Bangalore District Court
Babu Sudharshan vs Gayathri Bai on 19 September, 2024
KABC0A0030212012
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. Sreepada N,
B.Com., L.L.M.,
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 19th day of September 2024
O.S.No.25440/2012
Plaintiff:- Sri. Babu Sudharshan,
S/o Late Dashrath Rao,
Aged about 50 years,
Residing at No.20,
K.No. 5th Street Cross,
Narayana Pillai Street,
Bangalore-560 001.
[By Sri. Janardhana G - Adv]
V/s
2 OS No.25440/2012
Defendants:- 1. Smt. Gayathri Bai,
W/o Eshwar Rao,
Aged about 59 years,
Balak Primary & Secondary School,
Sarjapur,
Bangalore.
2. Smt. Nirmala Bai,
W/o Surendra Rao Ghodke,
Aged about 63 years,
Door No.14, 3rd Main Road,
3rd Cross, Matadahalli,
Ward No.46,
Bangalore-560 032.
3. Kum. Jyothi D,
D/o Dashrath Rao,
Aged about 58 years,
4. Kum. Vijayakumari,
D/o Dashrath Rao,
Aged about 56 years,
5. Smt. Udayakumari,
D/o Dashrath Rao,
Aged about 53 years,
6. Sri. Murali D,
S/o Dashrath Rao,
Aged about 45 years,
All are residing at Door No.20,
K.No. 5th Street Cross,
Narayana Pillai Street,
Bangalore-560 001.
3 OS No.25440/2012
[Defendant No.1-Ex-parte, D.2 - In
person, By Sri. Yogananda S-Adv.
for D.3 & D.4, Sri. DVSN-Adv-for
D.5 & 6]
2.3.2012
Date of Institution of the suit
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Partition Suit
for injunction, etc.)
Date of the commencement of
6.9.2018
recording of the Evidence.
Date on which the Judgment was
19.9.2024
pronounced.
Year/s Month/s Day/s
Total duration 12 06 17
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
The Plaintiff is before this court seeking partition of the Suit Schedule Property by metes and bounds and to grant 1/7th share to him and to allot the shares to the Defendants in the same ratio and also to rendition of accounts in respect of the rents received by the Defendants from the tenants who are 4 OS No.25440/2012 in occupation of the Suit Schedule Property and to declare the Partition Deed dtd: 8.10.2002 as null and void and not binding on the Plaintiff and for other consequential reliefs.
2. The facts of the Plaintiff's case are as under:
It is stated that the Plaintiff, Defendants and one Mr. V. Sathyanarayanarao were the children of Late Dashrath Rao who died on 12.5.1972 leaving behind them to succeed the Suit Schedule 'A' & 'B' Properties. Mr. V. Sathyanarayanarao also died as a bachelor and his share is also available for partition to the parties herein. The mother of the Plaintiff Smt. Sakkubai also died on 14.12.2002. The Plaintiff and Defendants are having 1/7th share each in the Suit Schedule 'A' & 'B' Properties. The father of the Plaintiff purchased properties in the name of their step mother Smt. Krishnabai, she died issueless and hence, the Plaintiff is entitled for share in the said properties. The Suit Item No.2 Property is having ground, first and second floor having 5 portions and out of that in one portion the Plaintiff has been residing and the ground floor, one portion, the Defendant No.3 to 6 have been residing and the rest 5 OS No.25440/2012 of the properties have been leased out. In item No.2 of the Suit Schedule Property consisting of ground, first and second floor buildings and it is having 3 portions and all of them have let to various tenants. Till date, the Suit Schedule Properties have not been partitioned due to some daughters are not married and there were some problems in the family, which has to be resolved before partition. The Plaintiff has contributed money for construction of building on the Suit Schedule 'A' & 'B' Properties by availing loan from his Department. The Plaintiff has requested the Defendants to partition the Suit Schedule Properties to clear his liabilities. But, the Defendants refused to partition the Suit Schedule Properties and also share the rents received from the respective tenants. The Defendants have forged the Partition Deed dtd:
8.10.2002 and made this Plaintiff as Party No.8 in the said Partition Deed and forged his signature on the same. Therefore, the Plaintiff has prayed to decree the suit.
3. Pursuant to the summons, the Defendant No.3 to 6 have entered appearance through their 6 OS No.25440/2012 Counsel and filed their separate detailed written statement.
4. The Defendant No.3 in her written statement contended that the suit of the Plaintiff is not maintainable either in law or on facts. The Item No.2 of the Suit Property is not open for partition as it belongs absolutely and exclusively to the Defendant No.4 & 5 under registered Partition Deed dtd:
8.10.2002, since the Plaintiff, their mother and step mother have allotted this property to Defendant No.4 & 5 for them to construct and own the same absolutely and forever. The Defendant No.3 to 5 are spinsters and the 6th Defendant is a bachelor. The Item No.1 & 2 of the Suit Properties were totally dilapidated and were unfit for human dwelling but still the parties to this suit lived in Item No.1 under great risk and since their father was no more and since they were moderately employed, the 3 rd Defendant determined to save these properties borrowed money from various sources, obtained sanction plan and started constructing Item No.2 property by taking long term lease advance of Rs.25 lakhs and the Plaintiff has not contributed anything 7 OS No.25440/2012 for construction. The Defendant No.3 has toiled hard to construct and Defendant No.4 & 5 were providing for the family including medical expenses of their mother who were ailing for more than 12 years. The Defendant No.3, her deceased brother Sathyanarayana Rao and 6th Defendant exhausted all sources and to save the Item No.1 property, the Plaintiff and the other parties to this suit decided to allot Item No.1 to Defendant No.4 & 5 to put up super structure and own the same and they become absolute owners of Item No.1. In the year 2003 the 4th and 5th Defendants availed 5 ½ lakh loan and put up construction and leased ground floor for 7 ½ lakhs and first and second floor for 4 ½ lakhs and the 4th and 5th Defendant have to pay these amounts to these tenants as and when they vacate and they also repaying the loan and managing the family.
Therefore, the Item No.1 of the Suit Property is not available for partition and the Plaintiff is not entitle to any share in the Item No.1 of the property. Hence, the suit is liable to be dismissed. The khatha of the property stands in the name of 4 th and 5th Defendants and they are paying tax to the concerned authority.
8 OS No.25440/20125. The Item No.2 of the Suit Property is purchased by the father of the Plaintiff and Defendants and this Defendant along with his deceased brother have filed eviction petition and started construction while staying in Item No.1 of the Suit Property by borrowing money from various sources and the same has been rented out. This Defendant occupied ground floor, the 1 st floor has two portion which were leased and the 2 nd floor has also two portions under lease. The total cost of construction exceeded Rs.30 lakhs which was met by lease amount.
6. It is further contended that, the Plaintiff who is employed was away from Bangalore all these years landed in Bangalore in the year 2010 and requested this Defendant accommodation but refused to pay even peny and this Defendant considering the relationship raised loan of Rs.5 lakhs and paid the same to the tenant which is the lease amount and allowed the Plaintiff to occupy the same and the Plaintiff is in occupation of the same along with his family. The Plaintiff before seeking for partition has 9 OS No.25440/2012 to pay the amount received from tenants. Hence, the Defendant No.3 has prayed to dismiss the suit.
7. The Defendant No.3 & 4 have filed additional written statement to the amended plaint filed by the Plaintiff and contended that the Partition Deed dtd: 8.10.2002 is a registered document and the Plaintiff is making allegation against the public officer without arraying them as parties before the Court is illegal as such the suit is bad for non-joinder of necessary parties. It is denied that the Plaintiff was on official duty in Pune on the date of registration and he has to prove of the same. Hence prayed to dismiss the suit.
8. On the basis of the pleadings and contentions of both the parties, my learned predecessor in Office, has framed following issues:
1. Whether the Plaintiff proves that, Suit Schedule Properties were jointly succeeded by Plaintiff and Defendants after the death of their father Dashratha Rao?10 OS No.25440/2012
2. Whether the Plaintiff is entitled for his 1/7th share in the Suit Schedule Properties?
3. Whether the Defendants prove that the Plaintiff is liable to pay his share of amount of the Rs.27 lakhs before seeking partition as contended in para 8 of the written statement?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether the Plaintiff proves that registered Partition Deed dtd:
8.10.2002 is null and void as contended in para No.4(a) of the suit plaint?
9. The Plaintiff got examined as PW1, examined one more witness as PW.2 and got marked 14 documents as Ex.P.1 to Ex.P.14 and got marked Ex.D.1 & Ex.D.2 through confrontation to PW.1. The Forensic Expert examined as CW.1 and got marked Ex.C.1. Inspite of sufficient opportunities, the 11 OS No.25440/2012 Defendants No.2 to 6 have not led oral evidence of any witnesses.
10. Heard the counsel for Plaintiff. The counsel for Defendants not submitted any arguments.
11. Perused the evidence and the documents on record.
12. 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 Negative. Addl.Issue No.1: In the Negative. Issue No.4: As per final order for the following REASONS
13. ISSUE No.1:
The burden of proving of this issue is casted upon the Plaintiff. The Plaintiff in his plaint and as well as in his examination-in-chief has specifically contended the Defendants, V. Satyanarayana and 12 OS No.25440/2012 himself were the children of Late Dashrath Rao who died on 12.5.1972 leaving behind all of them to succeed to the Suit Schedule Properties. Further also taken up the contention that V. Satyanarayana also died as a bachelor and his share is also available for partition among the parties herein. Further contended that his mother, step mother were also died and now himself and Defendants are having 1/7th share each in the Suit Schedule Properties. Even his father purchased the Suit Property in the name of their step mother Smt. Krishnabai. She also died issuless and hence himself and Defendants are only parties entitled for their respective shares in the Suit Properties.
14. Admittedly, in this suit, the Defendant No.1 placed ex-parte, Defendant No.3 to 6 have appeared through their respective counsels. Out of them Defendant No.3 to 6 have appeared through their advocates and filed written statement and have not at all denied that the Suit Schedule Properties were jointly succeeded by the Plaintiffs and Defendants after the death of their father. On the other hand, they have taken up specific contention 13 OS No.25440/2012 that already the Suit Schedule Properties were partition as per the registered Partition Deed dtd:
8.10.2002. No doubt, though the Defendants have resisted the suit by filing written statement and eloberately cross-examined PW.1, but nowhere denied that the Suit Schedule Properties were jointly succeeded by the Plaintiff and Defendants after the death of their father. So it is clear that they also impliedly admitted that the Suit Schedule Properties are the jointly succeeded by the Plaintiff and the Defendants after the death of their father. Hence, I answer this Issue in the Affirmative.
15. ISSUE No.3 & Addl. Issue No.1:
Since these issues are inter-connected with each other, hence they are taken up together for consideration.
16. The Defendant No.3 to 5 have taken up specific contention in their written statement that the Item No.1 of the Suit Schedule Property is not thrown upon for partition as it belongs to Defendant No.4 & 5, in view of Partition Deed dtd: 8.10.2002. The parties to this suit including the Plaintiff and their 14 OS No.25440/2012 mother and step mother have allotted this property to the Defendant No.4 & 5 for them to construct and own the same absolutely and for ever. This property was in dilapidated condition, accordingly they have constructed building by obtaining loan as the Plaintiff has not constructed anything for construction of the building. Even the Defendants have also taken up contention in their written statement that since the Item No.1 is not thrown open for partition the Plaintiff is not entitled to any share in the Item No.1 property.
Even after the partition the khatha of Item No.1 property changed in the name of Defendant No.4 & 5. Similarly, the Item No.2 property was also in dilapidated condition. The Defendant No.3 borrowed money from various sources and she had spend more than Rs.5 lakhs and commenced the super structure work and when the construction in progress, the tenants who were interested in occupying the property advanced money with which construction was completed and the money paid by the tenants is taken as lease amount and after completion, the Defendant No.1 occupied ground floor, the 1st floor has two portion which were leased and the 2nd floor has also two portions under lease.
15 OS No.25440/2012The total cost of construction exceeded Rs.30 lakhs which was met by lease amount, but as and when tenants desire to vacate, they have to pay this amount. Therefore, the Plaintiff has to pay the said amount of Rs.27,00,000/- before seeking partition in the Item No.2 property.
17. Further, after the Defendants have filed their written statement, the Plaintiff got amended the plaint and sought for the additional relief to declare that the Partition Deed dtd: 8.10.2002 registered in the office of the Sub-Registrar is null and void and not binding on him. Further the Plaintiff has stated in his amended plaint and as well as in oral evidence that in the alleged Partition Deed dtd: 8.10.2002 he has been shown as party No.8 to the said Partition Deed and it is surprise to note that his photograph has been misused by his sisters and affixed the same on the Partition Deed and also forged his signature in the said document and even though he has not executed the same and on that date he was on official duty at Pune. He was not in Bangalore on the date of registration of the document and it is 16 OS No.25440/2012 created and played fraud on him and it is not binding on him.
18. The Plaintiff in order to show that the alleged Partition Deed dtd: 8.10.2002 is created and his signature has been forged is concerned, he has produced the certified copy of of Partition Deed dtd:
8.10.2002 as per Ex.P.12 and also Certificate with regard to duty attendance at Ex.P.11.
19. Further the Plaintiff has also produced property extract of both properties as per Ex.P.1 to Ex.P.4. On careful perusal of Ex.P.1 to Ex.P.4 it is clear that Ex.P.1 & Ex.P.2 pertains to property extracts of Item No.1 of the Suit Schedule Property which is standing in the name of Vijaykumari and Udaykumari i.e., the Defendant No.4 & 5. Similarly, the Ex.P.3 & Ex.P.4 are Khata Certificate and Khata Extract of Suit Item No.2 property which is standing in the name of Sakkubai and Krishnabai, they are none other than the mother and step mother of the Plaintiff and Defendants. Further the Plaintiff has specifically contended that his signature has been forged in Ex.P.12 and as well as in Ex.D.2 Partition 17 OS No.25440/2012 Deed. However, in order to prove this fact, the Plaintiff has much relied upon his evidence, cross of of PW.2 and as well as cross-examination of CW.1.
20. No doubt, the Defendants in order to disprove the case of the Plaintiff has not adduced any oral evidence. But as discussed above, they got marked Ex.D.1 & Ex.D.2 through confrontation during the course of cross-examination of PW.1. As aforesaid, the Plaintiff has categorically stated in his evidence that though he has been shown as Party No.8 in Ex.P.1 and Ex.D.2, but his photograph has been misused by his sisters in affixing the same on it and also forged his signatures and thumb impression. At that time, he was on official duty in Pune. In this connection he relied on Ex.P.11. On perusal of Ex.P.11 it is clear that in this document it is mentioned that the Plaintiff was present from 1.10.2002 to 25.10.2002 and this document has been issued by East Officer for Commandant & MD by name Paramjit Singh on 4.12.2012 at the request of the Plaintiff. During the course of cross- examination, the counsel for the Defendants, PW.1 admitted that as per Ex.P.11 one cannot say that in 18 OS No.25440/2012 515 Army Base Workshop the person shown is working. Further admitted the suggestion that Ex.P.11 is issued as per his application and he has filed the said application after filing of this suit. Further stated that he had made the said application with the Office of Commandant. Further denied the suggestion that blue colour seal available on Ex.P.11 pertains to the Postal Department of Army Headquarters. The wordings shown in the said seal as "APO" refers to Army Post Office. Further admitted the suggestion that he had not produced any acknowledgment for having made the application to obtain Ex.P.11 and also not produced any acknowledgment or document that he has received Ex.P.11. Further denied the suggestion that the office issuing Ex.P.11 will not be known about the leave availed by him to leave the headquarters and also denied that he has got created Ex.P.11 for the purpose of this case. Anyhow, as discussed above, the author of this document is not examined by the Plaintiff to show that the Plaintiff was on duty from 1.10.2002 to 25.10.2002 as mentioned in Ex.P.11.
19 OS No.25440/201221. As discussed above, the Plaintiff has not produced the copy of the application submitted for issuing this Ex.P.11. The Defendants have seriously disputed the contents of this document, so it was the bounden duty of the Plaintiff to prove this document by examining the author of this document by referring the documents maintained in the office in which the Plaintiff was actually working. So on the basis of this document, this Court cannot hold that at the time of execution of Ex.P.12 & Ex.D.2 the Plaintiff was not present before the Sub-Registrar Office, Bengaluru.
22. The Plaintiff in order to show that his signature has been forged and the photograph has been misused by the Defendants in affixing the same on Ex.P.12 and Ex.D.2 etc., is concerned he got examined the then Sub-Registrar as PW.2. He stated before the Court that in the year 2002 registration of the documents were done manually and they were affixing the photograph of the parties to the document sought to be registered. Further he has brought the book containing the thumb impression and the signatures of the parties which were taken at the 20 OS No.25440/2012 time of registration of the respective documents. Admittedly, the said book contains the signature and thumb impression of the parties who were present at the time of registration of document and it is numbered as No.3327/2002-03, which contains 03 sheets and totally 08 parties. Further he has produced the said portion of the book containing 03 sheet which is marked as Ex.P.13. Further also produced the certified copy of the Sale Deed dtd:
Ex.P.14. Interestingly, the Defendants have not cross-examined this witness. Even the Plaintiff's Counsel himself has examined this witness. Admittedly, the evidence of this witness no way helpful to the Plaintiff to show that his signatures and thumb impression has been forged by the Defendants. On the other hand, Ex.P.13 & Ex.P.14 produced by this witnesses reflects the photographs, signatures and thumb impression of the Plaintiff. There is no suggestion put to this witnesses on behalf of Plaintiff that the Plaintiff was not personally present before the Sub-Registrar Office on 8.10.2002 and affixed his signature and made thumb impression etc. Therefore, though the Defendants have not cross-examined this witness, it does not 21 OS No.25440/2012 mean that signatures and thumb impression of Plaintiff were forged by the Defendants in Ex.P.12 and Ex.D.2. Hence, the evidence of PW.2 is noway helpful to the Plaintiff to prove his case, on the other hand it strengthen the contention of Defendants.
23. The Plaintiff has filed IA.No.7/2019 under Section 45 of Indian Evidence Act to refer the admitted signature and thumb impression of the Plaintiff with that of the disputed signatures of the Plaintiff under Ex.P.12 and thumb impression of Plaintiff under Ex.P.13 to the Directorate of Forensic Science Laboratory. The said laboratory has submitted its report and the same is marked as Ex.C.1.
24. On perusal of the said report, it is clear that the Directorate of SFSL, Madiwala clearly opined that the disputed signatures and as well as admitted signatures are all made by one and the same person. The counsel for the Plaintiff has filed objections to this report and also Deputy Director who has given opinion has been summoned and she has been examined as CW.1 by this Court. During the course 22 OS No.25440/2012 of cross-examination lead by counsel for Plaintiff, she admits the suggestion that she suppose to examine the signatures and thumb impression on the disputed and admitted documents as per order of this Court. Further also admits that the Court has furnished the signatures and LTM for verification. However, she has not examined the LTM furnished to her as she is not a LTM examiner. In this regard, she has not stated the reason for not examining the LTM In her report. Further she has also admitted the suggestion that she has not stated in her report the reason for not examining the LTM. Admittedly, though this Court has directed to examine signatures and LTM, but LTM has not been examined as she is not a LTM examiner. In this connection she has not stated anything in her report Ex.C.1.
25. Further the Counsel for the Plaintiff cross- examined this witness to show that the signatures found on Sale Deed not belongs to the Plaintiff. During the course of further cross-examination, this witness admitted that in K1 series signatures after the name there is initial 'D'. However, in A1 series signatures there is no such '.' or initial 'D'. Further, 23 OS No.25440/2012 admits the suggestion that below the signatures at A1 series there is horizontal line and 02 dots below the line and in K series signatures there is no such horizontal line and dots below the line. However, she categorically denied that there is dis-similarities in the initial 'D' in K series signatures. Further she specifically denied that there no difference in lines, strokes in alphabet 'D'. Further stated that there are no differences in lines and strokes in alphabet 'D', there are no such strokes on the K1 and K3 on the right side. Further admitted that there are differences in strokes in alphabet 'D' at the end of the signatures in K series signatures. Further denied the suggestion that, there is no stroke on the right side of K10 signature after initial 'D'. Further admitted the suggestion that there is no stroke on the right side of alphabet 'D' at signatures at K12. However, she specifically stated that there is no difference in strokes in alphabet D at signatures at K14. However, she specifically states there is no such difference in strokes of alphabet D at K8 and K15 signatures. Further she categorically denied that there is variation in strokes at signature K8 in respect of second letter 'B' and the same letter in signature K9.
24 OS No.25440/2012Further she admitted that there is variation in strokes in the second letter of the second part of the signature at K8 and K10. She admitted that there is continuity in K10 signatures in the second part of the signature after second letter. But no such continuity is available in K8 and 9 signatures. Further she admits the suggestion that there is tower 2 letter B and there is no such tower 2 letter B in K12. Further also admits the suggestion that the signing of the H letter of K2 is different from K1 & K3. Overall this witness has specifically denied the suggestion that last part of her opinion regarding nature and formation of signature shape, rhythm, positioning with respect to baseline, size and finishing and signature found in K1 to K32 comparing A1 to A6 and S1 to S3 and Q1 to Q3 are not correct and not of the same person.
26. The counsel for the Plaintiff tried to demonstrate from the evidence of this witness that the opinion formed by CW.1 on K1 to K32 and signatures A1 to A6 and S1 to S3 are not of the same person. However, this witness has categorically denied this contention. Admittedly, this witness is 25 OS No.25440/2012 the Deputy Director of FSL, Madiwala and after referring the matter by this Court to the FSL based on scientific examination of signatures she came to proper opinion. Even on seeing to admitted signatures and disputed signatures on naked eyes also this Court can easily say that the signatures marked as K1 to K16, K17 to K32, Question No.2 to 3, Q.1 to Q.3 and standard signatures marked as A1 to A6 and S1 to S3 are all written by one and the same person as opined by the Expert in Ex.C.1. It is true that there is some light variation in between admitted signatures and disputed signatures, but on this ground alone this Court cannot hold that the signatures found on Ex.P.12 and Ex.D.2 Sale Deeds are not of the Plaintiff. That apart, in normal course, there are chances of light variations of the signatures of same person from one signature to another signature. There is no reason by this witness to give false report in support of the Defendants. As discussed above, in naked eyes one can easily find that the admitted and disputed signatures are made by same person. As minor differences regarding stroke, curves and length of line and belts etc., in the signatures are not sufficient to come to conclusion 26 OS No.25440/2012 that the Defendants have forged the signature of Plaintiff on Ex.P.12, Ex.P.13, Ex.P.14 and Ex.D.2 to cheat the Plaintiff.
27. On careful perusal of entire evidence of CW.1 with her report Ex.C.1 it is clear that this witness has properly given her opinion about some slight difference regarding strokes, curves and length of line, belts in the signatures of Plaintiff by assigning proper reasons stating that admitted and disputed signature are made by same person. Such being the fact, this Court cannot say that this witness purposefully has given false report to support the Defendants.
28. It is an admitted fact that though the Plaintiff got appointed the Expert for examination of signature of the Plaintiff in dispute and admitted signature and his LTM verification. This witness has not given any opinion with regard to the admitted and disputed LTM of Plaintiff as she is not a LTM examiner. When CW.1 stated before the Court that she is not a LTM examiner it was open for the Plaintiff to send the disputed and admitted LTM to 27 OS No.25440/2012 the LTM examiner, but he has not taken any steps in this regard. If really, the Plaintiff was very much confident that his LTM has been forged by the Defendants, definitely, he could have been filed necessary application before the Court to refer his LTM to the LTM examiner. However, no such steps has been taken. This itself is clearly goes to show that the LTM found on admitted and disputed documents are one and the same.
29. It is pertinent to note that in Ex.D.2 Partition Deed the signature of Plaintiff has been identified by his brother-in-law by name Sri. G.S. Surendra Rao before the Sub-Registrar at the time of its execution. However, the PW.1 during the course of cross- examination stated that he has not signed on Ex.D.2 by affixing his left hand thumb impression and by affixing his photograph. Further stated that photograph found in this document belongs to him and he does not know whether Sub-Registrar before whom Ex.D.2 is executed has affixed his signature on the photograph of all the executents of Ex.D.2. Further this witness deposed that till today after institution of this suit also he has not asked if said 28 OS No.25440/2012 Surendra Rao or his sister Nirmala Bai about the existence and preparation of Partition Deed Ex.D.2. If really this witness did not sign on Ex.D.2 and not affixed his thumb impression on Ex.D.2, definitely he could have asked with his brother-in-law about the same. None questioning of the same itself will clearly goes to show that PW.1 himself was very much present at the time of execution of Ex.D.2 and affixed his signature and LTM on Ex.D.2.
30. The Plaintiff initially not prayed to declare that Partition Deed dtd: 8.10.2002 is null and void. However, according to admission of PW.1 he came to know about the alleged Partition Deed only in the year 2014 and on getting the Partition Deed he conducted investigation over it. However, according to order sheet in the year 2018 only the Plaintiff filed application for amendment of plaint for declaring the alleged Partition Deed as null and void and not binding on him. No prudent man kept quite for long 04 years after he came to know about the alleged creating of Partition Deed by forging his signatures and thumb impression. Admittedly, no sufficient materials placed by the Plaintiff to show that Ex.D.2 29 OS No.25440/2012 registered Partition Deed has been created behind his back on 8.10.2002 is null and void as contended in plaint para No.4(a).
31. It is pertinent to note that though the Plaintiff has seriously contended that Ex.D.2 has been fabricated and his signature and LTM has been forged, but the public authority only after verifying the identity of the persons took the signatures and LTM on the documents at the time of registration. Therefore, there is no such chance of forging his signatures and LTM in the presence of registering authority. As aforesaid, no suggestion has been put to the PW.2 stating that his signatures and LTM have been forged and he has not personally present before the Sub-Registrar Office at the time of execution of Ex.D.2. Further except producing Ex.P.11 no other documents have been produced to show that at the time of execution of Ex.D.2 he was on official duty in Pune. As aforesaid the executent of Ex.P.11 has not been examined and except producing the Ex.P.11 no other supporting documents have been produced. When there is serious allegation of forgery of his signatures and LTM it was bounden duty of the 30 OS No.25440/2012 Plaintiff to prove the same by placing sufficient materials. On the other hand, the materials produced by him are not sufficient to hold that the Ex.D.2 document is fabricated and his signatures and LTM were forged by the Defendants to knock off his right in the Suit Properties.
32. The Learned Counsel for the for the Plaintiff during the course of arguments submitted that the Plaintiff has elaborately cross-examining CW.1 elicited materials from the mouth of CW.1 herself that there are so many discrepancies found in the admitted and disputed signatures of Plaintiff with respect to formation of signatures, shape, rhythm, position with respect to baseline etc. Inspite of it in order to help the Defendants only falsely gave report in favour of the Defendants stating that the disputed and admitted signatures made by same person. Further argued that by clear reading of the Book of Handwriting Forensic by B.R. Sharma it is clearly stated that how the forged signature in the disputed documents can be identified from the admitted documents. The CW.1 though she has been directed to examine the alleged LTM of Plaintiff in disputed 31 OS No.25440/2012 documents with the admitted documents, but she did not examine the LTM, but not stated any reasons in her report for non-examination of LTM. Such being the fact, this Court can very well by seeing the disputed and admitted documents can easily come conclusion that the alleged signatures found in the Ex.D.2 not belong to the Plaintiff and those have been forged for depriving the Plaintiff from taking his legitimate share in the Item No.1 of the Suit Schedule Property.
33. As aforesaid, the heavy burden was casted upon the Plaintiff to establish that his signatures and LTMs have been forged by his sisters/Defendants to knock off his share in the item No.1 of the Suit Schedule Property. However, he has not proved the same from the evidence of CW.1. Even he has not taken any pain to refer his admitted and disputed LTMs to the LTM Examiner. As aforesaid, this Court also on perusal of disputed and admitted documents found that the signatures of the Plaintiff found in Ex.D.2 and Ex.P.12 is of the Plaintiff himself. Moreover, PW.2 has also produced Ex.P.13 & Ex.P.14 before this Court and stated that at the time of 32 OS No.25440/2012 registration of Ex.D.2 only parties of Ex.D.2 have affixed their signatures and LTM and accordingly Ex.P.13 i.e., the portion of book maintained in their office while registering the document and copy of the said documents have been produced and the said documents also sent to the expert and she has compared the signature of Plaintiff found on this documents with admitted documents and opined that there is no discrepancies in the signatures of the PW.1 in both the documents. Such being the fact looking to all the above discussion, this Court is of the opinion that the Plaintiff has miserably failed to prove that his signatures and LTMs have been forged by the Defendants to create Ex.D.2.
34. As aforesaid, it is already this Court came to conclusion that Plaintiff failed to establish the alleged fraud said to have been played by the Defendants by forging his signature and LTM on Ex.D.2 Partition Deed. On the other hand, from the document itself it could be gathered that the Plaintiff and Defendants have voluntarily executed Ex.D.2 and Plaintiff, Defendant No.1 to 3 & 6 have given consent to give entire Item No.1 Property in favour of 33 OS No.25440/2012 Defendant No.4 & 5 in the said Partition Deed which is registered in accordance with the provisions of the Registration Act which has got presumption under law. Hence, the Plaintiff maintain the suit for partition in respect of Item No.1 of Suit Schedule Property which is already settled in favour of Defendant No.4 & 5.
35. The Defendants have taken up contention in their written statement that the Plaintiff has not spend any money for construction of building in the Suit Schedule Item No.2 Property. On the other hand, the entire money for construction of building in the Suit Schedule Item No.2 Property has paid by the Defendants, as the Defendant No.3 has raised loan of Rs.5,00,000/- and paid the same to the tenants which was already leased out who was in occupation of one portion on the first floor and requested him to vacate and when he vacated allowed the Plaintiff to occupy the same and he is in occupation of the same with his family members, without spending any money has filed the suit for partition. In all tenants have paid lease amount of Rs.27,00,000/- and the same was spent for 34 OS No.25440/2012 construction and as and when the tenants decide to vacate they must be paid this amount. Since the Plaintiff has not spend any money for construction of building. Therefore, the Plaintiff has to pay the said amount of Rs.27,00,000/- before seeking partition in Item No.2 of the Suit Schedule Property.
36. Admittedly, in this suit, the Defendants have not led any oral evidence to substantiate these contention taken in the written statement. On the other hand, the Plaintiff has contended that he has contributed an amount of Rs.1,00,000/- for construction of building in Item No.2 of the Suit Schedule Property and contributed Rs.2,50,000/- for construction of building in Item No.1 of the Suit Schedule Property. In this regard, he has obtained loan etc. However, in this regard also, he has not produced any documents before the Court. Even he admitted in the cross-examination that he does not know as to what is the amount of expenditure incurred for construction of building in Item No.2 of the Suit Schedule Property. Such being the fact contribution of the money by the Plaintiff for construction of building in Item No.1 & 2 of the Suit 35 OS No.25440/2012 Schedule Property is also in doubtful. On the other hand, the Defendants have also not produced any materials to show that the Plaintiff is liable to pay his share of amount of Rs.27,00,000/- before seeking partition in the Suit Properties. Hence, Issue No.3 and Additional Issue No.1 are answered in the Negative.
37. Issue No.2:-
As aforesaid the Plaintiff has filed this suit for the relief of partition and separate possession of his 1/7th share in the Suit Schedule Properties by metes and bounds.
38. As aforesaid, the Plaintiff has failed to establish that the registered Partition Deed dtd:
18.10.2002 is null and void and not binding on his share in the Suit Schedule Properties etc. However, though it is made clear that the building has been constructed in Item No.2 of the Suit Schedule Property by the Defendants, but they have not placed any records to show how much amount actually they have invested for construction of building over the same. Anyhow, the Defendants have not disputed 36 OS No.25440/2012 that originally the Suit Schedule Properties were joint family properties Plaintiff and Defendants. When there was already registered Partition Deed has been effected in respect of Item No.1 of the Suit Property and when the Plaintiff and other Defendants have agreed to give Item No.1 of the Schedule Property in favour of Defendant No.4 & 5 and when the Defendant No.4 & 5 became absolute owner of the Item No.1 of the Suit Property by virtue of Ex.D.2, Ex.P.12 the Plaintiff is not entitled for any share in Item No.1 of the Suit Schedule Property. But he is entitled for share only in respect of Item No.2 of the Suit Schedule Property.
39. It is an admitted fact that both Plaintiff, Defendant No.1 to 6 are the children of Late Dashrathrao who died intestate on 12.5.1972 and so also another brother of the Plaintiff and Defendants by name Satyanarayanarao died as bachelor. Further it is also admitted fact that the mother of Plaintiff and Defendants also died intestate. Therefore, according to Section 8 of Hindu Succession Act the Plaintiff and Defendant No.1 to 6 are entitled 37 OS No.25440/2012 for 1/7th share each in the Suite Schedule Item No.2 Property by metes and bound.
40. When there was no legal partition has been effected between the Plaintiff and Defendant No.1 to 6 in respect of Item No.2 of the Suit Property, definitely the Plaintiff is entitled for 1/7th share over the same by metes and bounds. Hence, I answer Issue No.2 Partly in the Affirmative.
41. Issue No.4:-
In view of the findings on the above issues, the suit of the Plaintiff deserves to be dismissed. Hence, I proceed to pass the following:-
ORDER The Suit of the Plaintiffs is hereby decreed in part.
The Plaintiff is entitle for 1/7th share in Item No.2 of Suit Schedule Properties.
The suit of the Plaintiff for the relief of partition and separate possession in respect of Item No.1 of Suit Schedule Properties is hereby dismissed.38 OS No.25440/2012
In so far as the prayer of the Plaintiff for declaring the Partition Deed dtd: 8.10.2021 is null and void is also hereby dismissed.
Draw preliminary decree
accordingly.
Having regard to the relationship
of the parties, there is no order as to costs.
The Plaintiff is directed to take necessary steps under Order XX Rule 18 of CPC to draw final decree. In view of the Judgment in Hon'ble Apex Court reported in 2022 livelaw (SC) 549 (Kattukandi Edathil Krishnan V/s Kattukandi Edathil Valsan & Ors.) The office to register FDP on the basis of above preliminary decree and put up the case on : 21.10.2024.
(Dictation given to the Stenographer, typed by her, corrected and then pronounced by me, in the open court on this the 19th day of September, 2024.) [Sri. Sreepada N] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73).
39 OS No.25440/2012SCHEDULE Item No.1 All that piece and parcel of the properties situated in Seppings Road having Property No.2, Seppings Road, K.No.5th Street, Bangalore, consists of ground, first and second floors, having 5 portions measuring East to West 60 feet and North to South 28 feet and bounded by:
East by : Private Property. West by : West by Private Property and Road; North by : North by Parse Hospital;
South by : South by Private Property.
Item No.2 All that piece and parcel of property bearing No.20K, No.51, Street Cross, Seppings Road, Bangalore-560 001, having 3 portions, measuring East to West 60 Feet and North to South 28 Feet:
East by : Private Property.
West by : Vindo Kumar Property.
North by : Sukku Bai Property.
(Porsa Hospital)
South by : South by Private Property.
(Mudaliar Properties) 40 OS No.25440/2012 ANNEXURES LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Babu Sudharshan.
PW.2: Senior Sub-Registrar of Indiranagar.
CW.1: Dr. Kumuda Rani.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 to Ex.P.4 : 2 Khata Certificates and Khata Extracts.
Ex.P.5 : Encumbrance Certificate.
Ex.P.6 : Death extract of Dashratha Rao.
Ex.P.7 : Death extract of Krishnabai.
Ex.P.8 : Death extract of Sakkubai.
Ex.P.9 : Death extract of V. Sathyanarayanarao.
Ex.P.10 : Ration Card.
Ex.P.11 : Certificate with regard to duty attendance.
Ex.P.12 : Certified copy of Partition Deed
dtd:8.10.2002.
Ex.P.13 : Portion of book containing 3 sheets contains
the signature and thumb impression of parties who were present at the time of registration.
Ex.P.13(a) : Certified copy of book.41 OS No.25440/2012
Ex.P.14 : Certified copy of document registered as document No.3327/2002-03.
Ex.C.1 : FSL Report.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
None.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D.1 : Copy of Legal Notice dtd: 7.2.2012.
Ex.D.2 : Original Partition Deed dtd: 8.10.2002.
[Sri. Sreepada N] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)