Bangalore District Court
Chandramma vs Lakshmidevamma on 2 May, 2025
KABC010020001997
IN THE COURT OF XVI ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.12)
PRESENT : SMT. JYOTHSNA D., LL.B., LL.M., D.F.A.,
XVI ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
DATED: 2nd DAY OF MAY 2025
ORIGINAL SUIT NO.7129/1997
PLAINTIFFS: 1. Smt.Chandramma,Major,
W/o.Late Sri.G.Viswanathaiah
2. Kum.Madhurya,
Aged about 20 years,
D/o.Late G.Viswanathaiah
Both the plaintiffs are residing at
No.10, (Old No.C-58) 10th Main,
Kalappa Block, Ramachandrapuram,
Bangalore- 560 021.
(By Sri CVN/SRR- Advocate)
Vs -
DEFENDANTS: 1. Smt.Lakshmidevamma,
Major,
W/o.Late Sampangappa,
D/o.Late Garadi Pillaiah,
Dead by LRs:
O.S.No.7129/1997 - Judgment
1(a) S.Nirmala,
W/o.S.Sadananda,
D/o.Late Sampangappa,
Aged about 47 years,
R/at No.416,
8th Cross, Weavers Colony,
Gottigere Post,
Bannerghatta Road,
Bangalore.
1(b) S. Cheluva Krishna,
Since dead by his LRs.,
1(b)1. Sri Bharath C.,
S/o. S. Chaluva Krishna,
Aged about ___ years,
Residing at No.826, III Main,
IV Block, Rajajinagar, Bengaluru - 10.
1(b)2. Sri Srikanth,
S/o. S. Chaluva Krishna,
Aged about __ years,
Residing at No.826, III Main,
IV Block, Rajajinagar,
Bangalore - 10.
1(c)S.Rajalakshmi,
W/o.B.V.Yogachandra,
D/o.Late Sampangappa,
Aed about 40 years,
Residing atr Byatarayanapura,
Yelahanmka Road,
Bangalore.
2. Smt.Ramarathnamma,
Aged about 48 years,
W/o.Sri.Mouneshwara,
D/o.Sri.Garadi Pillaiah,
C/o.Smt.Sakamma,
2
O.S.No.7129/1997 - Judgment
Karaikailu,
5th Main Road,BEML Layout,
Kamakshipalya, Bangalore- 560 021.
3. Dakshina Murthy @ Balu,
Major,
S/o.Chinnalakshmaiah,
R/at No.826,
4th Block, 3rd Main road,
Rajajinagar, Bangalore- 560 010
4. Chandrasekhar,
Major,
S/o.Chinnalakshmaiah,
No.3, 5th Cross, 3rd Main,
Padarayanapura,
Bangalore- 560 026.
5. Mahaveerchand Chordia,
Major,
S/o.Jeevachandra Chordia,
No.4, 1st floor, Chamundi Nivas,
Kenchanayayakanahalli,
Nagaratthpet,
Bangalore -560 002.
6.Sri.Dhanraj,
Dead by LRs.,
6(a) Sri Vasanth,
S/o. Late Dhanraj,
Aged about 45 years,
6(b) Sri Ramesh,
S/o. Late Dhanraj,
Aged about 42 years,
3
O.S.No.7129/1997 - Judgment
6(c) Smt. Shankari,
D/o. Late Dhanraj,
Aged about 45 years,
7. The Commissioner,
Bangalore Mahanagara Palike,
Bangalore - 560 002.
8. Smt.Susheelamma,
W/o.Late G.Viswanathaiah,
Aged about 52 years,
R/at No.644,
9th Cross, Weavers colony,
Gottigere Post, Bannerghatta Road,
Bangalore- 560 083.
9. Smt.Meenakumari,
D/o.Late G.Viswanathaiah,
W/o.Ramesh R.,
Aged about 25 years,
R/at No.18, 3rd Main,
Opp: Maruthi Layout,
Bangalore- 560 029.
(D1 - Dead
D1(b) Dead
D1(b), D.1(b)1 by D.K.H. Advocate.
D.2 and 4 KSVR Advocate
D.5 by L.P., Advocate
D.3 by V.R., Advocate
D.6 by K.K.A., Advocate
D.6(a)(b) by A.M., Advocate
D.7 bu M.A.M., Advocate
D.8 and 9 H.B., Advocate
4
O.S.No.7129/1997 - Judgment
Date of institution of the suit 26-09-1997.
Nature of the suit: PARTITION
Date of the commencement of 13-08-2010.
recording of the evidence:
Date on which the Judgment was 02-05-2025.
pronounced
Total duration Year/s Month/s Day/s
27 07 06
(SMT. JYOTHSNA D.,)
XVI ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH12), BENGALURU
JUDGMENT
This suit is filed claiming decree for partition and separate possession of plaintiffs ¼ th share in the suit schedule A property by metes and bounds; to declare that the sale transaction in respect of 'A' suit property in favour of defendant Nos.5 and 6 is not binding on the plaintiffs to the extent of their share and the same is null and void and for permanent injunction restraining the defendant No.5 and 6 from interfering with the peaceful possession and enjoyment of 'A' schedule property; for permanent injunction restraining the defendant No.6 from subletting/ encumbering or alienating 'B' schedule property; to pass a permanent injunction restraining the defendant No.6 from interfering with the plaintiffs possession and enjoyment of 'A' suit 5 O.S.No.7129/1997 - Judgment property; for permanent injunction restraining the defendant No.1 to 5 from alienating or encumbering or meddling with the 'A' suit property and direct defendant No.7 to transfer katha in the name of defendant No.5 and 6 and for costs and for such other and further reliefs, as are just in the circumstances of the case.
2. The case of the plaintiff, as made out in the plaint is as follows :
The suit property described in the plaint schedule as 'A' schedule property is the property measuring 54 ft., East to West on the Southern Side and 39 ft., on the Northern side and North to South 83 ft., and 'B' schedule property is the property measuring 19 Sq.ft East to West on the Northern side, 22 ft. on the Southern side and 20 ft., North to South, both in Municipal katha No.10(Old 'C' No.59 and 58) situated at 1st Main Road, Kalappa Block, Ramachandrapura, Corporation Division No.20 Bengaluru, formerly an agricultural dry land in Sy.No.65, Sub-2 of Kethamaranahalli Village, were originally belonged to one Garadi Pillaiah @ Pillaiah, who died intestate on 26th July 1996, leaving behind his wife Smt. Achamma, 3 daughters who are defendant No.1 to 3 and son G.Vishwanathaiah as his sole surviving legal heirs and successors to his estate. Smt.Achamma died in 17.01.1991. G.Vishwanathaiah died on 7.5.1996 leaving behind his wife Smt.Chandramma, the 1st plaintiff and his only daughter 6 O.S.No.7129/1997 - Judgment Kumari Madhurya the second plaintiff. The plaintiff No.2 was born on 19.02.1990. By virtue of Hindu Succession Act, the plaintiff No.2 and her father Vishwanathaiah constituted a joint family after the death of Garadi Pillaiah. The suit 'A' property was devolved on defendant Nos.1 to 4 and G.Vishwanathaiah. The said Vishwanathaiah has got 1/4th share. Plaintiff No.2 thus entitled for ½ share in the 1/4th share of Vishwanathaiah. After the death of Vishwanathaiah, defendant No.5 and 6 applied for transfer of katha on the basis of sale deeds. To the best of knowledge of the plaintiffs, Vishwanathaiah has not executed any sale deed in favour of defendant Nos.5 and 6. The defendant No.5 and 6 have no right over the suit 'A' and 'B' properties. The plaintiff No.1 filed objections before BBMP for changing of katha in the name of defendant No.5 and 6. The said Vishwanathaiah could not alienate the 'A' schedule property which is the joint family property. Late Vishwanathaiah was a spendthrift and had fallen into bad vices. He was spending income from the suit 'A' Property for his bad vices.
During June 1996, the defendants demanded the partition and separate possession of the 'A' schedule property. But the defendants initially agreed to do so and backed out later. The defendant Nos.1 to 4 by joining with the defendant No.5 and 6 are attempting to create encumbrance over the 'A' schedule property to cause loss to the plaintiff. The defendant No.6 is in occupation of the 'B' schedule property as a tenant. After the death of 7 O.S.No.7129/1997 - Judgment G.Vishwanathaiah, defendant No.6 has not paid the rent of 'B' schedule property to the plaintiff. The defendant No.6 is trying to sub let the 'B' schedule property. The plaintiffs are also entitled for declaration of their title over the schedule property. On all these grounds, the plaintiffs claimed a decree for partition, declaration and permanent injunction in the above terms.
3. The defendant No.5 has filed his written statement, denying the relationship of the plaintiffs with Vishwanathaiah and the suit property as their joint family property and plaintiffs having right to claim share over the suit schedule property . It is the case of the defendant No.5 that Vishwanathaiah has married one Susheelamma and from the said wed lock, they got a female child by name Meena and plaintiffs are not wife and daughters of Vishwanathaiah.. The defendant No.5 further contended that he has purchased the portion of 'A' schedule property from Vishwanathaiah through registered sale deed. When the plaintiff No.1 tried to interfere with the defendants' possession of the land, he filed a suit in O.S.No.7741/1997 wherein an order of temporary injunction was granted. The plaintiffs are not the legal heirs of Vishwanathaiah and they have no right to claim share. On these grounds, the defendant No.5 prayed for dismissal of the suit with costs.
8
O.S.No.7129/1997 - Judgment
4. The defendant No.6 in his written statement has categorically denied all the plaint averments including the relationship of the plaintiffs with Vishwanathaiah and the suit property as their joint family property and plaintiffs having share over the same. It is the case of the defendant No.6 that he has purchased the portion of 'A' property from G.Vishwanathaiah vide sale deed of the year 1994 for Rs.1,30,000/-. After the purchase, the defendant No.6 has not paid the rent of the 'B' schedule property to Vishwanathaiah. The plaintiffs have no right to claim share over the properties sold by Vishwanathaiah. On these grounds, the defendant No.6 has prayed for the dismissal of the suit with costs.
5. The defendant No.8 and 9 have filed a separate written statement and they have also denied the plaintiffs' relation with Vishwanathaiah and plaintiffs having share over the suit schedule property. It is the case of the defendant No.8 and 9 that they are wife and daughter of Vishwanathaiah and plaintiffs are no way related to Vishwanathaiah and plaintiffs are not having any share in the suit property. On these grounds, the defendant No.8 and 9 prayed for dismissal of the suit with costs.
6. The defendant No.2 filed the written statement and admitted the plaintiffs claim and prayed for the allotment of her share over the suit property.
9
O.S.No.7129/1997 - Judgment
7. On the basis of the above pleadings of both the parties, following issues were framed :
1. Whether the plaintiffs prove genealogy furnished by the plaintiffs is correct?
2. Whether the plaintiffs prove that 'A' suit property is joint family properties of plaintiffs family?
3. Whether the plaintiffs prove that the sale deed executed in the name of defendant No.5 is null and void and not binding upon the plaintiff's shares?
4. Whether the plaintiffs prove that defendants 1 to 5 are trying to alienate the suit properties?
5. Whether the plaintiffs prove that they were in possession of the suit property along with family members?
6. Whether the plaintiffs are entitled for 1/4th share each in the suit properties?
7. Whether the plaintiffs are entitled for the declaration mandatory injunction and perpetual injunction?
8. What order?
ADDITINAL ISSUES dated 03-07-2013 Addl. Issue No 1 : Whether Defendant Nos.8 and 9 prove that the Plaintiff No.1 is not the legally wedded wife of G.Vishwanathaiah?
Addl.Issue No 2 : Whether the Defendant Nos.8 and 9 prove that the Plaintiff No.2 is not the daughter of G Vishwanathaiah?
10
O.S.No.7129/1997 - Judgment Addl.Issue No.3 :Whether the Defendant Nos.8 and 9 prove that they are the wife and daughter of G. Vishwanathaiah?
ADDITINAL ISSUE dated 31-08-2015 Addl. Issue No.4 : Whether the defendant No. 2 proves that he is also entities for share in the suit properties? ADDITIONAL ISSUE dated 28-06-2018 Addl.Issue No.1 : Whether the defendant No.6(a) and 6(b) proves that the plaintiffs have not filed suit for partition in all the properties left by late G. Viswanathaiah ? ADDITIONAL ISSUES dated 29-03-2021 Addl.Issue No.1 : Does the Plaintiffs prove the alleged interference?
Addl. Issue No.2 : Whether defendants prove that valuation of the suit schedule property and court fee paid by Plaintiff is not correct?
8. To prove their case the plaintiff No 1 entered into witness box and got examined herself by oath as PW 1 on behalf of herself and plaintiff No 2. She has filed sworn affidavit of examination in chief under which all the plaint averments are reiterated. To substantiate her case she has produced certain documents which are marked as Ex.P 1 to Ex.P 64, and 64 (a). Under that Ex.P 62 and Ex.P 63 are got marked through confrontation to DW1 in his cross examination adduced by the learned counsel for plaintiff. The learned counsels for defendant No 7, defendant No 6, defendant 11 O.S.No.7129/1997 - Judgment No 5, defendant No 1 to 4, defendant No 6(a) to 6(c) are cross examined PW 1 in length.
9. On the other, to disprove the case of the plaintiffs the D.W. 1 to D.W.5 are gave their evidence by filing separate affidavits of examination in chief under which the contention of their respective written statements are reiterated. The 6th defendants is examined by oath as DW 1 and no exhibits are marked through him.
The defendant No 5 has examined by oath as DW 2 and Ex.D 1 is got marked through him.
The 2nd defendant is examined by oath as DW 3 and Ex.D 2 and Ex.D 3 are got marked through him.
The defendant No 6(a) came into box and examined by oath as DW 4 and Ex.D 4 to Ex.D 20 and Ex.D 8(a), Ex.D 20(a) are got marked through him.
The defendant No 9 is examined by oath as DW 5 on behalf of herself and defendant No 8 and Ex.D 21 to Ex.D 24 are got marked through her.
10. The DW1 to DW 4 are cross examined by learned counsel for plaintiffs but inspite of sufficient opportunity the DW 5 has not taken pain to enter into witness box for her cross examination and due to non-appearance of DW 5 for her cross examination the stage was closed and posted for arguments.
12
O.S.No.7129/1997 - Judgment
11. Heard, perused materials placed on record and accordingly the above Issues and Addl.Issues are answered by this Court as under;
Issues Issue No 1 to 7 : In the Negative;
Addl.Issue dated 03-07-2013 Addl.Issue No 1 to 3 :In the Negative;
Addl.Issue No 4 dated 31-08-2015 : In the Negative, Addl.Issue No 1 dated 28-06-2018 : In the Negative, Addl.Issue No 1 dated 29-03-2021 : In the Negative, Addl. Issue No 2 dated 29-03-2021 : In the Negative, Issue No 8 : As per the final Order;
For the following;
REASONS
12. Issue No 1 and Addl.Issue No 1, 2 and 3 dated 03-07- 2013 : These four Issues are inter connected to each other, hence, they are taken up together hereunder to avoid repeated discussions;
Admittedly, this suit is filed for the relief of partition with separate possession, declaration, permanent injunction and mandatory injunction and the prayer portion in the plaint is reproduced as it is in the plaint here under;
"1. Direct/Order for the partition of the suit schedule property "A" by metes and bounds and for separate 13 O.S.No.7129/1997 - Judgment possession of the total 1/4 share therein in favour of the plaintiffs.
2. Declare that the sale transaction, if any in respect of the suit schedule "A" property or any portion thereof in favour of the defendants 5 and 6 alleged to have been made by Late G.Viswanathaiah is not bending on the plaintiffs to the extent of their total 1/4 share therein and the same is null and void to the extent of their total 1/4 share on the suit schedule "A" property and further peaceful possession and enjoyment of the suit schedule "A" property by means of a decree of permanent injunction.
3. Pass a decree of permanent injunction against the defendant No 6 retraining him from subletting and or encumbering/alienating or altering/meddling or change the nature of the schedule "B" property.
4. Pass a decree of permanent injunction restraining the defendant 6 from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule "A" property by means of decree of permanent injunction.
5, Restraining the defendants 1 to 5 from alienating, encumbering or meddling with the suit schedule "A" property or any portion thereof in any manner whatsoever by an order of permanent injunction.
6. Directing the Defendant 7 not to bifurcate/transfer the katha into the defendants 5 and 6.
7. Directing the defendants to pay to the plaintiffs the costs of this proceedings and 14 O.S.No.7129/1997 - Judgment
8. Granting to the plaintiffs such other relief or reliefs as this Hon'ble Court deems fit to grant in the circumstances of the case, in the interest of justice."
13. The plaintiffs, as narrated supra, are seeking partition and share in the plaint schedule property by claiming that they are wife and daughter of G. Vishwanathaiah who is son of Garadi Pillaiah who was the propositus of alleged joint family who died intestate. The genealogy produced by the plaintiffs and their relationship with late G. Vishwanathaiah is disputed in the written statement of defendant No.5 in paragraph 5, 6 and 14 of his written statement by denying their relation and stated that according to his knowledge, G.Vishwanathaiah has married one Susheelamma and out of that wedlock, a female child named Meena was born. Originally this suit is filed against defendant Nos,1 to 7, but, later the said Susheelamma and Meenakumari got impleaded by themselves and filed their written statement. In paragraph 3 of written statement of defendant Nos.8 and 9, they admitted the fact that the suit schedule property standing in the name of Sri Garadi Pillaiah as true and correct and also stated that nobody have succeeded to the said property except G. Vishwanathiah. But, did not state about how he alone succeeded. According to them, the said G. Vishwanathaiah died on 07-05-1996 and plaintiffs are not at all legal heirs to him and they have no right to succeed to his estate and all the defendants who filed 15 O.S.No.7129/1997 - Judgment written statements denied the Genealogical tree produced by the plaintiffs as false. Though defendant No.9 entered into witness box as D.W.5 and produced certain documents, but did not come before Court for cross examination as supra. The plaintiffs have produced notarised affidavit of genealogical tree which is marked as Ex.P.60 and the family tree drawn in page No.5 of the plaint.
14. As per the said Family tree, Garadi Pillaiah (died on 26- 07-1966) and Achamma (died on 17-01-1991) had four children namely Smt. Lakshmidevamma (defendant No.1), Smt. Savithramma, Ramarathnamma (Defendant No.2) and G. Vishwanathaiah (died on 07-05-1996). The defendant Nos.3 and 4 namely Sri Dakshina Murthy and Sri Chandrashekar are children of Smt. Savithramma. The plaintiff Nos.1 and 2 are shown as wife and daughter of Late G. Vishwanathaiah respectively. The defendant No.1 died at pendency of suit and her daughter S. Nirmala came on record as defendant No.1(a) and her son S. Cheluva Krishna was predeceased and he is noted as defendant No.1(b) and his children came on record as defendant Nos.1(b)(1), 1b(2) and 1(c) as per cause title in the plaint. Ex.P.60 is attested on 24-06-2013 and the legal representatives who are mentioned in cause title as LRs of defendant No.1 are also included in that Family Tree.
15. Now, while going through cross examination of PW 1, the learned counsel for defendant No.6 tried to elicit contra about the relationship of plaintiffs with deceased G. Vishwanathaiah, but 16 O.S.No.7129/1997 - Judgment did not succeed in eliciting contra to plaintiffs averment regarding said relationship. In page No 15 of her cross examination she has stated as:-
" The person referred to by name Sri Garadi Pillaiah in my affidavit is my maternal grand-father, who also happens to be my father in law. He had three daughters and a son. Daughters by names Smt. Lakshmidevamma, Smt. Savithramma and Smt. Ramarathnamma. Son by name G. Vishwanathaiah. My husband G. Vishwanathaiah died on 7.5.1997."
16. Here, it reveals that plaintiffs No.1 is granddaughter of Garadi Pillaiah too. But, in Ex.P 60 it is not mentioned as she is daughter of defendant No.1.
17. But, this suit is filed by her as wife of G. Vishwanathaiah. Further in page No 19 stated as:-
" Vishwanathaiah is my maternal uncle. My grand father Garadi Pillaiah has three daughters and a son. At the time of my marriage, my mother, grand mother, my maternal grand father, my husband's sisters and cousin brothers were present. My mother's name is Lakshmidevamma, who is defendant No.1 herein. Defendants 1(a) to 1(c) are my sisters and defendant No.1(b) is my brother. At the time of my marriage, I was aged 17 years. Marriage photos were taken and the photos are given in another case. Photographs are not produced in this case. The photographs were taken in the studio on the same day of my marriage."17
O.S.No.7129/1997 - Judgment
18. In cross examination dated 28-10-2013, PW 1 has stated as:-
"My daughter Madhurya born in the month of December, 1990. She has studied upto P.UlC., in Sheshadripuram College. I have no impediment to produce the educational certificates of my daughter Madhurya before the Court."
19. A birth certificate without the name of plaintiff No.2 is produced which is marked as Ex.P.27 which shows that a female child born to G. Vishwanath and Chandramma on 09-12-1990. Ex.P 33 and Ex.P 34 are the voter's ID cards of plaintiff Nos.1 and 2 respectively which shows that they are wife and daughter of Late G. Vishwanath. Ex.P 36 is the driving licence of plaintiff No. 1 issued on 29-12-1997 shows her husband's name as G.s Vishwanathaiah. Ex.P 43 and Ex.P 43(a) are the photograph and negative and stated as they are their photograph as on their wedding day. Ex.P 42 and Ex.P 43 are marriage invitation of plaintiff No.1 and Vishwanathaiah. It corresponds with cross examination of PW 1 in page No 19 as:-
"I produced the document to show that I am the wife of Vishwanathaiah. Witness again says that no document produced to show I am the wife of Vishwanathaiah. Witness volunteers to show she is the wife of Vishwanathaiah produced the document in OS No.7741/1997. My marriage celebrated with Vishwanathaiah on 19.02.1969 Brahamananda Matt at Ramachandrapuram. I have invitation cards and marriage photos and given the same in OS No.7741/1997".18
O.S.No.7129/1997 - Judgment
20. Ex.P.46 is the PUC marks card of plaintiff No.2 which shows that she is daughter of G. Vishwanathaiah and Chandramma S.
21. Further, there is no dispute about plaintiff No.1 is daughter of defendant No.1 as none of the written statement stated about the same. Only dispute is plaintiff No.1 is not legally wedded wife of deceased G Vishwanathiah. In page No 7 of cross examination of D W 1 it is admitted by him as:-
"I have no documents to show that Smt. Susheelamma is the first wife of Viswanathaiah and Meenakumari is the daughter of Viswanathaiah. But, Susheelamma and Meenakumari were residing with Viswanathaiah. I know Viswanathaiah since 4-5 years."
22. Since 4-5 years means after filing of this suit. Further he has admitted that he has not ascertained the genealogical tree of Vishwanathaiah's family before purchasing the property and he has not ascertained how many children to Garadi Pillaiah. Further stated that he purchased property from G. Vishwanathaiah in the year 1997 and he has not taken any documents from him at the time of purchase.
23. Surprising point is in page No 9 of his cross examination DW 1 sated as:-
" I do not know that plaintiff No.1 is the wife of Viswanathaiah and Plaintiff No.2 is the daughter of 19 O.S.No.7129/1997 - Judgment Viswanathaiah. It is true to suggest that I had sent a legal notice to Plaintiff No.1 through my advocate. Certified copy of the said legal notice is marked as Ex.P.62. Myself given instructions to my advocate to prepare and send Ex.P.62."
24. On perusal of Ex.P 62 and Ex.P 39, both are the same documents that is legal notice dated 09-10-1996, addressed to Plaintiff No.1 as "Smt. S. Chandramma, W/o. Late G. Vishwanathaiah. The said notice was sent in the year 1996 and the same is marked as Ex.P 28 in some other case. In paragraph 1 of Ex.P 62 it is noted as "property sold by G. Vishwanathaiah to one Mr. Mahaveer Chand Choradia belongs to your husband late G. Vishwanathaih". Then, prior to filing of this suit, this defendant was aware that plaintiff No.1 is wife of G. Vishwanathaiah. In page No.5 DW 2 has stated as:-
"1ನೇ ವಾದಿಯು ತಾನು ವಿಶ್ವನಾಥಯ್ಯನವರ ಧರ್ಮಪತ್ನಿ ಎಂದು ತೋರಿಸಲು ಹಾಜರು ಪಡಿಸಿದ್ದ ದಾಖಲೆಗಳನ್ನು ನಾನು ಪರಿಶೀಲಿಸಿದ್ದೇನೆ. ಆ ದಾಖಲಾತಿಗಳನ್ನು ನಾನು ಈ ದಾವಾದಲ್ಲಿ ಮತ್ತು ಇನ್ನೊಂದು ದಾವಾದಲ್ಲಿ ಹಾಜರುಪಡಿಸಿದ್ದನ್ನು ಪರಿಶೀಲಿಸಿದ್ದೆನು."
25. Next to that in page No.8 DW 1 has stated as:-
"ಆದರೆ ಅವರು ನನಗೆ ಆ ವಂಶವೃಕ್ಷವನ್ನು ಕೊಟ್ಟಿರಲಿಲ್ಲ. ಸುಶೀಲಮ್ಮ ವಿಶ್ವನಾಥಯ್ಯನವರ ಹೆಂಡತಿ ಎಂದು ತೋರಿಸಲು ನಾನು ನ್ಯಾ ಯಾಲಯಕ್ಕೆ ಯಾವುದೇ ದಾಖಲೆಗಳನ್ನು ಕೊಟ್ಟಿಲ್ಲ. ನನ್ನ ಖರೀದಿ ಪತ್ರಕ್ಕೆ ನಾನು ಸುಶೀಲಮ್ಮನವರ ಸಹಿಯನ್ನು ಪಡೆದುಕೊಂಡಿಲ್ಲ. 8ನೇ ಪ್ರತಿವಾದಿ ವಿಶ್ವನಾಥಯ್ಯನವರ ಹೆಂಡತಿ ಮತ್ತು 9ನೇ ಪ್ರತಿವಾದಿ 20 O.S.No.7129/1997 - Judgment ಅವರ ಮಗಳು ಎಂದು ತೋರಿಸಲು ನನ್ನ ಬಳಿ ದಾಖಲೆಗಳು ಇವೆ. ನನ್ನ ಬಳಿ ಇರುವ ದಾಖಲೆ ಎಂದರೆ 9ನೇ ಪ್ರತಿವಾದಿಯ ಶಾಲಾ ಅಂಕಪಟ್ಟಿಯ ಜೆರಾಕ್ಸ್ ನಕಲು ಮತ್ತು ಆಕೆಯ ಜನನ ಪ್ರಮಾಣಪತ್ರ. 1991 ನೇ ಸಾಲಿನಲ್ಲಿ 9ನೇ ಪ್ರತಿವಾದಿಯುು 2-3 ವರ್ಷ ವಯಸ್ಸಿನ ಮಗುವಾಗಿದ್ದಳು. 8ನೇ ಪ್ರತಿವಾದಿ ವಿಶ್ವನಾಥಯ್ಯನವರ ಹೆಂಡತಿ ಅಲ್ಲ 9ನೇ ಪ್ರತಿವಾದಿ ಅವರ ಮಗಳು ಅಲ್ಲ ಎನ್ನು ವುದು ನಿಜವಲ್ಲ.
ನಾನು ಈ ದಾವಾ ಹಾಕುವ ಮೊದಲು ಈ ವಾದಿಯ ವಿರುದ್ಧ ಇದೆ ಆಸ್ತಿಯ ಬಗ್ಗೆ ಓ ಎಸ್ 7741-1997 ಎನ್ನು ವ ಇಂಜೆಂಕ್ಷನ್ ದಾವಾ ಮಾಡಿದ್ದೆ ಎನ್ನು ವುದು ನಿಜ. ಆ ದಾವಾದಲ್ಲಿ ನಾನು ವಿಶ್ವನಾಥಯ್ಯವರಿಗೆ ಈ ದಾವೆಯ 8ನೇ ಪ್ರತಿವಾದಿ ಹೆಂಡತಿ ಮತ್ತು 9ನೇ ಪ್ರತಿವಾದಿ ಮಗಳು ಎಂದು ಹೇಳಿದ್ದೇನೆ ಎನ್ನು ವುದು ನನಗೆ ನೆನಪಿಲ್ಲ."
26. Now, we have to look into the evidence of DW 3 who is 2nd defendant herein. In paragraph 2 of her affidavit of examination in chief, she has stated as the late G. Vishwanathaiah is husband of 1st plaintiff and 2nd plaintiff is their daughter. In this suit, she asked for her 1/4th share with separate possession over the suit schedule property. She faced the cross examination by the learned counsel for plaintiffs and admitted as:-
"ನನ್ನ ತಂದೆ ಗರಡಿ ಬಿಳ್ಳಯ್ಯನವರಿಗೆ ನಾವು 3 ಮಂದಿ ಹೆಣ್ಣು ಮಕ್ಕಳು ಮತ್ತು ಒಬ್ಬ ಗಂಡು ಮಗ. ನನ್ನ ತಮ್ಮ ವಿಶ್ವನಾಥಯ್ಯ 1ನೇ ವಾದಿ ಚಂದ್ರಮ್ಮನ ಗಂಡ. ಅವರ ಮದುವೆ 1969 ನೇ ಸಾಲಿನಲ್ಲಿ ಆಗಿತ್ತು . 2ನೇ ವಾದಿ ಅವರ ಮಗಳು. ದಾವಾ ಸ್ವತ್ತು ಮೂಲತಃ ನನ್ನ ತಂದೆಗೆ ಸೇರಿದ್ದು . ನನ್ನ ತಂದೆ ಅವರ ಜೀವಿತ ಕಾಲದಲ್ಲಿ ದಾವಾ ಸ್ವತ್ತಿಗೆ ಸಂಬಂಧಪಟ್ಟಂತೆ ಯಾವುದೇ ದಾನ ಪತ್ರ ಅಥವಾ ವೀಲುನಾಮೆ ಯನ್ನು ಮಾಡಿಲ್ಲ. ಈ ದಾವಾ ಹಾಕುವ ಕಾಲಕ್ಕೆ ದಾವಾ ಸ್ವತ್ತು ನನ್ನ ಮತ್ತು ವಾದಿಯರ ಸ್ವಾ ಧೀನದಲ್ಲಿ ಇತ್ತು . ನನ್ನ ತಮ್ಮ ವಿಶ್ವನಾಥಯ್ಯ 1ನೇ 21 O.S.No.7129/1997 - Judgment ವಾದಿಯನ್ನು ಬಿಟ್ಟು ಬೇರೆ ಯಾರನ್ನೂ ಕೂಡಾ ಮದುವೆ ಆಗಿಲ್ಲ. ನನಗೆ ತಿಳಿದಂತೆ ನನ್ನ ತಮ್ಮ ಈ ದಾವಾ ಸ್ವತ್ತನ್ನು ಬೇರೆ ಯಾರಿಗೂ ಮಾರಾಟ ಮಾಡಿಲ್ಲ."
27. In her deposition dated 18-11-2015, it is noted as the learned counsel for defendants submitted as they have no cross examination of DW 3. If the defendants are disputing the plaint claims, then they ought to utilise the opportunity and cross examine this DW 3 as she gave evidence which is corroborating with plaintiffs' case and evidence. But, none of the defendants who has contra contentions against plaintiffs' case taken any pain to cross examine DW 3 which shows that they accepted the evidence of DW 3. On perusal of order sheet, till the last date, none of the counsels for defendants who are challenging the plaint claim has not taken any steps to reopen the stage for cross examination of DW 3 which shows they themselves closed their door for present and future as they themselves stated that they have no cross examination of DW 3.
28. Moreover, in the cross examination of DW 4, in page No.9 he admitted as:-
"ವಿಶ್ವನಾಥಯ್ಯನ ಕುಟುಂಬದ ವಂಶ ವೃಕ್ಷವನ್ನು ನಾವು ಪಡೆದಿಲ್ಲ. ಈ ದಾವೆಯ 1ನೇ ವಾದಿ ಚಂದ್ರಮ್ಮ ವಿಶ್ವನಾಥಯ್ಯನ ಹೆಂಡತಿ ಎಂದರೆ ನಿಜ. 2ನೇ ವಾದಿ ವಿಶ್ವನಾಥಯ್ಯನ ಮಗಳು ಎಂದರೆ ನಿಜ. 2ನೇ ವಾದಿ 1994 ಕ್ಕಿಂತ ಮೊದಲೇ ಜನಿಸಿದ್ದಳು ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ."
29. Though the defendant No.5 in his written statement specifically disputed the legal marital relationship of plaintiff No.1 22 O.S.No.7129/1997 - Judgment with deceased Vishwnathaiah, but he has not cross examined DW 4 though he admitted as 1st plaintiff is wife of deceased Vishwnathaiah.
30. In the evidence of DW 5, who is defendant No.9 admitted that the A schedule property in the plaint is ancestral joint family property of the family of Garadi Pillaiah and stated that A schedule property was partitioned among his four children, but she has not produced such partition deed. She claimed that her mother is legally wedded wife and she is daughter of late Vishwanathiah and stated that this suit is filed without prayer for declaration that plaintiffs are legal heirs. These defendants subsequently entered to this suit without any counter claim for declaration of their legal right and share over the property as though they stated about prior partition, but no documents are produced. The plaintiff No.1 claiming that she wedded him in 1969, but nowhere in the written statement and chief examination affidavit of DW 5 mentioned when and where defendant No.8 married late Vishwanathaiah. They have produced birth certificate and educational documents of DW 5 which shows she is daughter of Late G. Vishwanathaiah and defendant No.8 and they have produced voter's ID of both shows his name, but failed to prove that defendant No.8 married said G.Vishwanathaiah prior to plaintiff No 1. Further, without asking for any share, they prayed to dismiss the suit which shows there is no weightage in their evidence and DW 5 did not take any 23 O.S.No.7129/1997 - Judgment struggle to cross examine her. She did not cross examine either PW 1 or DW 1 to DW 4 though their evidence establishes that plaintiff No.1 is legally wedded wife of Late G. Vishwanathaiah.
31. Further, in the cross examination of DW.1, he admitted that he has filed OS No.7741/1997, which was as dismissed against plaintiffs and the same is noted above. The judgment in said original suit is produced by the plaintiffs and marked as Ex.P 15. Though in the cause title it is mentioned as name of husband of plaintiff No.1 here in not known, but in paragraph 8, there is clear admission by him as she is legally wedded wife of G. Vishwanathaiah and stated about this present case also as:-
"8. During the cross-examination, the PW1 admitted that the suit schedule property was previously owned by Garadi Pillaiah as purchased in Court auction and the vendor of the plaintiff was only the legal heir. But he do not know whether the Garadi Pillaiah had left behind 3 daughters. But admits his widow Acchamma came into possession of the suit schedule property. And further stated that one Susheelamma was the wife of the Vishwanathaiah. But denied the suggestion that he is not in possession of the suit schedule property since 1991. And further denied that the defendant is in possession of the suit schedule property. But admitted a original suit No.7129/1997 was filed by the defendant and her daughter against him which is pending CCH 12. But not denied that the defendant is the legally wedded wife of Viswanathaiah. But admits one Ramarathnamma, Laxmidevamma and Savithramma are the sisters of the Vishwanathaiah were the parties in the said suit. But admits the defendant prayed for cancellation of the said 24 O.S.No.7129/1997 - Judgment sale deed executed by the Vishwanathaiah in favour of the plaintiff. During the corss-examination the plaintiff further stated that the father of the vendor by name Garadi Pillaiah and his mother Achmamma were executed a Will in favour of the Vishwanathaiah. But he do not remember the date of the Will and number of the registration And further admits he has not filed the said will executed by them and denied the suggestion made by the counsel for the defendant that there is no such will executed in favour of the vendors of the plaintiff. On perusal of these documents and oral evidence which shows and it is admitted fact that the suit schedule property was originally beloged to the Garadi Pillaiah who is the father of the vendor Vishwanathaiah. And thereafter the son of the Garadi Pillaiah that is Vishwanathaiah executed the sale deed in favour of the plaintiff dated 24.07.1991. It is also admitted by the plaintiff that the said Viswanathaiah had 3 daughters. Namely Ramarathnamma, Laxmidevamma and Savithramma. And also it is admitted fact that the defendant and her daughter filed a suit against the plaintiff and sisters of the vendor in OS No.7129/1997 which is pending in CCH 12 wherein the defendant sought for the relief of partition and declaration for cancellation of the sale deed executed by the Viswanathaiah. But the further case of the plaintiff is that the defendant is not at all wife of the Viswanathaiah. But one Susheelamma. To prove his contention, the plaintiff not produced any document to show the defendant was not the wife of Viswanathaiah. And also he was not proceed any documents or examine the said Susheelamma to prove one Susheelamma was the wife of Viswanathaiah."25
O.S.No.7129/1997 - Judgment
32. Further, in page No 11, it is opined as this plaintiff has got undivided share in the property of the Garadi Pillaiah. The birth certificate of Plaintiff No.2 is marked as Ex.D 6 in that case. The evidence of DW 1 herein and plaintiff of that case is marked as Ex.P 63 through confrontation to DW 1. Ex.P 51 and Ex.P 52 are the memorandum of appeal and judgment in RFA No.1673/2005 filed by DW 1 herein against plaintiff No.1 aggrieved by dismissal order in OS No.7741/1997 which was dismissed for non-prosecution and the same has attained finality as there is no restoration of the same. Though in Ex.P 52, this defendant mentioned the name of husband of plaintiff herein is not known, but in the legal notice which is confronted to him here which is marked as Ex.P 62 and Ex.P 39 here and Ex.P 28 in another case, he mentioned her husband's name as Late G. Vishwanathaiah. Further, in Ex.P 24 to Ex.D 26, the HRC petitions filed by plaintiff No.1 and defendant Nos.1 and 2 together against different tenants in respect of number of premises shows that name of the husband of plaintiff No.1 as G. Vishwanathaiah and though these documents are marked in chief of PW 1 herein, but nothing contra is elicited by other defendants as these HRC proceedings show that defendant Nos.1 and 2 herein are playing similar role as petitioners under same roof. The other defendants who contested here failed to elicit contra from PW1 and DW 3.
26
O.S.No.7129/1997 - Judgment
33. Importantly, Ex.P 40 shows the name of husband of plaintiff No 1 as G Vishwanathatah.
34. But, whatever it may be the relationship between plaintiff No. 1 and 2 with late G. Vishwanathaiah, but the plaintiffs suppressed the material facts that she is one of the daughters of Defendant No.1. Even after death of defendant No.1 too, it is not revealed. Only in her cross examination in page No.6 it is elicited which is reproduced supra. But, the plaint pleadings, evidence of defendant No.2 and written statement and evidence of defendant No.6 and his legal representatives shows that it is collusive suit by plaintiff and defendant Nos.1 to 4 and defendant No.6 against defendant No 5 where there is clear material suppression in the plaint about relationship of plaintiff with Garadi Pillaiah as his granddaughter. Though defendant No.6 and defendant No.5 did not cross examine each other, but in the cross examination of PW 1 by the learned counsel for defendant No.6, it is elicited in page No.15 as the plaintiff No.1 is granddaughter of Garadi Pillaiah as:-
" The person referred to by name Sri Garadi Pillaiah in my affidavit is my maternal grand father, who also happens to be my father in law. He had three daughters and a son. Daughters by names Smt. Lakshmidevamma, Smt. Savithramma and Smt. Ramarathnamma. Son by name G. Vishwanathaiah. My husband G. Vishwanathaiah died on 7.5.1997".27
O.S.No.7129/1997 - Judgment
35. Moreover, as per reproduced portion of her cross examination by learned counsel for defendant No.5, it is clearly elicited that she is grand daughter of Garadi Pillaiah.
36. Further, in her cross examination, she has stated that she has filed suit for declaration that they are the legal heirs of Vishwanathaiah and the judgment and decree of that case marked as Ex.P 15 and Ex.P 16. But, that case is filed by defendant No.5 herein against this plaintiff at the pendency of this suit for the relief of permanent injunction and though there is discussion about this plaintiff as wife of Vishwanathaiah, but that suit was dismissed on the ground that this OS No.7129/1997 is pending and one court cannot tie the hands of other court. Therefore, the plaintiff totally suppressed the material facts and relationships with the original propositus Garadi Pillaiah and when, she is grand daughter of Garadi Pillaiah, if there is no partition over the suit schedule property in his life time, then she is duty bound to disclose each facts of relationship, hence, the plaintiffs failed to prove the genealogical tree as genuine.
37. Therefore as per the facts and circumstances of the case and above discussions, it is established by the plaintiffs that the plaintiff No1 is legally wedded wife of Late G Vishwanathaiah and plaintiff No.2 is their daughter. Further, it is also found that plaintiff No.1 is granddaughter of Garadi Pillaiah through his daughter defendant No.1 but plaintiff suppressed the same in the 28 O.S.No.7129/1997 - Judgment plaint and genealogical tree. On the other hand, the documentary evidence of Defendant Nos.8 and 9 shows that they are the wife and daughter of Late G.Vishwanathaiah but failed to prove that defendant No.8 is legally wedded wife of him. Moreover, they did not pray any relief. Hence, this court answers Issue No.1 in the Negative and Additional Issue No 1 to 3 dated 03-07-2013 as Negative.
38. Issue Nos.2 to 7, Addl.Issue No 4 dated 31-08-2015, Addl. Issue No 1 dated 28-06-2018 and Addl.Issue No 1 and 2 dated 29-03-2021 : These 10 Issues are inter-connected to each other, hence taken up together for discussion here under;
In the documentary evidence of PW 1. Ex.P 1 is the sale deed dated 24-08-1939 through which Garadi Pillaiah purchased suit schedule property in the auction sale while executing court decree which is admitted by DW 1 in his cross examination page No 8 as:-
"Suit schedule property is comprised in Sy.No.65/2 of Kethamaranahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk. I do not know that Garadi Pillaiah purchased the suit schedule property on 20.11.1939 through court auction".
39. Further, in paragraph 2 of page No 8 of cross examination of DW 4 also admitted as:-
29
O.S.No.7129/1997 - Judgment "2. ದಾವಾ ಆಸ್ತಿ ಮೂಲದಲ್ಲಿ ಗರಡಿ ಪಿಳ್ಳಯ್ಯನಿಗೆ ಸೇರಿತ್ತು ಎಂದರೆ ನಿಜ. 1940 ರಲ್ಲಿ ಗರಡಿ ಪಿಳ್ಳಯ್ಯ ದಾವಾ ಆಸ್ತಿಯನ್ನು ನ್ಯಾ ಯಾಲಯ ಹರಾಜು ಮೂಲಕ ಖರೀದಿಸಿದ್ದನು ಎಂದರೆ ನಿಜ."
40. Ex.P 2 to Ex.P 5 and Ex.P 17 to Ex.P 22, Ex.P 47 to Ex.P 49 are the tax paid receipts in respect of suit schedule property paid by Garadi Pillaiah and G Vshwanathaiah. In page No 11 of cross examination of DW 1 he has admitted that he has not paid tax on B schedule property.
41. Ex.P 6 and Ex.P 7 are the death certificate of Garadi Pillaiah and G. Vishwanathaiah respectively. Ex.P 10 is the certified copy of sale deed dated 27-07-1991 executed by Vishwanathaiah in favour of defendant No.5. Exs.P 11 to Ex.P14, Ex.P 45, Ex.P 54 to Ex.P 58 are the electricity and water bills and installation documents which show the name of plaintiff No.1 in KEB record and name of Vishawanataiah in respect of water connection. Further, Ex.P.15 shows that defendant No.5 herein failed to prove his possession over the suit schedule property. In the cross examination of DW 1 he stated as it is false to suggest that plaintiff and defendant No.1 to 4 are in possession of suit schedule property, but he did not establish who is in possession of suit schedule property. Further, in page No.9 of cross examination of DW 2, he admitted the dismissal of OS No.7741/1997 and RFA No.1673/2005. Further in the cross examination of DW 3, she 30 O.S.No.7129/1997 - Judgment admitted that at the time of filing of this suit, plaintiff and DW 3 are in possession of suit schedule property. She has produced Ex.D 2 and Ex.D 3 the lease deed and rental agreements respectively to establish that they are in possession of suit schedule property through tenants. Moreover in page No.9 of cross examination of DW 4, he admitted that:-
"ದಾವಾ ಬಿ ಆಸ್ತಿಯ ಖಾತಾ ನಮ್ಮ ತಂದೆಯ ಹೆಸರಿನಲ್ಲಿ ಇಲ್ಲ ಎಂದರೆ ನಿಜ. ಆ ಆಸ್ತಿಗೆ ನಮ್ಮ ತಂದೆ ಕಂದಾಯ ಕಟ್ಟಿಲ್ಲ ಎಂದರೆ ನಿಜ. ದಾವಾದ ಬಿ ಆಸ್ತಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ವಿದ್ಯು ತ್ ಮತ್ತು ನೀರಿನ ಸಂಪರ್ಕ ನಮ್ಮ ತಂದೆಯ ಹೆಸರಿನಲ್ಲಿ ಇಲ್ಲ ಎಂದರೆ ನಿಜ. ಸದರಿ ಆಸ್ತಿಗೆ ಸಂಬಂಧಿಸಿದ ಖಾತಾ ಗರಡಿ ಪಿಳ್ಳಯ್ಯನ ಹೆಸರಿನಲ್ಲಿ ಇದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಅದು ವಿಶ್ವನಾಥಯ್ಯನ ಹೆಸರಿನಲ್ಲಿ ಇದೆ. ವಿಶ್ವನಾಥಯ್ಯನ ಹೆಸರಿಗೆ ಯಾವಾಗ ಖಾತಾ ಆಯಿತು ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ."
42. In page No.11, he again stated as:-
"5ನೇ ಪ್ರತಿವಾದಿ ದಾವಾ ಆಸ್ತಿಗಳ ಯಾವುದೇ ಭಾಗದಲ್ಲಿ ಸ್ವಾ ಧೀನ ಇಲ್ಲ ಎಂದರೆ ನಿಜ. ನನ್ನ ಮುಖ್ಯ ಸಾಕ್ಷಿಯ ಪ್ರಮಾಣ ಪತ್ರದಲ್ಲಿ ಹೇಳಿರುವಂತೆ ವಾದಿಗಳು ಸ್ವಾ ಧೀನ ಇದ್ದಾ ರೆ ಎನ್ನು ವ ಜೈ ಮಾರುತಿ ನಗರದ ಆಸ್ತಿ ಸಂಖ್ಯೆ 76 ರ ದಾಖಲೆಗಳನ್ನು ನಾನು ನೋಡಿಲ್ಲ. ಅದೇ ರೀತಿ ವಾದಿಗಳು ಸ್ವಾ ಧೀನ ಇದ್ದಾ ರೆ ಎಂದು ಹೇಳುವ ವೆಸ್ಟ್ ಆಫ್ಕಾರ್ಡ್ರೋಡ್ಆಸ್ತಿ ಸಂಖ್ಯೆ 789 ರ ಆಸ್ತಿಯ ದಾಖಲೆಗಳನ್ನು ನಾನು ನೋಡಿಲ್ಲ."
43. Ex.P 50 is the order passed by KAT in Appeal No 470/2006(Revenue) filed by the plaintiff No.1 herein to set aside order of BBMP which came to be allowed and she was permitted to carryout repair work, even otherwise, for repair permission is not necessary as it is need of human with living condition which 31 O.S.No.7129/1997 - Judgment shows that plaintiffs are in possession of suit schedule property. But, in this order, it is clearly stated by the authority that there is a civil suit pending and accordingly, they will not discuss about who is in possession of the property.
44. Ex.P 28 to Ex.P 32 are the medical reports of G. Vishwanathaiah which establishes the statement of PW 1 that said Vishwanathaiah was with plaintiffs at the time of his death.
45. Next to that Ex.P 37 is the certified copy of sale deed dated 04-04-1989 through which plaintiff No.1 purchased a property from BDA and in her evidence, it is established that she is government employee who is having self-earning. Ex.P 38 is the possession certificate in her name in respect of property purchased under Ex.P 37. In both the documents, her husband's name is mentioned as G. Vishwanathaiah.
46. On the other hand, DW 1 that is defendant No.6 has not got marked any documents. Actually, in plaint paragraph 14 stated that defendant No.6 is tenant over the B suit schedule property under Late G. Vishwanathaiah and since his death, defendant No. 6 has not paid rent. The claim against defendant No.5 is that he is alleged purchaser of the suit schedule property or portion of suit schedule property and plaintiff's claim is when Plaintiff No.1 approached defendant No.7 for transfer of khatha and her representation regarding transfer of khatha are marked as Ex.P 9 and legal notice sent by her in this regard is marked as Ex.P 23. 32
O.S.No.7129/1997 - Judgment The endorsement given by defendant No.7 in response to above representation of plaintiff No.1 is marked as Ex.P.8 in which defendant No. 7 refused to accept it as the khatha holders are alive and it is transferred under sale deed. Then, the alleged sale deed executed in favour of defendant No.5 is only produced and defendant No.6 has not produced any documents which gives presumption that he is only tenant under Vishwanathaiah. But, in his cross examination, he has stated that he has purchased property from Vishwanathaiah in the year 1997. Further in page No 10 and 11 the DW 1 admitted as:-
" I have not given paper publication before purchasing the suit B schedule property. At the time of purchasing the property, I heard regarding health of Garadi Pillaiah. But, I do not know when Garadi Pillaiah died. At the time of purchasing the property, I asked Vishwanathaiah regarding how many issues to him and he told that he is having only one daughter. Not obtained consent of plaintiffs to sell the suit schedule property."
47. Then, if the defendant No.5 who is contesting this case ought to cross examine him, but did not utilise such opportunity to defend his side. But, the plaint pleadings, evidence of defendant No.2 and written statement and evidence of defendant No.6 and his legal representatives shows that it is collusive suit by plaintiff and defendant Nos.1 to 4 and defendant No.6 against defendant 33 O.S.No.7129/1997 - Judgment No.5 where there is clear material suppression in the plaint about relationship of plaintiff with Garadi Pillaiah as his granddaughter.
48. Though DW 1/defendant No.6 has not produced any documents, but his legal representative who is examined as DW 4 produced the certified copy and typed copy of sale deed dated 14- 11-1994 executed by Vishwanathaiah in favour of defendant No.6 which are marked as Ex.D 8 and Ex.D 8(a).
49. The schedule of the sale deed of this defendant No.6 did not correspond with suit schedule property. In South, it is mentioned as "property sold to Mahaveerchand Brorari in same property No. 10. This sale deed is registered one and the plaintiff stated him as tenant, but she ought to take certified copy of the same from concerned registrar office and has to produce the same. But, she is aware about sale of B schedule property to defendant No. 5 and 6 as per endorsement given by defendant No7. But, plaintiff has produced only the certified copy of sale deed executed in favour of defendant No.6 though she has every opportunity to obtain certified copy of Ex.D 8. Further, defendant No.6 himself not produced it and surprisingly defendant No 6(a) produced at later stage. And plaintiff also produced after part cross examination which is Ex.P 64 and 64(a). This DW 4 produced his educational documents, the ration card of defendant No 6, the EC which shows entry of his sale deed under Ex.D 8/Ex.D 9. Further he has produced original sale deed in Ex.D 8 which is marked as 34 O.S.No.7129/1997 - Judgment Ex.D 9. Surprising point is in this sale deed nowhere the defendant No.6 put his signature. The two witnesses' signatures are there without their address and details. Most surprising point is in this sale deed the Southern boundary mentioned as the property sold to Mahaveerchand who is 5th defendant here. This sale deed shows that there is a full equipped house building but he has not produced any document of electricity and water connection. Further, if we compare this Ex.D 9 with Ex.D 1 the sale deed of defendant No 5, the Northern boundary does not correspond with Southern boundary in Ex.D 6 which is mentioned supra. Ex.D.1 is executed in the year 1991 and Ex.D 9 is alleged to have been executed in the year 1994, then the Northern boundary in Ex.D 1 it shall be the property of defendant No.6. Another, important point to be noted here is the property in Ex.D 1 is the house property No.C-53 in Corporation No.10. In Ex.D 9, no property number is mentioned. It is just mentioned Corporation No.10. In plaint schedule, A property is house property in Municipal No.10 (Old.C
59) and B Schedule property is Property No.10 (Old No C-58). The suit schedule properties did not correspond with each other and plaint property is totally different. There is no single narration in the plaint with this description of plaint schedule/suit schedule properties.
50. In this sale deed clearly stated as the seller gave khatha with his signature to transfer khatha on the date of sale deed. 35
O.S.No.7129/1997 - Judgment Then question will arise why from 1994 till 23-01-2001 (Ex.D 19) the defendant No.6 has not taken any action to transfer the khatha in his name. Ex.D.10 to Ex.D.14 shows that khatha in the name of Vishwanathaiah (Ex.D 10 and Ex.D 11) and subsequently in the name of Chandramma (Ex.D 13, Ex.D 14, Ex.D 16 and Ex.D
17). If khatha is in the name of Chandrmma at present, then how plaintiff stated that khatha is in the name of Defendant Nos.5 and 6 in the plaint and produced such endorsement issued by defendant No.7. In Ex.D 19 the same defendant No.7 gave similar endorsement to defendant No.6(a) at the pendency of suit which gives presumption about reliability of both the endorsements. Ex.D.20 and other documents which are produced to show defendant No.6(a) to (c) are legal heirs of defendant No.6 will not help much here as there is no dispute on the same.
51. As in her cross examination PW 1 has stated that her husband was in the habit of occasional drinking and in good health and no other bad habit than occasional drinking. The original sale deed executed in favour of defendant No.5 clearly says that he sold property for family necessities. Then, if we go through cross examination of W 1 in page No 16 she stated as:-
"The defendant No.6 is not related to our family. The defendant No.6 was paying monthly rent of Rs.300/- for the portion of the suit property occupied by him as tenant. My husband, my daughter and the three sisters of my husband have got equal shares in the suit property. It is not true to say 36 O.S.No.7129/1997 - Judgment that my husband, during his life time, has sold the portion of the suit property in favour of the 6th defendant for legal necessity ofthe family."
Then how Ex.D.9 came to existence?
52. Further, plaintiffs failed to prove the possession of plaintiffs and defendant Nos.1 to 4 together in the suit schedule property as she herself produced documents of her self-acquired property in Ex.P.37 in which she is addressed her residence as N.789, 4th Block, III stage, West of Chord Road, Rajajinagar and in page No 22 and 23, the PW 1 stated as:-
" Defendant No 3 and 4 are the children of Savithramma, who is the elder sister of my husband. At the time of filing this suit, 3rd defendant was residing with me and the 4th defendant was residing in Padarayanapura. Where the the 3rd and 4th defendants were residing at the time of filing this suit, I shown the same address in the cause title.
The defendant No.2 was residing near my house ie., Bhashyam Nagar, near Ramachandrapuram. Defendant No.2 is alive. At the time of death of Vishwanathaiah, he was aged about 45-46 years. It is true to suggest that during the year 1991-92, Vishwanathaiah was healthy."
53. Further, in page No.47, PW 1 has stated as:-
"6ನೇ ಪ್ರತಿವಾದಿಯ ಮಕ್ಕಳು ಈಗ ದಾವಾ ಬಿ ಶೆಡ್ಯೂ ಲ್ನಲ್ಲಿ ಇದ್ದಾ ರೆ ಎಂದರೆ ನಿಜ.
ನಾನು ಈಗ ನಂಬರ್ 76, 4ನೇ ಅಡ್ಡರಸ್ತೆ, ಜಯಮಾರುತಿನಗರ, ಬೆಂಗಳೂರಿನಲ್ಲಿ ವಾಸ ಇದ್ದೇನೆ ಎಂದರೆ ನಿಜ."37
O.S.No.7129/1997 - Judgment
54. Though DW 2 stated that suit schedule property is ancestral property of Vishwanathaiah, but he also stated as the family tree not shown to him which shows that vendor did not comply his obligation and liability and duty as a vendor which is prescribed under law.
55. Therefore, as per the facts and circumstances of the case and above discussions, here we find material suppression by the plaintiffs and plaintiffs failed to prove the genealogical tree, then, though plaintiffs relied upon two citations such as (1999) 3 SCC 513 ( Sri.Viyadhar vs Manikrao and another) and (1983) 3 SCC 118 (State of Bihar vs Sri Radhakrishna Singh) will not help them as the facts and circumstances of the present case are totally different from that cases. Further, though plaintiffs proved that originally the suit schedule property was their joint family property but failed to prove that sale deed executed to defendant No.5 is null and void as it shows that her husband sold it for family necessities and defendant Nos.1 to 4 who are his siblings and their legal representatives till the filing of this suit did not ask for partition of suit schedule property. Further, plaintiff N.1 suppressed her relationship with G.Vishwanathaiah as niece through his sister as daughter of his sister she asked for partition as his wife which is total material suppression and accordingly as she has not claimed her right as coparcener of Garadi Pillaiah, then definitely she surrendered her right to ask for partition for the present and 38 O.S.No.7129/1997 - Judgment future as daughter of defendant No.1 which is hit by the "principle of estoppel" too. As the wife of Vishwanathaiah, she has filed this suit and the defendant Nos.1 to 4 are trying to get partition as daughters of Garadi Pillaiah, but they till the plaintiff filing this suit did not take any pain to file a suit against G. Vishwanathaiah and after his death against Plaintiffs here in which shows that both the plaintiffs and defendant Nos.1 to 4 failed to prove their case. Accordingly, plaintiffs and defendant No.2 including defendant Nos.1, 3 and 4 failed to establish their right for partition under Section 6A of Hindu Succession Act 1956. When the plaintiffs failed to prove family tree which is the main ingredient for partition and further as discussed supra failed to prove the sale deed executed in favour of defendant No.5 and accordingly, though the suit schedule property is ancestral property, but they failed to prove the sale deeds as null and void and as she suppressed as daughter of defendant No.1 shows that the property of Garadi Pillaiah lost the nature of suit A schedule property as joint family property. Further, as discussed supra, the plaintiffs failed to prove the possession and enjoyment by plaintiffs and defendant Nos.1 to 4 and the defendant No.6(a) failed to prove other properties of Garadi Pillai left in this case and plaintiff failed to prove illegal interference by defendants. As the suit is for partition, permanent injunction and declaration, but there is no prayer for cancellation of alleged sale deeds which shows that plaintiff are avoiding 39 O.S.No.7129/1997 - Judgment payment of court fee. As per above findings this Court answers Issue No.1 to 7 in the Negative, Additional Issue No 4 dated 31-08- 2015 in the Negative, Additional Issue No 1 dated 28-06-2018 in the Negative and Additional Issue No 1 and 2 in the Negative.
56. Issue No 8 :- For the forgoing above reasons and in view of negative answer to Issues as above, the plaintiffs have filed to prove their case and accordingly, the suit deserves to be dismissed and hence, this Court proceeds to pass the following:-
ORDER The suit filed by the plaintiffs is dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Senior Sheristedar on computer, typed by and print out thereof is taken by him, after corrections, signed and then pronounced by me in open Court on this the 2nd day of May 2025).
(SMT. JYOTHSNA D.,) XVI ADDL. CITY CIVIL & SESSIONS JUDGE (CCH12), BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:-
PW.1 Smt.Chandramma
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:-
Ex.P-1 Sale deed dated 24.08.1939
Ex.P-2 to 5 Tax paid receipts
40
O.S.No.7129/1997 - Judgment
Ex.P-6 Death certificate of Garadi Pillaiah
Ex.P-7 Death certificate of Vishwanathaiah
Ex.P-8 Endorsement dated 22.08.1996
Ex.P-9 Office copy of representation dated 23.09.1996
made by PW1 to Commissioner BCC
Ex.P-10 Certified copy of sale deed dated 27.07.1991
Ex.P-11 Certified copy of Ex.P17 marked in HRC case
Ex.P-12 Water bill for the month of November 1997
Ex.P-13 Two bills issued by BWSSB
& 14
Ex.P-15 Certified copy of Judgment passed in
O.S.7741/1997
Ex.P-16 Certified copy of Decree IN O.S.No.7741/1997
Property tax paid receipts dated
29.07.2009,11.05.2010, 16.03.2009
Ex.P.17 to 19 Property Tax Receipts
Ex.P.20 to 22 Endorsements issued by BBMP dated 26.7.2009, 11.5.2010 and 16.3.2009 Ex.P.23 Office copy of Legal Notice dated 1.10.1996 Ex.P.24 & 25 Certified copy of Judgment and Decree in HRC 1264 to 1267 of 199 Ex.P.26 Certified copy of Judgment in common in HRC 1113 and 1114 of 1998 dated 3.12.2004 Ex.P.27 Death certificate Ex.P.28 Medical Certificate Ex.P.29 Attested copy of Case History Ex.P.30 Reference Letter Ex.P.31 Cash Bill Ex.P.32 Patient Receiving Letter Ex.P.33 & 34 Election Identity Cards Ex.P.35 Ration Card Ex.P.36 Driving Licence Ex.P.37 Sale Deed Ex.P.38 Certified copy of Possession Certificate Ex.P.39 Copy of Legal Notice 41 O.S.No.7129/1997 - Judgment Ex.P.40 Certified copy of Voters List Ex.P.41 & 42 Marriage Invitation Cards Ex.P.43 Photograph Ex.P.43(a) Negative Ex.P.44 Memo Ex.P.45 Electricity Connection Letter Ex.P.46 Marks Card Ex.P.47 to 49 Tax Paid Receipts Ex.P.50 Certified copy of Judgment in Appeal 470/2006 Ex.P.51 Certified copy of Judgment in RFA 1673/2005 Ex.P.52 Certified copy of Regu;ar Fist Appeal Ex.P.53 Certified copy of Judgment in HRC 1268/1999 Ex.P.54 to 58 Water Bills Ex.P.59 Certified copy of Voter's List Ex.P.60 Affidavit Ex.P.61 Ration Card Ex.P.62 Certified copy of Legal Notice Ex.P.63 Copy of Deposition Ex.P.64 Certified copy of Sale deed Ex.P.64(a) Typed Copy of Ex.P.64 LIST OF WITNESSES EXAMINED FOR DEFENDANTS:-
DW.1 Sri Dhanraj
DW.2 Mahaveer Chand Choradia
DW.3 Smt. Ramarathnamma
DW 4 Vasantha Kumar
DW 5 Smt Meenakumari
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:-
Ex.D-1 Sale Deed
Ex.D-2 Certified copy of Mortgage Deed 12.6.1950
Ex.D-3 Certified copy of Rent Agreement dated
14.6.1950
42
O.S.No.7129/1997 - Judgment
Ex.D-4 Transfer Certificate of DW4
Ex.D-5 SSLC Marks Card belongs to deft.No.6(a)
Ex.D-6 Ration Card belonging to deft.No.6
Ex.D-7 Encumbrance Certificate
Ex.D-8 Certified copy of Sale Deed dated 14.11.1994
executed by Viswanathaiah in favour of
S.E.Dhanraj
Ex.D-8(a) Typed Copy ofEx.P.8
Ex.D-9 Original Sale Deed dated 11.04.1994
Ex.D.10 Khatha Extract in the name of
G.Viswanathaiah
Ex.D.11 Katha Certificate
Ex.D.12 Tax Paid Receipt in the name of Viswanathaiah
Ex.D.13 Katha Extract in the name of S.Chandramma
Ex.D.14 Katha Certiicate in the name of
S.Chandramma
Ex.D.15 Tax Paid Receipt in th name of S.Chandramma
Ex.D.16 Katha Extract in the name of S.Chandramma
Ex.D.17 Katha Certificate in the name of
S.Chandramma
Ex.D.18 Tax Paid Receipt in the name of
S.Chandramma
Ex.D.19 Endorsement dated 23.01.2001
Ex.D.20 Certified copy of Electoral Roll of Dhanraj
Ex.D.20(a) Portion of Ex.D.20 in respect of Sl.No.172 to 173 Ex.D.21 Birth Certificate dated 22.8.1986 of a female born to Viswanathaiah and Susheelamma Ex.D.22 School Progress Report belonging to deft.No.9 Ex.D.23 Notarised copy of SSLC Masrks Card of deft.No.9 Ex.D.24 Notarised copy of Election ID Card of deft.No.8 XVI ADDL. CITY CIVIL & SESSIONS JUDGE (CCH12), BANGALORE.43