Bangalore District Court
Shri Madhu vs Smt.Muniyamma on 18 March, 2017
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 18th day of March 2017.
O.S.No.457/2012
PLAINTIFFS:- 1. Shri Madhu,
S/o.Perumal,
Aged about 22 years,
2. Shri Madhan,
S/o.Perumal,
Aged about 21 years,
3. Shri Jagan,
S/o.Perumal,
Aged about 20 years,
All are R/at No.559,
10th 'C' Main Road,
Rajajinagar 6th Cross,
Bangalore - 560 010.
(By - Sri.V.Viswanath, Adv.)
v.
DEFENDANTS:- 1. Smt.Muniyamma,
W/o.Late M.Annamalai,
Aged about 67 years,
R/at No.559, 10th Cross,
'C' Main Road, 6th Block,
2 O.S.No.457/2012
Rajajinagar,
Bangalore - 560 010.
2. Sri.A.Narayanaswamy,
S/o.Late Annamalai,
Aged about 52 years,
No.6/37, D-18, 6th Cross,
6th Block, Rajajinagar,
Bangalore - 560 010.
3. Shri Perumal,
S/o.Late Annamalai,
Aged about 47 years,
R/at No.559, 10th Cross,
'C' Main Road, 6th Block,
Rajajinagar,
Bangalore - 560 010.
4. Smt.Sathyaveni,
W/o.Narayanaswamy,
Aged about 48 years,
No.6/37, D-18, 6th Cross,
6th Block, Rajajinagar,
Bangalore - 560 010.
5. Smt.N.S.Mamatha,
W/o.Vinod,
D/o.Narayanaswamy,
Aged about years,
6. Smt.Vinutha,
W/o.R.Vijayakumar,
D/o.Narayanaswamy,
Aged about years,
Defs.5 & 6 are C/o.No.6/37,
D-18, 6th Cross,
6th Block, Rajajinagar,
Bangalore - 560 010.
(D1 & D2 - Sri.Suresh.P. Adv.
D3 - Sri.C.Babu
3 O.S.No.457/2012
D4 - Sri.M.R.Balajee, Adv.
D5 & D6 - Shridhar.D.Naik Adv.)
Date of institution of the suit : 11.01.2012
Nature of the suit : Partition, Declaration &
Injunction
Date of commencement of : 30.01.2016
Recording of the evidence
Date on which the Judgment : 18.03.2017
was pronounced
Total Duration : Years Months Days
05 02 07
(BAILUR SHANKAR RAMA)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
Bengaluru.
JUDGMENT
This is a suit filed by the plaintiffs against the defendants for partition, declaration, injunction and costs.
2. The brief facts as averred in the plaint are that:-
Sri.Annamalai and his wife - defendant No.1 - Smt.Muniyamma had 2 sons namely Sri.Narayanaswamy and Sri.Perumal, who are defendants 2 and 3 in this suit. 4 O.S.No.457/2012 The defendant No.4 is the wife of Sri.Narayanaswamy. The plaintiffs 1 to 3 are the sons of defendant No.3 - Sri.Perumal. Children of Sri.Narayanaswamy got themselves impleaded as defendants 5 and 6. The plaintiffs submit that they constitute members of Hindu undivided joint family and joint owners and possessors of the suit properties - Item Nos.1 to 3. The propositus - Sri.Annamalai has purchased suit Item No.1 property i.e., site bearing No.559, measuring 30' x 40' from BDA through a registered Sale Deed dated 11.08.1980. Katha was transferred in his name. He has constructed a residential house consisting of ground, first, second and third floors. The said Sri.Annamalai passed away on 13.09.2004, leaving behind the plaintiffs and defendants being his Class-I heirs. Sri.Annamalai and defendants 2 & 3 were engaged in mason work, having sufficient income. Sri.Annamalai, defendants 1 and 3 have supported defendant No.2 -
Sri.A.Narayanaswamy to start business of lathe machine out of joint family income. From out of the income derived from mason work and also business of lathe machine, they together put up construction in suit Item No.1 property i.e., 5 O.S.No.457/2012 first, second and third floors. There are 5 RCC roofed houses, 2 shops in the ground floor and 4 small residential houses in the third floor. Joint family members are using one residential portion in the ground floor, shops and other portions were let out. By leasing the same huge amount was derived and also receiving rental income. After the death of Sri.Annamalai, defendant No.2 being the eldest son started to look after and managing the properties. The defendant No.3 is an uneducated person and engaged in mason work for his livelihood. The plaintiffs submit that by utilizing the income of lathe machine business, rentals from suit Item No.1 property and also income contributed by defendant No.3 out of mason work in the hands of defendant No.2, as he was the Manager of the family, suit Item Nos.2 and 3 properties were purchased. Thereafter, defendant No.2 started neglecting defendant No.3 and his children. The plaintiffs demanded their share. The defendant No.2 started to proclaim that only suit Item No.1 property is the joint family property and suit Item Nos.2 and 3 properties are separate properties acquired by him in the name of his wife - defendant No.4 and they don't have 6 O.S.No.457/2012 any right in suit Item Nos.2 and 3 properties. Further, he proclaimed that defendant No.2 filed suit O.S.No.2284/2009 against the defendants 1 and 3 in respect of suit Item No.1 property and compromise decree was passed. As per the market value is fixed to the share of defendant No.2 he has deposited in the court Rs.26,00,000/- for the purpose of retaining the property for himself and defendant No.3 did not pay any amount, as such he is the owner of suit Item No.1 property. The plaintiffs submit that they don't have any knowledge of such proceedings and in the said suit Item Nos.2 and 3 properties have not been included. The compromise between defendants 1 to 3 in the said suit dated 31.03.2009 was came to their knowledge only after they secured the copies. They are no way connected to the said compromise. As such, it is not binding on their rights. Further they got amended the plaint that after written statement was filed by defendant No.2 they came to know that Court Commissioner has executed the registered Sale Deed in favour of defendant No.2 in respect of suit Item No.1 property on 20.08.2013 during the pendency of suit. The defendant No.2 with a malafide intention to grab Item 7 O.S.No.457/2012 No.1 property has manage to get compromise decree and executed the same, as such the said Sale Deed is not binding on the rights of the plaintiffs. On 10.12.2011, the plaintiffs have demanded for partition of their legitimate share in the suit schedule properties, that was denied by defendant No.1. Hence, the suit.
3. After the service of suit summons, defendants 1 and 2 have appeared before court through their advocate - Sri.P.Suresh, defendant No.3 through his advocate - Sri.C.Babu, defendant No.4 through her advocate - Sri.M.R.Balajee and defendants 5 and 6 through their advocate - Shridhar.D.Naik. The defendant No.2 has filed written statement, admitting the plaint genealogy and relationship and denied that the plaintiffs and defendants are members of the Hindu undivided joint family, joint owners and in joint possession of all the suit schedule properties. The defendant No.2 contends that suit Item No.1 property was purchased by the father of defendant No.2 - Sri.Annamalai from BDA in the year 1980 and he has only put up ground floor. The defendant No.2 was doing business, having sufficient income, had contributed in 8 O.S.No.457/2012 construction of first, second and third floors. Suit Item No.2 and 3 properties are not the joint family properties, those properties are the self acquired properties purchased by him in the name of his wife - Smt.Sathyaveni through a registered Sale Deed dated 11.03.2004. Suit Item No.3 property situated behind Minerva Mills, K.B.Temple Street was purchased by defendant No.4 by utilizing the financial support given from her parents through registered Sale Deed dated 01.12.2004. Therefore, suit Item Nos.2 and 3 properties are not available for partition. Sri.Annamalai was not having sufficient income of his own. Therefore, defendant No.2 has contributed money to put construction in suit Item No.1 property. He admits that Sri.Annamalai expired on 13.09.2004. He has denied the allegation that defendant No.3 was doing mason work and contributed money in the hands of defendant No.2, by utilizing it improvements were made in suit Item No.1 property and also purchased suit Item Nos.2 and 3 properties from the lease amount derived and rentals recovered from tenants from suit Item No.1 property. He never acted as Joint Family Manager or Kartha after the death of Sri.Annamalai. 9 O.S.No.457/2012 Since 1991 he has been residing separately, doing separate business and separated from joint family. As defendant No.2 has earned independently from his business from the year 1991, without anybody's support in the year 1993-94 he has constructed first floor in suit Item No.1 property. Therefore, except the blood relationship, he doesn't have any other relationship with other members of the family. Therefore, all the allegations made by the plaintiffs are specifically denied by him. Except Item No.1 property there was no other properties available for partition. In fact, defendant No.1, who is the mother of the defendants 2 and 3, is looking after suit Item No.1 property. Therefore, the plaintiffs are required to approach defendant No.1 i.e., their grand-mother, if they claim any share in suit Item No.1 property. The defendant No.2 submits that he has filed O.S.No.2284/2009 against defendants 1 and 3 in respect of suit Item No.1 property for partition. They contested the suit and finally at the intervention of the elders and well wishers it was ended in the compromise. The compromise petition has been filed in the Mediation Centre on 24.09.2010. The defendant No.2 has not committed any 10 O.S.No.457/2012 mistake in obtaining the compromise decree in respect of his share in suit Item No.1 property. Therefore, the allegations made by the plaintiffs are so made only to file this suit. As per the said compromise, defendants 2 and 3 have to pay an amount of Rs.26,00,000/- and to get it registered the Sale Deed or Relinquishment Deed in respect of suit Item No.1 property. But inspite of the decree passed, defendant No.3 has failed to act upon as per the decree. Left with no option, defendant No.2 filed FDP.No.127/2011 on the file of CCH-39 by depositing the amount of Rs.26,00,000/-. Inspite of service of notice, defendant No.3 did not appear and the said matter is still pending. Therefore, all the allegations made by the plaintiffs against defendant No.2 in this regard is false and baseless. The plaintiffs have filed this suit at the instance of their father - defendant No.3 to make unlawful gain and to harass defendant No.2. Therefore, the compromise decree entered into between defendant No.2 with defendants 1 and 3 dated 31.03.2009 is binding on the parties. According to the compromise petition, defendant No.2 is entitled to get 1/3rd share in suit Item No.1 property. As suit Item Nos.2 11 O.S.No.457/2012 and 3 properties are the self acquired properties of the defendant No.2 and his wife - defendant No.4, not liable for partition and the plaintiffs have no right to claim partition in the said properties. There is no cause of action to file the instant suit. In view of the past misunderstanding just to wreck vengeance the plaintiffs have filed this suit and prayed that suit be dismissed with costs.
4. In the additional written statement filed by the defendant No.2, he contends that through the process of the court subsequently through Court Commissioner suit Item No.1 property Sale Deed was got executed in the name of defendant No.2. He has further contended that by virtue of the Sale Deed executed in his favour, katha was changed in his name and he has paid upto date tax to the BBMP. He has filed eviction suit against the tenants, who are occupied in suit Item No.1 property as he is absolute owner of the property. As such, suit Item No.1 property is also not available for partition and prayed that suit be dismissed with costs.
12 O.S.No.457/2012
5. The children of defendant No.2 namely defendants 5 and 6 have filed separate written statement, supporting the contention of defendant No.2. They contended that defendant No.2 after his marriage, already separated from the joint family in the year 1991 itself and was doing his independent business, out of his own earnings and with the assistance of the bank loan suit Item Nos.2 and 3 properties were purchased. They further contended that in O.S.No.2284/2009 filed by defendant No.2, it was ended in compromise in Mediation Centre on 24.09.2010. The defendant No.2 has deposited Rs.26,00,000/- in the court for retaining the property to him. As defendant No.3 did not chosen to pay the amount in FDP.No.127/2011 through the process of the court Sale Deed was executed in the name of their father in respect of suit Item No.1 property on 20.08.2013. As such, all the properties are not liable for partition and sought for dismissal of the suit filed by the plaintiffs.
6. The defendant No.1 filed the written statement admitting the relationship and denied all the allegations made by the plaintiffs. She submits that her husband - 13 O.S.No.457/2012 Sri.Annamalai acquired vacant site in suit Item No.1 property from BDA in the year 1972 itself and by obtaining the loan, constructed a house - ground floor and first floor. By letting the first floor at that time he was getting rental of Rs.150/- per month. She contends that suit Item Nos.2 and 3 properties are not the joint family properties. The defendant No.2 has purchased suit Item Nos.2 and 3 properties out of his own earnings by doing independent business. Since the year 1991, he started residing separately, had purchased suit Item No.2 property. Suit Item No.3 property is purchased by her daughter-in-law - Smt.Sathyaveni with the monetary help given by her parents and also little contribution from defendant No.2. Therefore, suit Item Nos.2 and 3 properties are not liable for partition. She has admitted filing of O.S.No.2284/2009 for partition by defendant No.2 and compromise decree arrived at and denied all the allegations made by the plaintiffs. There is no cause of action to file the suit and she prayed that suit be dismissed with costs.
7. The defendants 3 and 4 have not filed any written statement.
14 O.S.No.457/2012
8. Basing on the rival pleadings the following issues are framed:-
ISSUES
1. Whether the plaintiffs prove that, the suit schedule properties are still joint family properties?
2. Whether the plaintiffs prove that, the compromise decree in O.S.No.2284/2009 is not binding on them?
3. Whether the plaintiffs are entitled for reliefs as sought for?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiffs prove that the Sale Deed dated 20.08.2013 executed by defendant No.1 and Court Commissioner in favour of defendant No.2 in respect of Item No.1 of the suit schedule property is not binding on the share of the plaintiffs?
2. Whether defendant No.2 proves that he has become the owner of Item No.1 of the suit schedule property on the basis of the Sale Deed dated 20.08.2013 executed by defendant No.1 and Court Commissioner in his favour?
15 O.S.No.457/2012
9. The first plaintiff got himself examined as PW-1 and got marked Ex.P1 to P16 and closed his side. The defendant No.2 got himself examined as DW-1 and defendant No.1 got herself examined as DW-2 and got marked Ex.D1 to D27 and closed their side.
10. After the closure of the evidence, arguments were heard.
11. My answers to the above issues are as under:-
Issue No.1:- In the negative.
Issue No.2:- In the negative.
Issue No.3:- In the negative.
Addl. Issue No.1:- In the negative.
Addl. Issue No.2:- In the affirmative.
Issue No.4:- As per final Order.
For the following:
REASONS
12. Issue Nos.1 and 2 & Additional Issue Nos.1 and 2:-
For the sake of convenience these issues are taken up together for discussion to avoid repetition of facts and evidence.16 O.S.No.457/2012
13. It is admitted fact that the propositus of the family is one Sri.Annamalai, had 2 sons namely Sri.Narayanaswamy and Sri.Perumal i.e., defendants 2 and
3. The defendant No.1 is the wife of Sri.Annamalai. The defendant No.4 is the wife of defendant No.2. The defendants 5 and 6 are the children of defendant No.2 and all the plaintiffs are the children of defendant No.3 - Sri.Perumal. The admitted genealogy as per Ex.P1 is as follows:-
Annamalai (Died) Muniyamma ........................................................
Narayanaswamy Perumal
Sathyaveni Rajeshwari
.............................. ......................................
Mamatha Vinutha Madhu Madan Jagan
The relationship is admitted. The contention of the plaintiffs is that, suit Item No.1 property was purchased by their grand-father - Sri.Annamalai from BDA and he had put up construction and has been residing in the said property along with his children. Sri.Annamalai and his 2 sons were engaged in mason work and by utilizing the joint family 17 O.S.No.457/2012 nucleus, rentals and lease amount received from suit Item No.1 property, defendant No.2 started lathe machine business and utilizing the income from the joint family nucleus suit Item Nos.2 and 3 properties were purchased in the name of defendant No.4 i.e., wife of defendant No.2. Therefore, all the properties are the joint family properties of the plaintiffs and the defendants and they are in joint possession of the same. Therefore, the plaintiffs have filed this suit for partition in all the items of the properties.
14. The contesting defendant is defendant No.2, he claims that though father had purchased vacant site i.e., suit Item No.1 property from BDA, he was not having sufficient income of his own to put up 3 storied building.
Since 1991 he has been residing separately and started independent business in lathe machine, he never acted as Kartha or Manager of the family. Till the death, Sri.Annamalai was receiving rentals from the tenants in suit Item No.1 property and after his death, his wife - defendant No.1 is looking after. It is his case that, as he had sufficient independent income, he had constructed first, second and third floors in suit Item No.1 property. He himself has 18 O.S.No.457/2012 purchased suit Item No.2 property in the name of his wife - Smt.Sathyaveni i.e., defendant No.4 by availing the loan from the bank and utilizing his self earned money, as such it is the self acquired property. Likewise, suit Item No.3 property was purchased in the name of defendant No.4 with the financial assistance of her parents and little contribution from out of his self earnings. As such, suit Item Nos.2 and 3 properties are the exclusive self acquired properties of defendants 2 and 4, as such not available for partition.
15. As regards suit Item No.1 property is concerned, it is his case that he has filed O.S.No.2284/2009 seeking partition in suit Item No.1 property against his mother and brother. Before the Mediation Centre, matter was settled amicably and as per the terms agreed, as defendant No.3 - Sri.Perumal did not come forward to pay the amount, in order to retain the said property for himself, defendant No.2 had deposited Rs.26,00,000/- in FDP.No.127/2011 and also by appointing Court Commissioner, Sale Deed was executed in his favour and on the strength of the Sale Deed, suit Item No.1 property was transferred in his name. By making payment of taxes to BBMP, he has been enjoying the 19 O.S.No.457/2012 property. By filing the suit against the tenants, he has exercised his absolute right of ownership, evicted them and took possession of the premises. Therefore, suit Item No.1 property is also not liable for partition. On the above said grounds, in the evidence he has sought for dismissal of the suit. His evidence is being supported by the evidence of DW.2 - his mother - Smt.Muniyamma and also in the written statement by filed his children - defendants 5 and 6.
16. Suit Item No.1 property i.e., house property bearing No.559, measuring 30' x 40', having ground, first, second and third floors, totally 35 square built up area, situated at 10th C Main Road, 6th Block, Rajajinagar, Bangalore - 560 0010, bounded on:
East by: No.18 property;
West by: Road;
North by: No.7/21 property and
South by: No.7/21 property.
The site was allotted in favour of father of DW.1 - Sri.Annamalai as evidenced certified copy of Absolute Sale Deed dated 11.08.1980 as per Ex.P12. It was a vacant site and katha was transferred in his name. DW.2 - 20 O.S.No.457/2012 Smt.Muniyamma w/o.Sri.Annamalai, in her evidence has categorically stated that her husband obtained loan and built up the ground floor and first floor and he has repaid the loan instalments upto 1995. She has deposed that her son - DW.1 - Sri.Narayanaswamy separated from the family in the year 1991 and started independent lathe machine business and earned money. While constructing the first floor Sri.Narayanaswamy also contributed his income. It is the evidence of DW-1 that he has paid Rs.1,00,000/- then, for construction of the house namely second floor and third floor was constructed by him. The evidence of the plaintiffs that in the ground floor shop premises were there and second floor and the third floors were let out to the tenants and leased to some of the tenants, huge lease amount and rentals recovered from the tenants was in the hands of DW-1 and their father - Sri.Perumal by doing mason work used to give money in the hands of DW-1 as he has managing the property, by utilizing the same the construction was made.
17. Much reliance is placed on the pleadings in written statement para No.8 of defendant No.1, wherein in 21 O.S.No.457/2012 page No.13 he has stated that except suit Item No.1 property there was no other properties were available for partition. Therefore, he admits that suit Item No.1 property was the joint family property derived from Sri.Annamalai. Therefore, according to the plaintiffs that is available for partition. At this juncture, learned counsel for the plaintiffs relied much on the admission in the cross-examination of DW.2 - Smt.Muniyamma, though she has supported the case of DW-1 by stating that since 1991 DW-1 started residing separately, doing separate business. But she has stated that she doesn't know the address of DW-1 and what business he was doing and other particulars, even Ration Card, Voters List, other authenticated documents are not produced to show DW-1 residing separately since 1991.
18. The learned counsel relied on the evidence recorded in HRC.No.113/2015, which was filed by Sri.Narayanaswamy against the tenant - Sri.Karunakaran as evidenced by Ex.P13, wherein in the cross-examination he has stated that, his father passed away in the year 2004, Sri.Narayanaswamy and his family were residing separately in the same building and so also his brother - Sri.Perumal. 22 O.S.No.457/2012 His father - Sri.Annamalai was also staying separately. He has not produced any documents to show that they all residing separately. He has pointed out that in the said HRC Petition in the evidence affidavit the address of his residence is mentioned is the suit schedule Item No.1 property. Therefore, according to him, the say of DWs.1 and 2 that defendant No.2 - Sri.Narayanaswamy was doing separate business and since 1991 he was separately resided, is a false statement made, infact he resided in the joint family in suit Item No.1 property. Here, DW-2 in her cross-examination categorically stated that after the death of her husband, her younger son - defendant No.3 - Sri.Perumal was looking after the family and maintenance and her son - Sri.Narayanaswamy had resided separately since 1991. She has denied the suggestion that till 2009 Sri.Narayanaswamy was resided with the mother in the joint family.
19. Of course, in the cross-examination some discrepancies have come in the evidence of DW-2. She is an illiterate old lady. The plaintiffs cannot take advantage of those discrepancies to their convenience. The entire 23 O.S.No.457/2012 evidence as a whole need be appreciated to arrive at a conclusion that whose case is probable. She has categorically denied the suggestion that in the suit schedule property, herself and 2 sons and plaintiffs are having share. The last sentence in her cross-examination in page 12 of the DW-2 was made much by the learned counsel for the plaintiffs, but to the specific question put to the witness that:
"Can you say all the 3 items in the suit schedule property to whom it belong and who are having right over it, witness states that both of my sons - Sri.Narayanaswamy and Sri.Perumal having right in it".
Therefore learned counsel for the plaintiffs urged that suit Item Nos.2 and 3 also purchased from joint family nucleus derived out of plaint Item No.1 property in the hands of the Sri.Narayanaswamy and as defendant No.3 - Sri.Perumal was doing mason work, used to give money in the hands of Sri.Narayanaswamy. Therefore, even though they were purchased in the name of defendant No.4 - Smt.Sathyaveni w/o.defendant No.2, those properties are also the joint family properties, wherein the plaintiffs are having share. 24 O.S.No.457/2012 Here, at once together question was put to the witness, she has answered in that manner. But throughout in the cross- examination and in her pleadings and in chief examination, she has stated that suit Item Nos.2 and 3 properties are the self acquired properties of defendant No.4, not available for partition. It is only suit Item No.1 property which was the property left behind by her husband, wherein her 2 sons are having share in it. Here, the evidence of DW-1 and the documentary evidence produced being supported by the pleadings of the defendants 1, 5 and 6. If DW-1 proves before the court that suit Item Nos.2 and 3 properties were purchased by him in the name of his wife, utilizing his own self earnings, by raising loan and from financial help given to Smt.Sathyaveni by her parents and those properties are the exclusive properties of defendant No.2 and his wife - defendant No.4. Question of neither Sri.perumal nor his sons claiming share in the said properties doesn't arise at all. Therefore, initial burden is on the plaintiffs to establish that suit Item Nos.2 and 3 properties were acquired in the name of defendant No.4 from out of utilizing the joint family nucleus.
25 O.S.No.457/2012
20. The positive case made by the defendants 1, 2, 4 to 6 that, since 1991 defendant No.2 started separate business and residing separately and out of his independent income, purchased the properties in the name of his wife and those properties are the self acquired properties, he never acted as manager of the joint family, never received any rentals from the tenants or lease amount from the tenants. According to the evidence of DW-1, his mother was looking after suit Item No.1 property and defendant No.3 - Sri.Perumal was collecting the rentals, that is what deposed by DW-2 in her evidence. She has categorically supported the case of defendant No.2 - Sri.Narayanaswamy that he has never acted as a Joint Family Manager and since 1991 he is separately residing and doing business. Even if he has not produced any documents such as Ration Card, Voters Identity Card to show that he is residing separately in different address, but evidence goes to show that he has been residing separately and the plaintiffs have not given sufficient evidence to show that he was acted as Manager of the Joint family and used to collect rentals from the tenants. On the contrary, the documentary evidence produced by the 26 O.S.No.457/2012 plaintiffs reveal that it is defendant No.3 - Sri.Perumal had executed Rent Agreement to the tenants and used to collect rentals and his son - Sri.Jagan also executed Rent Agreement and used to collect rentals and in the ground floor excluding the shop premises, Sri.Perumal and his sons, wife and children are residing, has come in the evidence. Therefore, even if in HRC case defendant No.2 has showed his residential address in suit Item No.1 property, that is only because in O.S.No.2284/2009 filed by him in respect of suit Item No.1 property for partition against his mother and brother - Sri.Perumal and before Mediation Centre admittedly it was compromised, a decree was drawn on 31.03.2009, subsequently in FDP.No.127/2011 by appointing Court Commissioner, Sale Deed was got executed in his favour and katha was got changed in his name, documents are produced to that effect, he has proceeded against the tenants by terminating their tenancy and recovered possession by evicting them. In the evidence in the HRC case he has showed his place of residence in suit Item No.1 property, doesn't in any way takes away his defence that since 1991 by doing separate 27 O.S.No.457/2012 business in second hand machineries and tools, he has resided separately along with his wife and children, that is supported by the evidence of his own mother - DW.2.
21. Therefore, it is necessary to appreciate the evidence brought on record to ascertain that, is it justifiable by the plaintiffs to contend that suit Item Nos.2 and 3 properties are also acquired by utilizing joint family funds and those properties are also joint family properties available for partition. Admittedly, Sri.Annamalai died on 13.09.2004. Suit Item No.1 property belonged to Sri.Annamalai, as it was his self acquired property. If his son - Sri.Narayanaswamy had contributed in construction of first, second and third floors, it makes no difference. It can be said that it was the absolute property left behind by Sri.Annamalai on the date of his death. As such, his wife and 2 sons succeeded to the same as his Class-I legal heirs.
22. Now, suit Item No.2 property i.e., house property bearing No.7/20, present Corporation No.7/20/4, measuring East to West:40 feet and North to South:15 feet, consisting of ground and first floors constructed in Site No.20, situated 28 O.S.No.457/2012 at K.B.Temple Street, 6th Block, Rajajinagar, Bangalore, bounded on:
East by: Road;
West by: Site No.548;
North by: Site No.558 and
South by: Site No.560,
which is standing in the name of defendant No.4 - Smt.Sathyaveni and it was purchased under the registered Sale Deed - Ex.D4 (Ex.P2) dated 11.03.2004 from one Sri.Ravindran Pillai S/o.Parameshwaran Pillai for a consideration of Rs.4,80,000/-. On the date of purchase, Sri.Annamalai was alive.
23. Subsequent to the death of Sri.Annamalai, again suit Item No.3 property i.e., house property bearing Municipal No.6/37, present Corporation No.6/37/D/18, measuring East to West:40 feet and North to South:15 feet, totally 600 square feet, consisting of ground and first floor situated at Behind Minerva Mills, K.B.Temple Street, 6th Block, Rajajinagar, Bangalore, bounded on:
East by: Road;
West by: Property No.26;
29 O.S.No.457/2012
North by: No.23 remaining portion of
Punnyakoti property and
South by: Property No.22,
which was purchased in the name of defendant No.4 - Smt.Sathyaveni through a registered Sale Deed - Ex.D3 (Ex.P11) dated 01.12.2004 from Sri.R.Selvam and his wife
- Smt.Amudha for a consideration of Rs.3,00,000/-.
24. Therefore, the case of DW-1 and his wife is based on Ex.D3 and D4 - respective Registered Sale Deeds in respect of suit Item Nos.2 and 3 properties, those properties were purchased in the name of Smt.Sathyaveni by utilizing his self earned money and also obtaining loan from the bank and financial assistance given to defendant No.4 from her parents. As such, those properties are the self acquired properties of defendants 2 and 4.
25. Ex.P4 is the Katha Certificate and Ex.P5 is the Katha Extract, pertaining to Item No.3 property, issued from BBMP shows that it is standing in the name of Smt.Sathyaveni. Ex.P6 is the receipt relating to development charges paid to BBMP by Sri.Annamalai in respect of suit Item No.1 property during his lifetime on 30 O.S.No.457/2012 01.07.2002. Ex.P7 & P8 are the nil encumbrance certificates pertains to suit Item No.2 property, standing in the name of defendant No.4. Ex.P9 & P10 are the Katha Certificate and Katha Extract pertains to suit Item No.3 property, issued by BBMP, evidencing that suit Item No.3 property is standing in the name of defendant No.4. Ex.D11 & D12 are the tax paid receipts in respect of suit Item Nos.2 and 3 properties by Smt.Sathyaveni. Ex.D14 & D15 are the encumbrance certificates, pertains to suit Item Nos.2 and 3 properties. Therefore, one thing is clear that suit Item No.2 and 3 properties are standing in the name of defendant No.4 - Smt.Sathyaveni and she has been making payment of taxes to BBMP and she is in possession of the same, stands established.
26. In the cross-examination of PW-1, he admits that DW.1 - Sri.Narayanaswamy was doing the business of second hand machines. He has further admitted that after Sri.Narayanaswamy went out of the house, PW-1 and his father - Sri.Perumal and his grandmother i.e., DW-2 - Smt.Muniyamma were residing in suit Item No.1 property and his grandmother was taking the rent amount. That 31 O.S.No.457/2012 means, he admits that DW.1- Sri.Narayanaswamy was carrying out his business in second hand machines and tools and he went out of the house and residing separately. He has denied the suggestion that to purchase suit Item Nos.2 and 3 properties Sri.Narayanaswamy had obtained loan from Canara Bank and he has been making repayment of instalments even till today, he simply showed his ignorance. He has not denied it. DW-1 has produced Ex.D1 - Statement of Account Extract standing in his name, the entries reflects that he has been making payment of loan instalments regularly. Therefore, he has raised loan for purchase of properties in the name of his wife - Smt.Sathyaveni from Canara Bank, can very well be gathered.
27. To show that he has been doing business in second hand tools and machineries, he has produced VAT Registration Certificate - Ex.D2. The plaintiffs have not disputed that he has been running the said business. DW-1 has stated that previously along with his father, he was doing mason work and he has discontinued it in the year 1980 itself, thereafter started his own separate business. 32 O.S.No.457/2012 That means, he has got independent self earnings. It has come in the evidence that his younger brother - Sri.Perumal was at that time studying, later on discontinued and he also started mason work. Very interestingly Sri.Perumal has not entered into witness box, to show that his income was utilized by DW-1, because upto 2004 Sri.Annamalai was alive and he has been managing the property. Therefore, the say of the plaintiffs that earnings of their father were placed in the hands of DW-1, cannot be appreciated. No documents are produced to evidence the same. To substantiate the same, Sri.Perumal should have been come before the court. When it is the definite case of DW-1 that since 1991 he started residing separately, doing his own separate business, heavy burden is on the plaintiffs to establish that the business being run by DW-1 was also by utilizing the joint family money. But the evidence of DW-2 i.e., mother - Smt.Muniyamma, an elderly lady in their family, has not remotely stated that Sri.Annamalai has paid amount to DW-1 to start business and the lease amount or rentals received from suit Item No.1 property was utilized in starting the business. In the absence of proof given by the 33 O.S.No.457/2012 plaintiffs, it is needless to say that the business run by DW.1 is independent separate business of DW-1. Moreover, in the schedule the plaintiffs have not showed the business run by defendant No.2 was also a joint family business. Therefore, absolutely there is no basis for the plaintiffs to contend that Sri.Narayanaswamy has started the said business of second hand machines and tools by utilizing the joint family funds. Therefore, defendant No.2 had independent source of income from out of his own business, has got grain of truth and since 1980 onwards he has been doing his own business independently. Sri.Annamalai and his second son - Sri.Perumal were engaged in mason work, is not disputed. As per the evidence of DWs.1 and 2 till the death in 2004 Sri.Annamalai was receiving the rentals. Since 1994, Sri.Annamalai was not keeping good health is deposed by DW-1 in his cross-examination. DW-2 has stated that her husband was managing the property and receiving the rentals from the tenants. Therefore, lease amount and rentals from the tenants were received by Sri.Annamalai till his death, then question of DW-1 utilizing 34 O.S.No.457/2012 the same in purchase of suit Item Nos.2 and 3 properties, cannot be appreciated at all.
28. In the entire cross-examination of DW-1, the learned counsel for the plaintiffs has not been able to elicit from his mouth that the business being run by him was by utilizing the money derived from joint family property i.e., suit Item No.1 property. He has specifically denied in the cross-examination the suggestion that by taking lease amount in respect of suit Item No.1 property, he has purchased suit Item Nos.2 and 3 properties, with the consent of his mother and his brother - Sri.Perumal. Even he has stated that he doesn't know how much amount from the tenants towards rentals and lease was fetch. Because it is his case that after the death of his father, mother and his brother - Sri.Perumal used to receive it and they received the amount. He did not ask his brother and mother to share the rent amount received and specifically denied the suggestion that he is running the machinery business by utilizing the lease amount and rents received from tenants and amount paid by Sri.Perumal out of his earnings. In the entire evidence of DWs.1 and 2, nowhere they admitted 35 O.S.No.457/2012 that suit Item Nos.2 and 3 properties are purchased in the name of defendant No.4 by utilizing the joint family nucleus derived from suit Item No.1 property. According to DW-1, his wife was previously doing job in Electronics Company and thereafter, she left. Whereas, DW-2 in her cross- examination has stated that she has not seen defendant No.4 - Smt.Sathyaveni was found doing any job. It doesn't mean that Smt.Sathyaveni doesn't have any income source and she was simply a house wife. Evidence as a whole gives an impression that the business i.e., run by DW.1- Sri.Narayanaswamy was his exclusive business. The very fact that the plaintiffs have not sought the relief showing the said business is also a joint family business in the schedule, itself shows that they were aware of the fact that it is the independent business of DW-1. Further, DW-1 has established that he has availed loan while purchasing the suit Item Nos.2 and 3 properties from Canara Bank and he has been repaying the same.
29. Apart from it, he has produced Income Tax Returns filed by him at Ex.D25 for the year 2004-05 and his wife - Smt.Sathyaveni for the year 2003-04 at Ex.D26. 36 O.S.No.457/2012 Ex.D27 is the Return submitted by DW-1 for the year 2015-
16. It goes to show that there is grain of truth in his evidence, being fully supported by the evidence of DW-2 i.e., his mother, that by availing the loan and income from his business and financial assistance given by the parents of Smt.Sathyaveni under Registered Sale Deeds - Ex.D3 and D4 suit Item Nos.2 and 3 properties were purchased in the name of defendant No.4 - Smt.Sathyaveni and katha of the properties standing in her name.
30. Above all, it is an admitted fact that DW.1- Sri.Narayanaswamy filed O.S.No.2284/2009 seeking partition in respect of suit Item No.1 property only, contending that it is the joint family property, they succeeded after the death of his father - Sri.Annamalai, seeking his 1/3rd share in it. His mother and younger brother - Sri.Perumal were defendants 1 and 2 in that suit. Suit Item Nos.2 and 3 properties were not showed in the said partition suit filed by him. Further, that suit was contested by Sri.Perumal and his mother -
Smt.Muniyamma. In the said suit, they did not contend that the business being run by Sri.Narayanaswamy was also 37 O.S.No.457/2012 a joint family business and out of the joint family nucleus, with their consent, suit Item Nos.2 and 3 properties were purchased in the name of wife of Sri.Narayanaswamy under Registered Sale Deeds - Ex.D3 and D4 and they are having share it. They did not remotely whispered the same in the said suit. Because that was the occasion for them to contend before the court that the said suit was filed by Sri.Narayanaswamy showing suit Item No.1 property alone for partition, is bad for non-inclusion of all the properties belonged to joint family and they are also having share it. The father of the present plaintiffs - Sri.Perumal was defendant No.2 in that suit, has not remotely raised any whisper regarding suit Item Nos.2 and 3 properties standing in the name of Smt.Sathyaveni, are also joint family properties and he is having share in it.
31. DW-1 in the cross-examination admitted that at the time of filing the said suit in the year 2009 his children as well as children of Sri.Perumal have already attained the age of majority. But question of arraying them as parties in that suit doesn't arise for the simple reason, father of the plaintiffs - Sri.Perumal was party in the said suit and 38 O.S.No.457/2012 property shown in the schedule of that suit was the self acquired property of Sri.Annamalai. Therefore, question of considering it as an ancestral property of the present plaintiffs and they are having coparcenary birth right in the said property, doesn't arise at all. Because on the date of death of Sri.Annamalai on 13.09.2004, his self acquired property left behind by him was suit Item No.1 property only and his wife and 2 sons succeeded to it by way of succession. Therefore, arguments canvassed by the learned counsel for the plaintiffs that they were majors on the date of filing the suit in 2009 and deliberately children were not arrayed as parties, cannot be appreciated at all.
32. No doubt, in this suit the plaintiffs have not arrayed the children of Sri.Narayanaswamy as parties. Subsequently they themselves got impleaded as defendants 5 and 6 and they supported the case of their father by filing written statement and they contended that suit Item No.1 property was their ancestral property. May be on the ground that, it was the property left behind by their grand- father - Sri.Annamalai. But their claim should be through their father - Sri.Narayanaswamy. But on the death of 39 O.S.No.457/2012 Sri.Annamalai, his wife and 2 sons being Class I heirs already succeeded suit Item No.1 property. Therefore, even if they contended in the written statement that suit Item No.1 property i.e., Rajajinagar property, is their ancestral property, doesn't alter the nature of the property.
33. Therefore, the crucial point worth to appreciate in this case that father of the present plaintiffs i.e., defendant No.3 - Sri.Perumal, who was admittedly party in O.S.No.2284/2009, was quite aware of the fact that suit Item Nos.2 and 3 properties are not the joint family properties, those properties are the self acquired properties of Smt.Sathyaveni and her husband - Sri.Narayanaswamy. That is the reason, he has not chosen to raise the plea in that suit and failed to insist inclusion of suit Item Nos.2 and 3 in the schedule. The conduct of father of the plaintiffs also need be appreciated. Because in this suit, he is party - defendant No.3, though appeared through advocate, not chosen to file any written statement and even he has not chosen to enter into witness box, had he been enter into witness box there was an opportunity for the defendant No.2 to elicit truth from his mouth. Here, very interesting 40 O.S.No.457/2012 point worth to appreciate that, in the previous suit O.S.No.2284/2009 the matter was referred to Mediation Centre, Bangalore, wherein compromise was arrived at. If really, suit Item Nos.2 and 3 properties were the joint family properties, before the Mediators Sri.Perumal should have raised the contest to bring to their notice that, all the properties were not included in the schedule, that has not been done.
34. In the cross-examination of the PW-1, he admits that the said suit was filed for partition against his grandmother and his father - Sri.Perumal and he is aware about the said suit and the said suit was ended in compromise in Mediation, is admitted by him. Further, in the said compromise, his grandmother is given right to enjoy the third floor and to receive rentals from tenants till her lifetime. He admits that his father was expected to deposit Rs.26,00,000/- to retain the suit Item No.1 property to him and his father did not deposit the said amount. He admits that thereafter, DW.1 - Sri.Narayanaswamy has deposited Rs.26,00,000/- in the court and got the Sale Deed executed in his favour through process of the court. 41 O.S.No.457/2012 However, he has showed his ignorance to the effect that on the strength of the Sale Deed executed in his favour in respect of suit Item No.1 property through the process of the court, katha was changed in the name of Sri.Narayanaswamy, but he admits that Sri.Narayanaswamy himself has filed suits against the tenants and got them vacated. Even he admits that Sri.Narayanaswamy had filed suit against his father also seeking possession and said suit is pending. That means, the allegation that the defendant No.2 got filed the suit O.S.No.2284/2009 without showing suit Item Nos.2 and 3 properties and committed fraud and during the pendency of this suit, by making an application in FDP got the Sale Deed executed in his favour behind the back of the plaintiffs and their father, cannot be appreciated at all. Because the plaintiffs and their father - Sri.Perumal are aware of all these facts.
35. Therefore, the clear admission by conduct of father of the plaintiffs - Sri.Perumal not asserting his right over suit Item Nos.2 and 3 properties in the previous suit, makes it abundantly clear that suit Item Nos.2 and 3 properties are not the joint family properties, but those 42 O.S.No.457/2012 properties are the exclusive self acquired properties of defendant No.2 and his wife - Smt.Sathyaveni i.e., defendant No.4. Ex.P3 is the certified copy of Memorandum of Settlement under Section 89 of CPC read with Rules 24 and 25 of Civil Procedure (Mediation) Rules 2005, entered between the present defendants 1 to 3 in O.S.No.2284/2009. Wherein, father of the plaintiffs - Sri.Perumal admits that Sri.Narayanaswamy is living separately with his family and Sri.Perumal and his mother - Smt.Muniyamma are residing in suit Item No.1 building. On reading the conditions of compromise agreement arrived at that, towards full and final settlement of claim of Sri.Narayanaswamy in the said property, defendant No.1 i.e., who is father of the present plaintiffs, has agreed to pay a sum of Rs.26,00,000/- to Sri.Narayanaswamy within 8 months from the date of compromise on or before 23.05.2011 and Sri.Narayanaswamy agreed to receive the said amount from Sri.Perumal and thereby, he would give up his right, title and interest over entire present suit Item No.1 property and his share to the said Sri.Perumal towards full and final settlement between the parties. It is also 43 O.S.No.457/2012 further agreed that if payment was made by Sri.Perumal as agreed, he would become owner of entire present suit Item No.1 property along with constructed building. Clause No.7 in the said Agreement reveal that, if Sri.Perumal fails to pay Rs.26,00,000/- to Sri.Narayanaswamy within the stipulated period of 8 months from the date of Agreement on or before 23.05.2011, the plaintiff in that suit i.e., Sri.Narayanaswamy shall become owner of the suit Item No.1 property and he would pay to Sri.Perumal Rs.26,00,000/- within 3 months from the said date i.e., on or before 22.08.2011. In such an event, Sri.Perumal after receiving the said amount has agreed to get the Sale Deed registered in the name of Sri.Narayanaswamy and hand over vacant possession of the property to him. In clause No.8 of Ex.P3 disclose that the parties have agreed that their mother - present defendant No.1 - Smt.Muniyamma has a right of residence, right to stay in third floor of the suit building in Item No.1 in the present schedule, further she has right to receive the rents from 3 tenements in the third floor till her lifetime. As such, Smt.Muniyamma has not been allotted any share in the property and she has 44 O.S.No.457/2012 whole heartedly consented for the said arrangement and they requested the court to draw final decree as per the said terms. PW-1 admits that his father has not paid Rs.26,00,000/- as agreed under Ex.P3. It is DW.1 - Sri.Narayanaswamy has deposited Rs.26,00,000/- in the court to retain the property. Here, as within the stipulated time he has not paid the amount, obviously exercising the right given to him under Clause No.7 of Ex.P3, DW-1 has filed FDP.No.127/2011 as evidenced by certified copy of order sheet - Ex.D5. Though, Smt.Muniyamma and Sri.Perumal have appeared in that FDP, even then he has not exercised his right to pay the amount to Sri.Narayanaswamy as per the compromise decree. That is the reason, court has permitted him to deposit Rs.26,00,000/-, accordingly Sri.Narayanaswamy has deposited the said amount in the court. He has filed application to appoint the Court Commissioner to execute registered Sale Deed in his favour. Order sheet reveals that court has passed orders and accordingly, through the process of the court Sale Deed was executed in respect of suit Item No.1 property in favour of DW-1 as evidenced by 45 O.S.No.457/2012 Ex.D7 - Registered Sale Deed dated 20.08.2013. Here, as Sri.Perumal did not turn up and Court Commissioner has executed the Sale Deed in his behalf, whereas the present DW.2 - Smt.Muniyamma had executed the Registered Sale Deed in respect of suit Item No.1 property in favour of DW.1. Order sheet - Ex.D5 reveal that court has taken care that Rs.26,00,000/- deposited by Sri.Narayanaswamy in the court was ordered to be invested in fixed deposit in the name of Registrar, City Civil Court, Bangalore, which is deposited in the court vide R.O.No.1427/2013 dated 12.09.2013 till respondent No.1 (Sri.Perumal) makes claim for its disbursement. The court has also ordered that the said amount shall be invested initially for a period of one year and same shall be invested from time to time if requires. Therefore, even though the plaintiffs alleged that during the pendency of the present suit, Ex.D7 was got executed, as such same is not binding on their rights. In the first place, they must establish that they have got right to file the present suit claiming share in the suit schedule properties. If at all, they claim right that is through defendant No.3, their father - Sri.Perumal and he has lost 46 O.S.No.457/2012 his right as he is the party to said compromise decree in O.S.No.2284/2009 and also in FDP.No.127/2011. As such, Ex.D7 is binding on him.
36. Further, on the strength of Ex.D7 Sale Deed, suit Item No.1 property was transferred in the name of defendant No.2 - Sri.Narayanaswamy as could be seen from Ex.D8 - Katha Extract dated 21.10.2013. Ex.D9 is the Katha Certificate issued by BBMP evidencing that property is standing in his name. Ex.D10 is the tax paid receipt evidencing that he has paid taxes to the BBMP. PW-1 simply showed his ignorance about all these facts, but he admits that DW-1 has initiated proceedings against the tenants and obtained eviction decree and also obtained vacant possession of the same.
37. Here, the plaintiffs have produced certified copy of orders passed in HRC.No.113/2015 dated 11.03.2016 filed against one Sri.Karunakaran under Section 27(2)(1) of Karnataka Rent Act, seeking possession for non-payment of rents. But in that case on technical ground, that statutory period of 2 months notice as contemplated under Section 47 O.S.No.457/2012 27(2)(a) of Karnataka Rent Act has not been adhered to by the petitioner, it came to be dismissed. Again he has filed S.C.No.957/2014 against the said Sri.Karunakaran on the file of Small Causes Court, Bangalore, wherein after contest, the said suit came to be dismissed on the ground that, suit schedule property is a commercial premises, measuring 10'x12' feet i.e., 120 square feet, its total area is less than 14 square metres. Hence, Karnataka Rent Act is applicable to the suit schedule property and held that the plaintiff is not entitled for the relief sought and it came to be dismissed. It doesn't mean that he did not acquire any right over the premises. The court has not held that Sri.Perumal and his sons are the owners. On technical ground on the point of jurisdiction, it came to be dismissed. That is what DW-1 in the cross-examination has deposed before the court.
38. Again the defendant has produced certified copy of the judgment in O.S.No.6388/2014 on the file of X Addl. City Civil and Session Judge, Bangalore, filed against one Sri.Nagaraj, Smt.Bhagyalakshmi and Sri.Perumal and that suit was contested, wherein decree passed in 48 O.S.No.457/2012 O.S.No.2284/2009 and acquisition of title by Sri.Narayanaswamy was appreciated that he has got right to seek eviction against the tenants and decree was passed against Sri.Nagaraj and his wife - Smt.Bhagyalakshmi, directing them to hand over the vacant possession of the schedule premises to the plaintiff - Sri.Narayanaswamy within 2 months. He has also produced Ex.D23 - certified copy of the judgment passed in S.C.No.1446/2013 filed by Sri.Narayanaswamy against Smt.Vimala. In the said suit also considering his title over the property, court has passed an order of eviction against the tenant, directing her to hand over the vacant possession of the rented premises within 1 month from the date of judgment. That means, after under Ex.D7 - Registered Sale Deed obtained through the process of the court, DW.1 - Sri.Narayanaswamy had initiated action against the tenants and subsequently filed execution against them and obtained vacant possession as could be seen from Ex.D17 to D22.
39. DW-1 in his cross-examination has stated that after getting the vacant possession of the premises from the tenants he has kept it under lock. In the cross- 49 O.S.No.457/2012 examination, DW-1 has denied that it is in joint possession of plaintiffs and defendants 1 to 3. In the cross- examination of DW-2 she has denied the suggestion that no share was given to her in respect of suit Item No.1 property as per the compromise under Ex.P3. She has stated that 3 houses in the third floor was given to her and also in one of the houses she is residing, remaining 2 houses were let out to the tenants. It is her case that during the lifetime of her husband also, she was receiving rentals from the tenants. That is the reason, in Ex.P3 she was not given share, but life estate was created to make a provision for her stay in the third floor and to recover rentals from 3 premises from the tenants till her death. In the cross-examination page No.11 she has stated that defendant No.3 - Sri.Perumal has driven her out from the house. Now DW.1- Sri.Narayanaswamy has taken her to his house and he is maintaining her. She has stated that she has got right in respect of suit Item No.1 property. DW-1 has not acted against the terms and conditions of Memorandum of Agreement arrived before Mediation Centre as per Ex.P3 and compromise decree was drawn based on it. Defendant 50 O.S.No.457/2012 No.3 - Sri.Perumal was one of the parties to the said compromise agreement - Ex.P3 and suffered decree. Therefore, he can't say anything against said compromise decree, because that was acted upon through the court process. DW-1 got executed Sale Deed in his favour by depositing Rs.26,00,000/- in the court and further, on the strength of his title, he has initiated action against the tenants by filing suits and courts have appreciated his title and right to recover possession, decreed the suits and he has taken possession of the premises let out to the tenants. May be in the ground floor, defendant No.3 - Sri.Perumal and his sons - present plaintiffs are residing. It doesn't mean that still they are in joint possession of the suit Item No.1 property with DW-1. Because by virtue of the compromise decree in O.S.No.2284/2009 the joint status in so far as suit Item No.1 property is concerned was disrupted and DW-1 Sri.Narayanaswamy has acquired absolute title in respect of suit Item No.1 property under registered Sale Deed - Ex.D7.
40. Therefore, in this suit subsequently the plaintiffs got amended the suit by stating that Ex.D7 - Sale Deed 51 O.S.No.457/2012 dated 20.08.2013 is not binding on the share of the plaintiffs in the suit schedule properties and it is their contention that the said Sale Deed is hit by lis-pendence. Merely the plaintiffs have filed the present suit seeking partition in suit Item No.1 property doesn't debar defendant No.2 to execute the decree obtained in O.S.No.2284/2009 under compromise agreement before the Mediation Centre dated 24.09.2010. To execute the decree, he has taken steps and court has passed orders in his favour and through the process of the court Sale Deed was got executed in his favour. The present plaintiffs cannot claim that the said Sale Deed is not binding on their right in suit schedule properties. Firstly, they must establish that they have got right to maintain the present suit. If at all, they are having any right that is through their father - Sri.Perumal, who was admittedly the party to the said compromise decree and also in FDP.No.127/2011, he has not at all challenged the said decree or Sale Deed. That means, through his children he got filed the present suit as argued by the learned counsel for defendant No.2, has got grain of truth. 52 O.S.No.457/2012
41. In this case, after Sale Deed was executed in favour of DW-1 in respect of suit Item No.1 property and he got changed the katha and initiated action against the tenants. The present plaintiffs have filed IA.VI application in this suit seeking injunction against defendants 2 and 4 from interfering with their enjoyment and this court has dismissed the same by order dated 09.01.2015. Against the said order present plaintiffs have preferred MFA.No.3091/2015, wherein their lordships have appreciated that, is there any justification for the present plaintiffs to claim injunction against the defendants 2 and 4 by order dated 01.07.2015 dismissed the said MFA. In Para 8 of the said order, their lordships have observed as follows:
"On consideration of the materials on record, I find that plaintiffs have failed to make out any prima facie case. The findings recorded by the Trial Court are based on the compromise decree to which the father of the plaintiffs is a party, 2nd defendant has deposited a sum of Rs.26 lakhs in the execution proceedings pursuant to the terms of the decree passed in O.S.No.2284/2009. Plaintiffs, prima facie, cannot have any independent right over the 53 O.S.No.457/2012 property. They can only claim through the 3rd defendant. 3rd defendant himself has entered into a compromise and therefore, no prima facie case can be said to have been made out by the plaintiffs".
Therefore, their lordships have clearly considered the compromise decree passed in O.S.No.2284/2009 and DW.1- Sri.Narayanaswamy has acquired ownership right and title in respect of suit Item No.1 property and the plaintiffs do not have any independent right over the property. They can only claim through their father - defendant No.3. As Sri.Perumal himself was party to the compromise decree, present plaintiffs cannot question the said compromise decree on any ground. Moreover, absolutely there are no circumstances worth to appreciate to believe the allegation that DW-1 has committed fraud and obtained compromise decree by misleading the court. The allegation of fraud, misrepresentation are to be proved by the plaintiffs and defendant No.3. Defendant No.3 has not all filed written statement, not participated in the proceedings. If at all any right is there for the plaintiffs that is through their father - Sri.Perumal. They don't have any independent right as 54 O.S.No.457/2012 observed by their lordships in the above said MFA. Therefore, absolutely nothing is proved by way of evidence by the plaintiffs to show that the compromise decree passed in O.S.No.2284/2009 is not binding on their right in respect of suit schedule properties. On the contrary, all the circumstances echoes against the plaintiffs that without having any manner of right, they filed this suit on imaginary grounds.
42. The learned counsel for defendant No2. has relied on a decision reported in ILR 2016 KAR 673 (DB), in the case of Gowribidanuru Sahakara Sakkare Karkhane Ltd. Bangalore v. Indian Bank, Bangalore and another, wherein their lordships have held that:
"The scheme of Order 23 Rule 3 is to avoid multiplicity of litigation and permit the parties to amicably come to a settlement which is lawful; and which should be a voluntary act on the part of the parties".
In the present case, in a partition suit filed by DW-1 against his mother and his younger brother - Sri.Perumal. Sri.Perumal had participated in the proceeding and also in 55 O.S.No.457/2012 the Mediation process voluntarily agreed for the terms of compromise - Ex.P3 and based on it compromise decree was passed. He was party before court in FDP.No.127/2011. As he has failed to exercise his right under compromise, obviously present DW.1- Sri.Narayanaswamy had right to deposit the said amount of Rs.26,00,000/- as per Clause No.7 in the Compromise Agreement - Ex.P3 and obtained Registered Sale Deed through the process of the court. His mother, who was party to the compromise, had signed the said Sale Deed - Ex.D7. He has exercised his ownership right. It was within the knowledge of defendant No.3 - Sri.Perumal, who was the party, he cannot raise any voice against the said compromise decree and same is binding on him and equally the said decree is binding on his children, who are the present plaintiffs.
43. Now, for the detailed discussions made hereinabove the plaintiffs have failed to establish that suit Item Nos.2 and 3 properties are the joint family properties. On the contrary, DW.1- Sri.Narayanaswamy has proved before the court that the business being run by him is his 56 O.S.No.457/2012 separate business and he has purchased the properties in the name of his wife by raising loan from Canara Bank and also utilizing his self earned money and also the financial assistance given from parents of his wife - Smt.Sathyaveni. Therefore, they are the self acquired properties of the defendants 2 and 4 and all the records are standing in the name of Smt.Sathyaveni. The express conduct of defendant No.3 - Sri.Perumal not raising any voice in previous partition suit filed by present defendant No.2 against his mother and Sri.Perumal and he was party to the compromise, admitting that, that is the only property left behind by his father and joint family property and that property was also purchased by defendant No.1 under Sale Deed - Ex.D7 through the process of the court in execution of the compromise decree. Therefore, Sri.Perumal doesn't have any right over suit Item No.1 property. Therefore, defendant No.3 - Sri.Perumal doesn't have any right to seek partition in suit Item No.1 property also as it has become absolute property of defendant No.1. If at all, he has got any right, he has to make an application before the concerned court and to get release Rs.26,00,000/- 57 O.S.No.457/2012 deposited by Sri.Narayanaswamy as per the terms of the compromise decree along with interest accrued on it as court has ordered to invest the same in FDR.
44. The learned counsel for defendant No.2 has relied on a decision reported in 2015 (3) KCCR 2192, in the case of Mallanna v. Smt.Lakshmamma and others, wherein their lordships have held as follows::
"HINDU LAW - Joint family property - Claim for partition - Purchase of all properties by Manager of joint family - Specific plea that they were self-acquired properties - But no evidence to prove that there was separate income other than joint family income - Law raises presumption that all the properties were joint family properties - First respondent found to be member of one branch, whereas appellant and other respondents found to be members of other branch - Courts below granting - Justified - Appeal dismissed."
In the present suit, the plaintiffs are the children of defendant No.3 - Sri.Perumal. The plaintiffs father - Sri.Perumal had suffered compromise decree in O.S.No.2284/2009. Sale Deed was executed through the 58 O.S.No.457/2012 process of the court in respect of suit Item No.1 property, that was the only property considered as a joint family property as it was left behind by their father - Sri.Annamalai. Therefore, the plaintiffs do not have any independent right and they represent the branch of Sri.Perumal, who has already lost his right. If at all any right he has, only to receive the amount deposited by DW-1 in the court. Defendant No.1 - mother was given limited right under the compromise decree - Ex.P3 and now she is residing along with defendant No.2 as per her evidence and her right to enjoy the property in third floor is not in dispute. Therefore, suit Item No.1 property is also not available for partition. Suit Item Nos.2 and 3 properties are the self acquired properties of the defendant No.2 and his wife - Smt.Sathyaveni. Therefore, suit for partition filed by the plaintiffs is not sustainable.
45. One more legal point worth to appreciate in this suit is that, suit Item No.1 property which was the self acquired property of Sri.Annamalai along with 3 storied constructed building. He died leaving his wife and 2 sons namely defendants 1 to 3 in this suit as his Class-I heirs. 59 O.S.No.457/2012 Therefore, it is not the ancestral property or the coparcenary property of deceased Sri.Annamalai. Obviously, the parties are Hindus governed by Mithakshara Law of Inheritance. As suit Item No.1 property was the self acquired property of deceased Sri.Annamalai, who died on 13.09.2004. As such, under Section 8(1) of the Hindu Succession Act, it devolves on his Class-I heirs namely his wife and 2 sons. Therefore, obviously, Sri.Perumal and Sri.Narayanaswamy, who are the sons of deceased Sri.Annamalai and his widow - Smt.Muniyamma alone are the Class-I heirs. Obviously, the plaintiffs do not have any independent right in respect of suit Item No.1 property to file a suit for partition or question the validity or otherwise of the compromise decree in O.S.No.2284/2009. Sri.Perumal was the party to the said litigation and it has reached its finality. He has not raised any little finger against the compromise decree and further orders passed in FDP.No.127/2011.
46. The learned counsel for defendant No.2 has relied on a decision reported in AIR 2016 Supreme Court 1169, in the case of Uttam v. Saubhab Singh and others. It 60 O.S.No.457/2012 was a suit filed by grandson during the lifetime of his father in respect of coparcenary property. Regarding the maintainability of the suit, question was raised. In that case, the widow and class-I heirs are alive and it is held that, case would be governed by proviso to Section 6 of the Hindu Succession Act. Their lordships have ruled that:
"Partition gets effected in operation of law in view of Expln.1 to S.6 - Ancestral property ceases to be joint family property from the date of death of grandfather - And devolves by succession under Section 8 - Other coparceners i.e., plaintiff/grandson's father and uncles and widow of deceased grandfather, hold property as tenants in common"
In the above said case, grandfather was died in the year 1973 and the plaintiff, who was the grandson born after the death of grandfather in the year 1977. Their lordships ruled that suit filed by him for partition is not maintainable, holding that on the date of his birth, the said ancestral property is not a joint family property. In the present case on hand, suit Item No.1 property was not at all the ancestral property or coparcenary property, it was the self acquired property of Sri.Annamalai, who died on 61 O.S.No.457/2012 13.09.2004. Therefore, as his 2 sons and widow are Class I heirs under Section 8 of the Hindu Succession Act they succeeded to it. The plaintiffs cannot claim that it is the ancestral joint family property and they are entitled to get share in it. Their contention that partition suit filed by the defendant No.2 against his mother and Sri.Perumal and obtained decree is not binding on their rights, cannot be appreciated. On the contrary, the plaintiffs don't have any independent right in respect of suit Item No.1 property, as such present suit is not sustainable under law. As far as suit Item Nos.2 and 3 are concerned, it is held that the defendant No.2 has proved to the satisfaction of the court that they are the self acquired properties of him, purchased in the name of his wife defendant No.4 and the said properties are not available for partition. Therefore, it is held that defendant No.2 has proved Additional Issue No.2 and the plaintiffs have failed to prove Issue Nos.1 and 2 and Additional Issue No.1. Accordingly, I answer Issue Nos.1 and 2 and Additional Issue No.1 in the negative and Additional Issue No.2 in the affirmative.
62 O.S.No.457/2012
47. Issue No.3:-
In this case, for the detailed discussions made while answering Issue Nos.1 and 2 and Additional issue Nos.1 and 2, it is held that suit Item No.2 and 3 properties are the self acquired properties of defendant No.2 purchased in the name of his wife - defendant No.4 - Smt.Sathyaveni and these two properties are not available for partition. As regards suit Item No.1 property along with house building is concerned, already the rights of the parties are decided in previous regularly constituted partition suit filed by defendant No.2 against his mother and brother - Sri.Perumal, ended in compromise decree and as per the terms of the compromise decree in O.S.No.2284/2009 he has obtained registered Sale Deed through the process of the court as per Ex.D7 dated 20.08.2013 and became exclusive owner of the property having title and he has exercised the said right by filing suits against the tenants for eviction and obtained decree against them. All the courts have appreciated the acquisition of title by virtue of the compromise decree, followed by obtaining registered 63 O.S.No.457/2012 Sale Deed under Ex.D7, that has not been challenged by the parties in that suit and same is binding on the present plaintiffs. Therefore, they cannot challenging the said decree in any manner and not entitled to get any declaration to that effect. Even they are not entitled to get the relief of injunction what is sought, much less partition in the suit schedule properties. The plaintiffs do not have any independent right to file the suit for partition and they are not at all entitled to any of the reliefs claimed in the suit, as such same is liable to be dismissed. Accordingly, I answer Issue No.3 in the negative.
48. Issue No.4:
For the forgoing reasons, I proceed to pass the following:-
ORDER Suit filed by the plaintiffs against the defendants is hereby dismissed with costs.
Draw a decree accordingly. (Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then 64 O.S.No.457/2012 pronounced by me, in open Court, this the 18th day of March 2017) (BAILUR SHANKAR RAMA) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiffs' side:
PW.1 - Sri.Madhu
(b) Defendants' side:
DW.1 - Sri.Narayanaswamy DW.2 - Smt.Muniyamma II. List of documents exhibited on behalf of:
(a) Plaintiffs' side:
Ex.P1 : Genealogical Tree
Ex.P2 : Certified copy of Sale Deed dated
11.03.2004
Ex.P3 : Certified copy of Memorandum of
Settlement in O.S.No.2284/2009
Ex.P4 : Katha Certificate
Ex.P5 : Katha Extract
Ex.P6 : Receipt
Ex.P7 & 8 : Encumbrance Certificates
Ex.P9 : Katha Certificate
Ex.P10 : Katha Extract
Ex.P11 : Certified copy of Sale Deed dated
10.07.2001
Ex.P11(a) : Typed copy of Ex.P11
65 O.S.No.457/2012
Ex.P12 : Certified copy of Absolute Sale
Deed dated 11.08.1980
Ex.P13 : Certified copy of Evidence of
Petitioner - Sri.Narayanaswamy in
HRC.No.113/2015
Ex.P14 : Certified copy of Order in
HRC.No.113/2015
Ex.P15 : Certified copy of Judgment in
S.C.No.957/2014
Ex.P16 : Shop Rental Agreement
(b) Defendants' side:
Ex.D1 : Statement of Account
Ex.D2 : VAT Registration Certificate
Ex.D3 : Certified copy of Sale Deed dated
01.12.2004
Ex.D4 : Certified copy of Sale Deed dated
11.03.2004
Ex.D5 : Certified copy of Order sheet in
FDP.No.127/2011
Ex.D6 : Certified copy of Judgment in
MFA.No.3091/2015
Ex.D7 : Certified copy of Sale Deed dated
20.08.2013
Ex.D8 : Katha Extract
Ex.D9 : Katha Certificate
Ex.D10 to 12 : Tax Paid Receipts
Ex.D13 to 15 : Encumbrance Certificates
Ex.D16 : Certified copy of Judgment in
O.S.No.6388/2014
Ex.D17 : Certified copy of Court Warrant in
Ex.No.1470/2014
Ex.D18 : Certified copy of Spot Mahazar in
Ex.No.1470/2014
Ex.D19 : Possession Certificate in
Ex.No.1470/2014
Ex.D20 : Certified copy of Mahazar in
Ex.No.1470/2014
Ex.D21 : Certified copy of Spot Mahazar in
Ex.No.1470/2014
Ex.D22 : Possession Certificate
66 O.S.No.457/2012
Ex.D23 : Certified copy of Judgment in
S.C.No.1446/2013
Ex.D24 : Certified copy of Decree in
S.C.No.1446/2013
Ex.D25 : Taxpayers Counterfoil along with
Income Tax Return Form for the
year 2004-05
Ex.D26 : Taxpayers Counterfoil along with
Income Tax Return Form for the
year 2004-05
Ex.D27 : Income Tax Return Verification
Form for the year 2014-15
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.