dtd.14.05.1999.
On the basis of above documentary and ocular evidence, it can be concluded that though the Plaintiff has contended that a fraud has been played by the Defendant Nos.3 and 4 on him and got executed the Release DeedEx.D.3, but the said Plaintiff has admitted the execution of Ex.D.3Release Deed with his brother and which is also confirmed by the said brother, who is noneother than the Defendant 56 OS No. 26709/2012 No.1/DW.1. If at all, a fraud was played withregard to getting execution of document like Release Deed Ex.D.3, definitely even the Defendant No.1/DW.1 would have raised, such voice as has been raised by the Plaintiff in the Suit Plaint. Since the Plaintiff has admitted the execution of the Release Deed as per Ex.D.3, I am constrained to hold that the Defendants, more specifically Defendant No.1 has proved that, Plaintiff has executed the Release Deed alongwith him, inrespect of Suit Schedule FProperty, infavour of the Defendant Nos.3 and 4.
f) Withregard to Partition:
The Plaintiff contends that though the Partition Deed dtd.25.03.2006 was entered into inbetween him and his brothers, the said Partition Deed was not acted over. Since there was an unequi distribution of the properties, the Plaintiff claims to have repartition of the properties.
The Defendant No.1 contends that as per the will and consent of the respective parties, all the 57 OS No. 26709/2012 parties have executed the Partition Deed dtd.25.03.2006 agreeing upon the terms mentioned, therein.
The Defendant Nos.2 to 4 contend that in the Partition Deed dtd.25.03.2006, major share was allotted to the Plaintiff in the form of Suit Schedule D Property and accordingly respective sharers are in Possession and Enjoyment of their respective shares, allotted under the said Partition. Consequently, Partition Deed dtd.25.03.2006 is acted over and there is no need for repartition, as contended by the Plaintiff.
(i) Regarding execution of Partition Deed dtd.25.03.2006: The Defendants have got confronted the Partition Deed dtd.25.03.2006, to the Plaintiff, as Ex.D1, which can be seen, as per the ocular evidence, more specifically cross examination of PW.1, at Page No.15, Para No.1, which reads as under: 58 OS No. 26709/2012 "It is true to suggest that Advocate Suryaprakash is our family advocate, he used to take care of all the documents, done in our family. Now certified copy of the partition deed dt. 25.03.2006 is shown to the witness and questioned him, whether the partition deed referred by you is the same partition deed, witness replies "Yes". On admission of the said document on confrontation the same is marked as Ex.D1. It is true to suggest that as per the allotment in the partition deed dt. 25.03.2006 respective parties are in enjoyment of the allotted portions of the property. It is true to suggest that as per the allotment of the shares taken place by virtue of partition deed dt. 25.03.2006, I do not have any right over the properties allotted to other brothers and other brothers do not have any right in the property allotted to me. It is true to suggest that Ex.D1 is done as per law."
As per this evidence, the Plaintiff admits that, the Partition Deed which is referred by him in the Suit Plaint is the Partition Deed, of which certified copy is produced, which is marked on confrontation on DW.1. Further Plaintiff admits that, as per the allotments 59 OS No. 26709/2012 made under the said Partition Deed, respective parties are in enjoyment of the allotted portions. Further Plaintiff admits that, as per the allotment made under the Partition Deed dtd.25.03.2006, he does not have any right over the properties allotted to the other brothers and vice versa, other brothers do not have any right in the property allotted to him. More importantly Plaintiff admits that, Ex.D1 Partition Deed dtd.25.03.2006, is done as per law.
Further as per the cross examination of DW.1 at Page No.9, Para No.2, which reads as under: "Partition in our family is taken place on 25.03.2006."
As per this evidence, Defendant No.1 has contended that, Partition in their family has taken place as per Ex.D.1 Partition Deed dtd.25.03.2006.
60 OS No. 26709/2012(ii) Allotment of shares as per Ex.D.1 Partition Deed dtd.25.03.2006: The Plaintiff contends that, there is unequal allotment of shares in the Partition taken place under the Partition Deed dtd.25.03.2006.
The Defendants contend that, measure portion has been alloted to the Plaintiff, as such there is no any unequal distribution, as contended by the Plaintiff.
Ex.D1 Partition Deed dtd.25.03.2006, was got marked on confrontation to PW.1. The relevant ocular evidence, to this effect, can be found as per the cross examination of PW.1, at Page No.15, Para No.1, which read as under: "It is true to suggest that Advocate Suryaprakash is our family advocate, he used to take care of all the documents, done in our family. Now certified copy of the partition deed dt. 25.03.2006 is shown to the witness and questioned him, whether the partition deed referred by you is the same partition deed, witness replies "Yes". On admission of 61 OS No. 26709/2012 the said document on confrontation the same is marked as Ex.D1. It is true to suggest that as per the allotment in the partition deed dt. 25.03.2006 respective parties are in enjoyment of the allotted portions of the property. It is true to suggest that as per the allotment of the shares taken place by virtue of partition deed dt. 25.03.2006, I do not have any right over the properties allotted to other brothers and other brothers do not have any right in the property allotted to me. It is true to suggest that Ex.D1 is done as per law."
a) Coming to the ocular evidence, more specifically cross examination of PW.1, at Page No.10, Line Nos.1 to 6, which read as under: "It is true to suggest that, I was running Lalitha Wine Shop. It is true to suggest that Lalitha is my mother's name and the shop was named after her. It is true to suggest that my father had started the said business prior to 1988. it is true to suggest that after my father died, the above Lalitha Wine Shop become out joint family business. ....."
62 OS No. 26709/2012As per this evidence, the Plaintiff admits that, he is running Lalitha Wine shop, which is named after the name of his mother. The said business was started by his father prior to 1988. After the death of his father, the said business has become the joint family business.
Further as per the cross examination of PW.1, at Page No.10, Line No.21 to Page No.11, Line No.5, which read as under: "..... It is true to suggest that in the Partition plaint 'D' schedule property fallen to my share. It is true to suggest that other than the rental income from plaint 'D' schedule property and from the above said wine center, I do no have any other income. ...."
As per this evidence, the Plaintiff contends that he is not having any other business, other than Lalitha Wine shop. The Plaintiff admits that, Suit Schedule D Property has fallen to his share. He is receiving the rental income from the Suit Schedule D 63 OS No. 26709/2012 Property and business income from the Lalitha Wine Shop.
Further as per the cross examination of PW.1, at Page No.12, Para No.2, which read as under: " It is true to suggest that schedule 'D' property has come to me under family Partition dtd.25.04.2003 through my mother. It is true that after the said Partition, khatha was changed into my name. It is true to suggest that I have been paying taxes ever since. It is true to suggest that there are 14 commercial shops in the schedule 'D' property and five houses of single bed room and four houses of double bed room. In 2006, I was getting rental of Rs.20,000/. Now I am betting rental about Rs.one Lakh per month."
As per this evidence, Plaintiff admits that, Suit Schedule D Property has come to him under the family Partition dtd.25.04.2006, through his mother. Further admits that, after the said Partition khatha pertaining to the said property was changed in his name and he is paying the taxes and receiving rents of Rs.1,00,000/ per month.
64 OS No. 26709/2012Further as per the cross examination of PW.1, at Page No.12, Para No.3, Line No.4 onwards, which reads as under: "... It is true to suggest that since 2006, I have been maintaining the house properties allotted to my share by causing necessary repairs and all. It is true to suggest that schedule 'D' property ground measures 3,280 sq.ft and the building on the said property measures 6,500 sq.ft. It is true to suggest that it is corner building. I do no know that in the year 2006, the said property was fetching Rs.600/ sq.ft as per the Sub Registrar valuation. I do now know that during the said period, the building was valuing Rs.580/ per sq.ft. I do not know that during 2006 itself, building and site it was worth Rs.70 to 80 Lakhs."
As per this evidence, the Plaintiff admits that, since 2006, he is maintaining the house properties which has been fallen to his share, by carrying out necessary repairs etc., Further admits that, ground floor of Suit Schedule D Property measures 3,280 Sq.ft., and the building on the said property measures 65 OS No. 26709/2012 6,500 Sq.ft, it is a corner building, but denies that, the said property was fetching Rs.600/ per Sq.ft in the year 2006, and the same is worth Rs.70 to 80 Lakhs.
As per the above said oral evidence and on the basis of Ex.D1 Partition Deed dtd.25.03.2006, it can be said that, Suit Schedule D Property has fallen to the share of the Plaintiff and one Wine shop named as Lalitha Wine Shop, has come to his share.
b) As per the cross examination of PW.1, at Page No.13, Para No.4, Line Nos.5 to 12, which read as under: "... It is true to suggest that 1/3rd in the 'B' schedule and entire 'C' and 'E' schedule have fallen to the share of third Defendant. Witness volunteers that in the wine shop also he has been given share. I do not know that the properties allotted to the share of third Defendant totally measures 2,988 sq.ft. I do not know that in 2006, the properties allotted to the share third Defendant share worth Rs.46 Lakhs. ..."
66 OS No. 26709/2012As per this evidence, Plaintiff admits that, 1/3rd in the Suit Schedule B Property and entire Suit Schedule C and E Properties have fallen to the share of the 3rd Defendant. Further Plaintiff contends that, even 3rd Defendant is given share in the Wine shop. Plaintiff pleads ignorance about the worth of the properties fallen to share of 3 rd Defendant as it would be Rs.46 Lakhs.
So as per this 1/3rd of Suit Schedule B Property, and entire Suit Schedule C and E Properties have fallen to the share of the Defendant No.3.
c) As per the cross examination of PW.1, Page No.13, Para No.4, Line Nos.12 to 15 and Line Nos.17 and 18, which read as under: ".... It is true to suggest that 1/3rd of schedule 'B' and entire 'A' schedule property was given to the fourth Defendant in the Partition. Witness volunteers that wine shop was also given to him. .."
67 OS No. 26709/2012"I do not know that fourth Defendant share was worth Rs.35 Lakhs. .."
As per this evidence, Plaintiff admits that, 1/3rd in the Suit Schedule B Property and entire Suit Schedule A Property have fallen to the share of the 4 th Defendant. Further Plaintiff contends that, even 4 th Defendant is given share in the Wine shop. Plaintiff pleads ignorance about the worth of the properties fallen to share of 4th Defendant, as it would be worth Rs.35 Lakhs.
So as per this 1/3rd of Suit Schedule B Property, and entire Suit Schedule A Property have fallen to the share of the Defendant No.4.
d) As per the cross examination of PW.1, at Page No.13, Para No.4, Line Nos.15 to 17 and 18 and 19, which read as under: "... It is true to suggest that the second Defendant was given 1/3rd share in the 'B' schedule property. I do not know that the fourth Defendant 68 OS No. 26709/2012 share was worth Rs.35 lakhs and the second Defendant share was worth Rs.18 Lakhs."
As per this evidence, the Plaintiff admits that, 1/3rd in the Suit Schedule B Property is fallen to the share of the 2nd Defendant. Plaintiff pleads ignorance about the worth of the properties fallen to share of 2 nd Defendant, as it would be worth Rs.18 Lakhs.
So as per this 1/3rd of Suit Schedule B Property, has fallen to the share of the Defendant No.2.
e) Further as per the cross examination of DW.1 at Page No.13, Para No.2, which reads as under: "It is true to suggest that in the year 2006 a registered Partition Deed was entered inbetween the heirs of my father. It is true to suggest that Plaintiff has received only one property in the said portion in 2006. It is false to suggest that all the suit schedule properties were not the subject matter of the Partition Deed dt. 25.03.2006 Ex.D1. Witness volunteers that except suit schedule "F" property, all the 69 OS No. 26709/2012 properties were the subject matter of the said Ex.D1Partition Deed dt.
25.03.2006. It is false to suggest that major portion of the properties were allotted to Defendant No.3 and 4 in Partition Deed dt. 25.03.2006 Ex.D1. Witness volunteers that valuable property was given to the Plaintiff in the said Partition Deed dt. 25.03.2006 Ex.D1. Prior to entering into a Partition Deed dt. 25.03.2006 Ex.D1, valuation of all the properties were got done from the Office of the SubRegistrar. I do not know as to from which SubRegistrar the said properties were valued. I do not have any documents to show that all the properties were got valued from the SubRegistrar. It is false to suggest that we have not got done the valuation of the said properties as deposed by me above and I am deposing falsely in this case. A recital is mentioned in Partition Deed dt. 25.03.2006 Ex.D1, that "since the value of the property allotted to the share of the Plaintiff is more, so only one property is allotted to him". It is false to suggest that I am deposing falsely that the property allotted to the Plaintiff fetches more value and the properties allotted to the 70 OS No. 26709/2012 Defendant Nos.2 and 3 fetches less value."
As per this evidence, Defendant No.1 admits that, Partition has taken place by registered Partition Deed in the year 2006, wherein the Plaintiff has received only one property. All the Suit Schedule Properties were not the subject matter of the Partition dtd.25.03.2006, as Suit Schedule F Property was not the subject matter of it. Further Defendant No.1 denies that, major portions of the properties are allotted to the Defendant Nos.2 and 3, in Partition dtd.25.03.2006. But he contends that, valuable properties was given to the Plaintiff. Valuation of the all the properties were got done prior to entering into the Partition Deed dtd. 25.03.2006. Further he contends that, there is a recital in the Partition Deed dtd.25.03.2006 that, "since the value of the property alloted to the share of the Plaintiff is more, so only one property is alloted to him".
71 OS No. 26709/2012f) Further as per the cross examination of PW.1, at Page No.13, Para No.5, Line Nos.1 and 2 which read as under: "It is true to suggest that in the said Partition I have taken larger and also better valued property to my share......"
As per this evidence, the Plaintiff admits that, he has taken larger and also better valued property, towards his share.
g) Further as per the cross examination of PW.1, at Page No.12, Para No.3, Line Nos.2 to 4 which read as under: " I do not have any dispute regarding house properties. My complaint is only regarding land. ..."
As per this evidence, the Plaintiff contends that, he does not have any dispute withregard to house property, but his complaint is only withregard to the land, i.e., Suit Schedule F Property.
72 OS No. 26709/2012Thus, as per the above ocular and documentary evidence, it can be concluded that, the Plaintiff admits execution of the Partition Deed dtd.25.03.2006, and he receiving the Suit Schedule D Property, towards his share, which is a larger property and of better value, comparatively to the properties alloted to the Defendants. Further Plaintiff has expressed that, he is not having any dispute regarding Partition of the house properties i.e., Suit Schedule A to E Properties, but he is having dispute withregard to the land i.e., Suit Schedule F Property.
13. Coming to the property Suit Schedule F Property.
As already discussed that, this Suit Schedule F Property was purchased by the father of the Plaintiff and the Defendants, jointly in the names of the Plaintiff, Defendants and their parents, which is also admitted by the Plaintiff, as per the cross examination 73 OS No. 26709/2012 of PW.1, Page No.16, Para No.2, which read as under: "Now original registered sale deed dt. 31.10.1988 is shown to the witness and questioned him, as per the said document, you, your brother, your parents have purchased suit schedule "F" properties, jointly. Witness replies "Yes". On admission of the said document on confrontation the same is marked as Ex.D2."
14. During the life time of the father, the father executed a Will Deed Ex.D4, bequeathing his 1/6th share in the Suit Schedule F Property, infavour of the Defendant Nos.3 and 4, which is admitted by the Plaintiff, as he himself was the 1 st attesting witness to the said Will.
15. During the life time of the mother, the mother executed a Will DeedEx.D5, bequeathing her 1/6th share in the Suit Schedule F Property, infavour of the Defendant Nos.3 and 4, which is admitted by 74 OS No. 26709/2012 the Plaintiff, as he himself was the 1 st attesting witness to the said Will.
16. Further the Plaintiff and the Defendant No.1 have released their respective 1/6th share in the Suit Schedule F Property, by virtue of Release Deed dtd.14.05.1999Ex.D3, which is also admitted by the Plaintiff and which has been discussed in this Judgment, supra.
17. It is the specific contention of the Plaintiff that, the Partition Deed dtd.25.03.2006, is not acted over, but as per the evidence referred to supra, wherein the Plaintiff has admitted that, he is looking after all the affairs and maintaining the Suit Schedule D Property fallen to his share, under the said Partition Deed dtd.25.03.2006, added to this, if it is seen that, the Defendant Nos.3 and 4 have produced the Gift Deed dtd.01.03.2000, executed by Defendant No.4 infavour of his wife, the said document though produced by the Defendant Nos.3 and 4, but the said 75 OS No. 26709/2012 document has remained to be got marked as 'D' series. As per the said document, it is seen that, the Defendant No.4 has gifted his half share in the Suit Schedule F Property infavour of his wife Radha Bai.
18. The Defendant Nos.3 and 4 have contended that they have got converted the lands out of Suit Schedule FProperty, for there nonagricultural use. The Defendant Nos.3 and 4 have produced the conversion order dtd.27.07.2011 at Ex.D.13. As per this order, it is seen that the lands shown as Suit Schedule FProperty has been got converted by Defendant Nos.3 and 4 for there nonagricultural use.
19. Further the Defendant Nos.3 and 4 have produced Registered Partition Deed dtd.15.12.2011 at Ex.D.14 and Rectification Deed to the said Partition Deed at Ex.D.15. As per these documents, it is seen that a Partition has taken place inbetween Radha Bai W/o Chandrakanth and the Defendant No.3, inrespect of Suit Schedule F Properties.
76 OS No. 26709/2012Further the Defendant Nos.3 and 4 have produced the Registered Gift Deed dtd.09.01.2012 at Ex.D.16 and its Rectification Deed at Ex.D.17. As per these documents, it is seen that Radha Bai has gifted portion of the property fallen to her share under Partition Deed dtd.15.12.2011, inrespect of Suit Schedule FProperty, to her husband Chandrakantha the Defendant No.4.
20. Coming to the ocular evidence on this point more specifically cross examination of PW.1, at Page No.14, Line Nos.18 to 23, which reads as under;
"......It may be true that Defendants 3 and 4 have got the said land converted in the year 2011. I do not know for what purpose Sy.No.29/1 measuring 1 Acre 19 guntas was acquired by the government, but it might be for forming channel. I have not filed any case to recover the land from the Government".
As per this evidence, the Plaintiff contends that the Defendant Nos.3 and 4 might have got converted 77 OS No. 26709/2012 the land in the year 2011. Further the Plaintiff pleads his ignorance withregard to forfeiture of land bearing Sy.No.29/1.
Further the Defendant Nos.3 and 4 have produced order passed by the KAT in Appeal No.907/2005 at Ex.D.12. As per this document, it is seen that KAT has passed the Order inrespect of the lands shown as Suit Schedule FProperty.
Coming to the ocular evidence on this point more specifically cross examination of PW.1, at Page No.18, Line Nos.1 to 7, which reads as under;
"........I do not know whether the Suit Schedule F Properties were forfeited infavour of the Government U/Sec. 79(A) and 79(B) of the Karnataka Land Reforms Act. It is true to suggest that my brothers Defendant Nos.3 and 4 have fought out a litigation with the Government and brought back Suit Schedule FProperties. I have filed the present suit for the relief of Partition at the instance of my children".
As per this evidence, Plaintiff pleads his ignorance that, Suit Schedule FProperties were 78 OS No. 26709/2012 forfeited infavour of the Government under Sec. 79(A) and 79(B) of Karnataka Land Reforms Act. But admits that Defendant Nos.3 and 4 have fought out the litigation with the Government and brought back Suit Schedule FProperties.
21. Further as per the cross examination of PW.1, at Page No.17, para No.3 Line Nos.1 to 3, which reads as under;
"It is true to suggest that Suit Schedule FProperties are in Possession and Enjoyment of the Defendant Nos.3 and 4..........."
As per this evidence, Plaintiff admits that the Defendant Nos.3 and 4 are in Possession of the Suit Schedule FProperty.
Thus, on the basis of the above documentary and ocular evidence, it can be concluded that Suit Schedule FProperties was purchased by the father of the Defendant Nos.3 and 4 by virtue of Sale Deed dtd.31.10.1988Ex.D.2, in his name, in the name of 79 OS No. 26709/2012 his wife and his male children Plaintiff, Defendant No.1 and Defendant Nos.3 and 4. Thereafter, father of Defendant Nos.3 and 4 bequeathed his 1/6th share in the said properties, by virtue of WillEx.D.4.
Likewise mother of the Defendant Nos.3 and 4bequeathed her 1/6th share in the said properties, by virtue of Will Ex.D.5. Subsequent to death of the parents, Plaintiff and Defendant No.1 executed Release Deed, releasing their respective 1/6th share in the Suit Schedule FProperties, as per Release Deed dtd. 14.05.1999Ex.D.3. Infurtherance of these documents the Defendant No.4 gifted his half share in Suit Schedule FProperty infavour of his wife on 01.03.2000. On the basis of the said Gift Deed, wife of Defendant No.4 Radha Bai and Defendant No.3 got converted the land as per Ex.D.13 on 27.07.2011. Thereafter, Radha Bai wife of Defendant No.4 and the Defendant No.3 got Partitioned the Suit Schedule F Properties, as per Partition Deed dtd.15.12.2011. On the basis of the said Partition Deed, Radha Bai again gifted portion of her share to her husband Defendant 80 OS No. 26709/2012 No.4, by virtue of Gift Deed dtd.09.01.2012Ex.D.16. The Partition Deed dtd.15.12.2011, was got rectified as per Ex.D.15 and the Gift Deed dtd.09.01.2012 was got rectified as per Ex.D.17. Further Plaintiff has admitted that, the Defendant Nos.3 and 4 are in Possession of the Suit Schedule FProperties. Thus, all these goes to show that Partition Deed dtd.25.03.2006 as well as Release Deed dtd.14.05.1999 have been acted over.
22. The Learned Counsel for the Defendants contend that since the Plaintiff has failed to prove the Partition as improper, and that fraudulent Partition has taken place, under Partition Deed dtd.25.03.2006, so Plaintiff will not be entitle to seek repartition. The Learned Counsel for the Defendants has placed his reliance on the decision of the Hon'ble Apex Court in the case of Rathnam Chettiar & Others V/s S.M. Kuppuswamy Chettiar & Others; reported in AIR 1976 SC 1; wherein it is held that;
81 OS No. 26709/2012"A Partition effected between the members of a Hindu undivided family, by their own volition and with their consent, then it cannot be reopened, unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. The Court should require strict proof of the facts, because an act inter vivos cannot be lightly setaside."
Applying the above guiding principles to the instant case at hand, though the Plaintiff has averred that a fraud has been played by the Defendant Nos.3 and 4 in getting the Release DeedEx.D.3 and further averred that Partition effected under Partition Deed dtd.25.03.2006Ex.D.1, the same is not acted over, but the Plaintiff himself has admitted execution of Ex.D.3 and further the Plaintiff himself has admitted that, the Partition Deed dtd.25.03.2006Ex.D.1 is acted over and larger portion of the property out of the properties left by his parents, is alloted to him in the form of Suit Schedule DProperty and the same has been received by him. Under such circumstances, the Plaintiff has failed to prove that, the Partition effected 82 OS No. 26709/2012 inbetween the members of the family, by virtue of Partition Deed dtd.25.03.2006Ex.D.1 is either obtained by fraud, coercion, misrepresentation or undue influence. Hence, the Plaintiff is not entitle for the relief of reopening of the Partition taken place under Partition Deed dtd.25.03.2006Ex.D.1 or repartition of the Suit Schedule Properties.
Thus, the Defendant No.1 has proved that the Plaintiff has executed Release Deed infavour of Defendant Nos.3 and 4 on 14.05.1999 as per Ex.D.3. And the Plaintiff has failed to prove that the Partition effected under Partition Deed dtd.25.03.2006 is improper, consequently entitle for repartition of the Suit Schedule Properties. Hence, I answer ISSUE NO.3 IN THE AFFIRMATIVE AND RECASTED ISSUE NO.5 IN THE NEGATIVE.
23. ISSUE NO.4:
The Defendant No.1 has contended that the suit of the Plaintiff is barred by limitation.83 OS No. 26709/2012
In continuation of the earlier discussion, it is already seen that Plaintiff himself has admitted about execution of the Release DeedEx.D.3 on 14.05.1999 and execution of Partition DeedEx.D.1 on 25.03.2006, then, when the Plaintiff is the executant of the said documents, he has to seek the relief of declaration, to declare the said documents, as Null and Void. Inspite of seeking such relief, the Plaintiff has chosen to seek the relief of Partition, inorder to avoid attraction of provisions of Limitation Act and inorder to avoid payment of Court Fees. Under such circumstances, when the Plaintiff himself has admitted execution of the said documents, if at all, he is aggrieved by the said execution of the documents, muchtheless on the ground of fraud, undue influence etc., then he ought to have sought the relief of declaration, within the meaning of Sec.34 of the Specific Relief Act and he ought to have paid the Court Fees U/Sec. 24 of the Karnataka Court Fees and Suit Valuation Act.84 OS No. 26709/2012
If limitation is to be counted, for the relief ought to have been claimed by the Plaintiff within the meaning of Sec.34 of the Specific Relief Act, then Article 58 of the Limitation Act will come into play and will be applicable, which prescribes time limit of threeyears. According to the said provisions, the suit filed by the Plaintiff will be barred by Limitation. Hence, I am constrained to answer ISSUE NO.4 IN THE AFFIRMATIVE.
24. ISSUE NO.6:
When the Plaintiff, he himself has admitted that, already Partition has been taken place inbetween his family members as per Partition Deed dtd.25.03.2006Ex.D.1, he will not be entitle for again Partition of the Suit Schedule Properties. Thus, Plaintiff is not entitle for further Partition of the Suit Schedule Properties, muchtheless to the extent of 1/4th share in the Suit Schedule Properties. Hence, I 85 OS No. 26709/2012 am constrained to answer ISSUE NO.6 IN THE NEGATIVE.
25. ISSUE NO.7:
When the Plaintiff has not made out the grounds to reopen the Partition or for repartition of the Suit Schedule Properties, as required by law as per the guiding principles laid down by the Hon'ble Apex Court in the case of Rathnam Chettiar & Others V/s S.M. Kuppuswamy Chettiar & Others; reported in AIR 1976 SC 1; then he is not entitle for the said reliefs. Hence, I answer ISSUE NO.7 IN THE NEGATIVE.
26. ISSUE NO.8:
For having answered Issue No.1 in the Affirmative, Issue No.2 partly in the Affirmative, Issue No.3 in the Affirmative, Issue No.4 in the Affirmative, recasted Issue No.5 in the Negative, Issue No.6 and 7 in the Negative, I proceed to pass the following:86 OS No. 26709/2012
ORDER Suit of the Plaintiff is hereby Dismissed.
Looking to the relationship
inbetween the parties, both the
parties to bear their own costs.
Draw Preliminary Decree,
accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 24th day of January, 2020) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 87 OS No. 26709/2012 :Schedule 'A' Property:
All that piece and parcel of the property bearing No.11/1, 1st Cross, Pemmegowda Street, Munireddypalya, Bangalore, formerly site No.16 of Sy No.7 of Matadahalli, measuring East to West: 40 feet and North to South: 36 feet and bounded on:
East by: Private Property.
West by: Road.
North by: Site No.15.
South by: Site No.17.
:Schedule 'B' Property:
All that piece and parcel of property bearing No.123, New No.205, Narayana Pillai Street, Civil Station, Bangalore, measuring on East 27.6 feet, on West 27.6 feet, North 64 feet and South 64 feet and bounded on: East by: Md. Ghouse and Abdul Majid Saheb House, West by: Road, North by: Vaikunta's Property, South by:House of Linganna and Muniswamy.88 OS No. 26709/2012
:Schedule 'C' Property:
All that piece and parcel of house property bearing No.102, Old Plot No.66, New Pottery Town Layout, Civil Station, Bangalore, measuring East to West: 30 feet and North to South 30 feet and bounded on:
East by: Road, West by: Vacant Land, North by: Property No.67, South by:Property No.65.
:Schedule 'D' Property:
All that piece and parcel of property bearing old Plot No.1 and 2, formed in Sy No.92 of Kayamgutta Bidarahalli, and now bearing BBMP No.36, 2nd Main Road, Chinnappa Garden, Besontown Post, Bangalore560046 measuring on East to West: 40 feet and North to South: 82 feet and bounded on:
East by: Plot No.3 and 4, West by: 30 feet road, North by: 20 feet road, South by: Road.
:Schedule 'E' Property:89 OS No. 26709/2012
All that piece and parcel of property bearing Site No.2, formed in Sy No.7, of Matadahalli, now situated in Pemmegowda Street, Bangalore measuring on East to West on Northern Side: 44.6 feet on Southern side 45 feet, and North to South: 36 feet and bounded on:
East by: Road, West by: Conservancy lane, North by: Site No.3 and South by: Site No.1.
:Schedule 'F' Property:
All that piece and parcel of land situated in Doddagubbe Village, Bidarahalli Hobli, Hosakote Taluk, Bangalore District, comprising of total area of 6 Acre 04 Guntas, in Sy No.19/1 00.07 Guntas (agricultural land), in Sy No.29/5, 1 Acre 08 Guntas (converted), Sy No.19/2 3 Acre 10 Guntas (converted), Sy No.29/1, 1 Acre 19 Guntas (acquired by Government) in all 4 Acre 25 Guntas (out of originally 6 Acres 04 Guntas) and commonly bounded on:
East by: Ibrahim's land, West by: OB Ghorpade's land, North by: Village road, South by:Naalah.90 OS No. 26709/2012
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Gnaneshwar Rao.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
NIL LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: C.S Nageshwar Rao. DW.2: C.S Suryakanth Rao.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D1: Certified copy of Partition Deed. Ex.D2: Original Sale Deed dtd.31.10.1988. Ex.D3: Original Release Deed dtd.14.05.1999. Ex.D4: Original Will dtd.30.03.1994 Ex.D4(A to C): Signatures.
Ex.D5: Original Will dtd.11.02.1995. Ex.D5(A to C): Signatures.91 OS No. 26709/2012
Ex.D6 to D11: Six Gazette Notifications. Ex.D12: Certified copy of the Order passed by the KAT in Appeal No.907/2005.
Ex.D13: Certified copy of the Order passed by the Deputy Commissioner, Bengaluru, dtd.27.07.2011.
Ex.D14: Registered Partition Deed dtd.15.12.2011. Ex.D15: Registered rectification deed dt.16.01.2012 Ex.D16: Registered Gift Deed dtd.09.01.2012. Ex.D17: Registered rectification deed dtd.16.01.2012 [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)