Bangalore District Court
Smt.Hemavathi.S W/O vs Sri Shantappa H.Bhama on 5 February, 2020
IN THE COURT OF THE VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH NO.19), BENGALURU
Dated : This the 5th day of February, 2020
PRESENT
Smt.M.LATHA KUMARI, M.A., LL.M.,
VII Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.5058/2018
Plaintiff: Smt.Hemavathi.S W/o.
Sri Shekarappa, aged about
42 years, r/at. Site No.30,
Kengal Road, Honnenahalli
Layout, Sompura Hobli,
Nelamangal Taluk,
Bengaluru Rural District-562
111.
(By Sri Yatheesh Chandra
Y.S, Adv.)
Vs.
Defendants: 1. Sri Shantappa H.Bhama
sagar S/o. Sri
Hanumappa, aged about
68 years, r/at.No.01,
Manjunatha Nilaya,
Vinayaka Layout, Near
Deepa Hospital, Krishna-
rajapuram, Bengaluru-50.
2. Sri.Shivananda S.Bhama-
sagar S/o. Shantappa
H.Bhamasagar, aged
2 OS.No.5058/2018
about 37 years, r/at.
No.01, Manjunatha
Nilaya, Vinayaka Layout,
Near Deepa Hospital,
Krishnarajapauram,
Bengaluru-36.
3. Sri.Manjunatha S.
Bhama sagar S/o.
Shantappa H.Bhama
sagar, aged about 35
years, r/at. No.01,
Manjunatha Nilaya,
Vinayaka Layout, Near
Deepa Hospital, Krishna
rajapauram, Bengaluru-
36.
[By Sri Praveen Kumar
Gupta.B, Adv.]
Date of institution of suit 13.07.2018
Nature of the suit For Partition
Date of commencement
of recording of evidence 11.12.2019
Date on which Judgment 05.02.2020
was pronounced
Total duration Days Months Year
22 06 01
3 OS.No.5058/2018
JUDGMENT
This is plaintiff's suit for partition claiming 1/4th share in respect of property bearing Site No.1, katha No.226/A, property No.29/2, situated at Ward No.52, Krishnarajapuram village, Krishnarajapuram Hobli, Bengaluru East Taluk measuring 1855 Sq.ft., consisting of ground and 1st floor RCC roofed house with all amenities and also property bearing No.19/A, katha No.571, situated at Ward No.52, Krishnarajapuram village, Krishnarajapuram Hobli, Bengaluru East Taluk measuring 1800 Sq.ft., herein after referred to as 'suit schedule item No.1 and 2 properties' respectively.
2. The brief facts of the plaintiff's case is that, plaintiff's mother Smt.Ambamma had acquired item No.1 of suit schedule property and plaintiff's parents i.e., Smt.Ambamma and 1st defendant herein jointly acquired item No.2 of the suit schedule property. It is plaintiff's further case that, defendants No.2 and 3 are her brothers and mother of plaintiff and defendants No.2 and 3 died 4 OS.No.5058/2018 intestate on 3.2.2015 leaving behind plaintiff and defendants as her legal heirs. After the death of Smt.Ambamma, the mother of plaintiff, defendants No.2 and 3, plaintiff approached defendants claiming her share in respect of suit schedule property with the presence of well-wishers and elders on 20.4.2018. The defendants however rejected the claim of the plaintiff and went away from the panchayat convened by the plaintiff. Defendants are making hectic efforts to alienate the suit schedule properties for their wrongful gain. The cause of action for the suit arose on 22.4.2018 when the plaintiff finally demanded partition in respect of suit schedule item No.1 and 2 properties. Defendants are not ready to apportion the property. Hence, plaintiff constrained to file this suit for the reliefs mentioned supra.
3. On issuance of suit summons, defendants appeared through their counsel. 1st defendant resisted the suit of the plaintiff by filing his individual written statement asserting that, plaintiff has not approached the 5 OS.No.5058/2018 Court with clean hands and also denied the case of plaintiff that, plaintiff's mother had acquired the suit schedule properties under registered sale deeds dt: 17.1.2004 and 3.2.2014. He also denied that, another property was acquired by his wife Smt.Ambamma under registered sale deed dt:15.7.2013. It is specifically asserted that, there is no cause of action for the plaintiff to file this suit and alleged cause of action is nothing but an illusion. At Para-5 of the written statement it is specifically mentioned that, this defendant and late Smt.Ambamma being the parents of plaintiff and defendants No.2 and 3, had performed the marriage of plaintiff. Subsequently, the plaintiff, who got married to Sri Sheshappa about 20 years back and started to living in her matrimonial house at Raichuru District. After plaintiff's marriage, the defendant No.2 and 3 were taking care of Smt.Ambamma and this defendant. Thereafter, the 2 nd defendant got married to Smt.Manathamma and has two sons by name Manoj and Akash. 3Rd defendant got married to Smt.Vidyashree and also has two sons by name 6 OS.No.5058/2018 Santhosh and Yashawanth. The wife and children of 2 nd and 3rd defendants are not made as parties to the suit. The suit is not maintainable and bad for non-joinder of necessary parties. 2Nd and 3rd defendants jointly earned and purchased item No.1 of the suit schedule property in the name of their mother Smt.Ambamma under registered sale deed dt:17.1.2004. They also purchased jointly another site bearing No.17, old khata No.262/2, new khata No.2788, measuring east to west 46 ft., and north to south 30 ft., in the name of 1 st defendant under a registered sale deed dt:24.1.2004 and said property was situated at Basavanapura, Krishnarajapura, Bengaluru East Taluk, the same has been given to the share of plaintiff under registered Gift Deed dt:13.6.2007. Subsequently, the plaintiff has executed a release deed in favour of defendants on 19.12.2007 in presence of the witnesses in respect of suit schedule properties and some other properties, which are situated at Manvi Taluk, Raichuru District. This property is not included in the suit and hence, suit is bad for non-inclusion of necessary 7 OS.No.5058/2018 properties. Suit for partial partition is not maintainable. The plaintiff has suppressed these facts and has filed the above case just to harass the defendants. It is further mentioned that, 2nd and 3rd defendant jointly purchased another site bearing No.19/A i.e., item No.2 of the suit schedule property in the name of Smt.Ambamma and 1st defendant herein under registered sale deed dt: 26.6.2013. The defendants have been in possession of the suit schedule properties as their self-acquired properties from the date of purchase. The plaintiff has no right or what-so-ever in respect of suit schedule properties. They are neither the property of Smt.Ambamma nor ancestral properties nor the joint family properties of plaintiff and same has not been purchased out of joint family fund or from the funds of plaintiff. The suit is bad for non-joinder of necessary parties and also plaintiff is having a house and site properties in and around Krishnarajapuram and some other properties in and around Manvi Taluk, Raichuru District. Plaintiff has suppressed these facts and has filed 8 OS.No.5058/2018 this suit. Even the Court fee paid by the plaintiff is not sufficient. Hence pray for dismissal of this suit with cost.
4. 2nd and 3rd defendants jointly filed their written statement almost similar to that of the written statement of 1st defendant and asserted that, plaintiff has not at all included the property given to her and further, she has not disclosed about the Relinquishment Deed executed by her having acquired her share by way of gift as early as in the year 2007 itself and hence, pray for dismissal of this suit as no cause of action and also on the ground of non-joinder of necessary parties and non-inclusion of all properties.
5. Based on these pleadings, this Court framed following issues:
1. Whether Plaintiff proves that item No.1 of the suit schedule property was acquired by her mother Smt. Ambamma and she died intestate on 03.02.2015 leaving behind the Plaintiff and Defendants No.1 to 3 as her legal heirs?9 OS.No.5058/2018
2. Whether Plaintiff further proves that Item No.2 of the property was jointly acquired by her mother Ambamma and 1 st Defendant herein?
3. Whether Plaintiff proves that she approached Defendants on 20.04.2018 claiming her legitimate share in respect of suit schedule properties and Defendants refused to affect partition?
4. Whether the Plaintiff is entitle for ¼th share in respect of Item No.1 and 2 of the suit schedule properties?
5. Whether 1st Defendant proves that Defendants No.2 and 3 jointly purchased another site bearing No.17, Old khata No.262/2 new khata No.2788 measuring 46x30 feet situated at Basavanapura, Krishnarajapura, Bangalore East Taluk under Sale deed dated 24.01.2004 and same has been given to the share of Plaintiff under a registered gift deed dated 13.06.2007?
6. Whether 1st Defendant further proves that in pursuance of registered gift deed dated 13.06.2007 Plaintiff has executed a release deed in favour of Defendants on 19.12.2007 in respect of suit schedule properties and some other properties which are situated at Manvi Taluk, Raichur District?
7. Whether 1st Defendant proves that suit is bad for non inclusion of the necessary properties?
10 OS.No.5058/2018
8. Whether 1st Defendant proves that Plaintiff is having a house and site properties in and around Krishnarajapuram and some other properties in and around Manvi Taluk, Raichur District and Plaintiff has deliberately suppressed these properties in this suit?
9. Whether 1st Defendant proves that Defendants No.2 and 3 jointly purchased Item No.2 of the suit schedule property in the names of Smt. Ambamma and 1st Defendant jointly and Defendants are in possession of the same as their self acquired properties from the date of its purchase i.e., on 26.06.2013?
10.What order or decree?
6. Plaintiff got examined herself as PW.1 and got marked as many as 3 documents Ex.P.1 to Ex.P.3. On behalf of defendants, 1st defendant got examined himself as DW.1 and got marked as many as 7 documents Ex.D.1 to Ex.D.7.
7. I have carefully scrutinized entire records before me. Heard the Arguments and also perused the citations relied upon by plaintiff reported in 2011(9) SCC, 451 and also defendants.
11 OS.No.5058/2018
8. My findings on the above issues are:
Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3 : In the Negative Issue No.4 : In the Negative Issue No.5 : In the Affirmative Issue No.6 : In the Affirmative Issue No.7 : In the Negative Issue No.8 : In the Affirmative Issue No.9 : In the Affirmative Issue No.10: As per final Order, for the following:
REASONS
9. ISSUE NO.1: In Para-4 of the plaint, plaintiff asserts that, her mother Smt.Ambamma had acquired item No.1 of the suit schedule property and she was recorded as khatedar of the same in pursuance of sale deed dt:3.2.2004. No where in the plaint, plaintiff has mentioned about avocation of her mother and also there is no pleading with regard to how plaintiff's mother acquired item No.1 of the suit schedule property. 12 OS.No.5058/2018
10. The plaintiff who got examined herself as PW.1 by reiterating the plaint averments got marked three documents Ex.P1 to P3. Ex.P1 is the Genealogical Tree. Since relationship between parties are not in dispute, this document is not of much relevance. Ex.P2 and P3 are the sale deeds dt:17.1.2004 and 26.6.2013. While considering this issue No.1, the 2nd document i.e., Ex.P2 plays vital role. The sale consideration paid in respect of item No.1 of the property as on 17.1.2004 is shown as Rs.1,85,500/- as per recital in Ex.P2. In her cross- examination PW.1 states that, she has studied upto II PUC and she is house maker married since 22 years ago. She further states that, after her marriage for a period of 7 years she was residing along with her parents' in their house and later she started residing in her matrimonial house. PW.1 admits that, she is residing along with her husband in an own house and her husband is native of Raichur, Manvi Taluk, Lekkihal village. She further states that, his father is working in a factory and she is not at all aware about his salary. She also states that, she was not 13 OS.No.5058/2018 aware of the salary of her father when she was residing with defendants. For the first time in her cross- examination PW.1 has come up with a new story that, her mother was also working at that time, she was carrying on fruit vending business, working as a house maid and also doing animal husbandry. She further states that, she is not aware of the income of her mother at that time out of said avocation. She has denied the contention that, her mother was not having any avocation of her own at that time. PW.1 admits that, she has not produced any document to establish that, even her mother was working at that time and having her own source of income. She also admits in her plaint that, there is no averment to the effect that, her mother was also working at that time. In Page.4 of her cross-examination PW.1 states that, her father's salary was only enough to meet the domestic expenses. She categorically admits that, whatever her parents were having by way of earnings was just enough to meet the family expenses and education expenses of all of them. PW.1 also states that as on 2004 i.e., as on 14 OS.No.5058/2018 the date of Ex.P2 she was married. She has denied the suggestion that, 2nd and 3rd defendant had purchased item No.1 of the suit schedule property in the name of their mother out of their earnings. She admits that, for the said sale deed, one Mallikarjun has put his signature as one of the witness and she is acquainted with said Mallikarjun, inspite of defendants contention that, item No.1 of the suit schedule property was not purchased by Smt.Ambamma and it was purchased by defendants No.2 and 3, plaintiff not made any effort to examine said Mallikarjun, who is one of the witness to the said sale deed Ex.P2. Since as on the date of Ex.P2, plaintiff had already married and she has not produced any document before this Court to establish that, even after her marriage for couple of period she was residing along with her parents themselves, it is probable that, plaintiff was not at all aware, who actually paid the amount on behalf of her mother while purchasing item No.1 of the suit schedule property Ex.P2.
15 OS.No.5058/2018
11. 1St defendant who got examined himself as DW.1 deposes on oath that, his son 3 rd defendant herein who was working as a Security used to give the salary to his mother during her life time. DW.1 categorically states that, properties in question are all purchased by defendants No.2 and 3 themselves. Admittedly, plaintiff has not produced any document to establish the avocation of her mother Smt.Ambamma so also no document to establish that, said Smt.Ambamma was doing fruit vending business and also working as house maid and also carrying on animal husbandry. Inspite of 1 st defendant examining himself as DW.1 before this Court, it was not suggested to DW.1 that, initially wife of DW.1 and mother of plaintiff and defendants No.2 and 3 by name Smt.Ambamma was carrying on fruit vending business and also working as house maid and doing animal husbandry. Above all, there is no pleading in the plaint with regard to how said Smt.Ambamma acquired item No.1 of the suit schedule property. Except the self-statement of PW.1 that, her mother acquired item 16 OS.No.5058/2018 No.1 of the suit schedule property in her name, she has not placed any material before this Court. On the other hand, she admits that she got married in the year 2004 and property has been purchased only after the marriage of plaintiff. Under such circumstances, who actually paid the sale consideration amount under Ex.P2 on behalf of Smt.Ambamma, is not at all known to plaintiff. It is the contention of plaintiff that, her mother died intestate. Whereas, in Page.7 of her evidence, plaintiff asserts that, she is also having site property bearing khata No.288 at Anandgal measuring 30 x 40 sq. ft., and also land bearing Sy.No.87/1 at Anandgal. According to plaintiff, said site and landed property had been given to her by her mother. Whereas, plaintiff has not produced the document in this regard and according to plaintiff, her mother has given said two properties to her by way of gift. Whereas, plaintiff has not produced said Gift Deed before this Court. When plaintiff's mother had given her landed and sital properties situated at Anandgal, she had no impediment to give the item No.1 of the suit schedule 17 OS.No.5058/2018 property to her during her life time itself, but there was no such arrangement effected with regard to apportionment of properties amongst parties herein. During plaintiff's mother life time, handing over of her two properties in favour of plaintiff probabalises that, there was some family arrangement amongst parties.
12. It is the contention of 1st defendant that, partition has already been effected amongst his children and he has already given properties to the plaintiff by way of gift and there is no necessity for him to again partition the property and thereby to allot some more properties in favour of plaintiff for the second time. Plaintiff having admitted in her cross-examination that, her mother has gifted two properties in her favour failed to establish that, her mother died without making any arrangements in respect of item No.1 of the suit schedule property. PW.1 states that, she is not aware of the present status of khata in respect of item No.1 of the suit schedule property. She has also not produced any khata extract standing in the 18 OS.No.5058/2018 name of her mother to show that in pursuance of Ex.P2, khata has been entered in the name of her mother and same has been continued even after her death. When plaintiff can produce certified copy of sale deed dt:17.1.2004 pertaining to item No.1 of the suit schedule property, it is probable that, she was not having any impediment to secure certified copy of the khata pertaining to item No.1 of the suit schedule property. Plaintiff herein is not an illiterate lady. She is literate lady studied up to II PUC. According to her admission in her cross-examination, she has already sold one sital property given to her by way of gift for Rs.10/- lakhs and utilized the sale consideration amount. These circumstances establishes that, plaintiff is having worldly knowledge being literate lady. Under such circumstances, non-production of khata extract pertaining to Ex.P2 requires an adverse inference to be drawn against plaintiff. That apart, plaintiff has also not produced the arrangements made by her mother in respect of other two properties of Anandgal given to the plaintiff herein. All 19 OS.No.5058/2018 these circumstances and also oral testimony of 1 st defendant establishes that, there was some family arrangements in respect of existing properties more particularly suit schedule properties. Defendants also confronted one document styled as Relinquishment Deed i.e., Ex.D5 to plaintiff in her cross-examination. Whereas, PW.1 by denying the execution of any such document on 19.12.2007 specifically mentioned that, the signature Ex.D5(a) forth-coming in the document so also other signatures are not at all her signatures.
13. In the cross-examination of PW.1 her original plaint has been marked as Ex.D1. PW.1 admits that, in the plaint she has put her signature as per Ex.D1(a) to
(e). Since as per Section 73 of the Evidence Act, this Court can always compare the signatures for adjudication of the controversy and also in the interest of equity, the signatures found in Ex.D5 more particularlyEx.D5(a) is compared with the admitted signature of plaintiff in Ex.D1, both appears similar. Plaintiff has approached this Court 20 OS.No.5058/2018 claiming 1/4th share in respect of suit schedule property. The primary burden is on the plaintiff to establish that, there is no such partition effected amongst plaintiff and defendants and she is having share in respect of the same. Under such circumstances, having seen Ex.D5 produced on behalf of defendants, plaintiff not made any effort to send the document Ex.D5 for hand wiring expert to establish that, she has not executed the document Ex.D5 and the signatures found in Ex.D5 are not her own signatures. Under such circumstances, this Court having compared the admitted signatures of plaintiff with that of disputed one, has no impediment to come to the conclusion that there was some family arrangements made in respect of suit schedule properties. All these circumstances establishes that, plaintiff being eldest daughter in the family of defendants, has not approached this Court with clean hand nor establishes that, item No.1 of the suit schedule property was acquired by her mother exclusively out of her own income. Under such circumstances, question of Smt.Ambamma executing any 21 OS.No.5058/2018 Will in respect of the same does not arise. Accordingly, I have answered issue No.1 in the negative.
14. ISSUE NO.2: PW.1 asserted that, as per Ex.P3, item No.2 of the suit schedule property has been acquired by her mother Smt.Ambamma and her father, the 1 st defendant herein jointly, PW.1 has not produced any document to establish independent source of her mother. On the other hand, PW.1 admits in her cross-examination that, the earnings of her father was just enough to meet their day to day expenses and educational expenses. 1 St defendant, who is father of plaintiff and defendants No.2 and 3 asserts that, defendants No.2 and 3 themselves have purchased the properties in question out of their earnings in the name of himself and his wife. It is not the case of plaintiff that, she was not in good terms with defendants herein. On the other hand, 1 st defendant himself has executed Gift Deed in favour of plaintiff herein in respect of some other property, which is not the subject matter of this suit. PW.1 also admits that, even her 22 OS.No.5058/2018 mother has given some of the properties in her name, to plaintiff which includes both sital and landed properties at Anandgal. These transfer of properties by 1 st defendant and his wife in favour of plaintiff, which was not at all objected by defendants No.2 and 3, establishes that, they are in cordial relationship with each other. That apart, it is not the case of plaintiff that, their relationship was strained either prior to or subsequent to death of their mother. In the absence of cogent material that, towards sale consideration of item No.2 of suit schedule property both 1st defendant and his wife jointly paid the amount, the contention taken by plaintiff in this regard appears vague and baseless. Though it is not the case of plaintiff that, her mother Smt.Ambamma was doing fruit vending business apart from working as house maid and also doing animal husbandry, she has not produced any document in this regard and this theory set up by the plaintiff is without pleading and same cannot be considered. Further, as per Ex.P2, item No.2 of the property was purchased on 26.6.2013 i.e., just 5 years 23 OS.No.5058/2018 prior to filing of this suit and also 2 years prior to death of plaintiff's mother. The age of 1 st defendant is shown as 68 years in the plaint cause title. Hence, as on the date of Ex.P2, 1st defendant was aged about 63 years. According to plaintiff, her father's salary was enough to meet the family expenses and educational expenses of all of them. She further states in her cross-examination that, she was married in the year 2004 and she is residing in her matrimonial home. PW.1 has not produced any piece of paper like, Bank Pass Book of her mother or the 1 st defendant herein. As per Ex.P3, the sale consideration amount is shown as Rs.17,10,000/- and same has been paid by way of cash. As I have already stated, plaintiff not produced any piece of paper to establish that, 1 st defendant and her wife were having Rs.17,10,000/- apart from stamp duty charges as on 26.6.2013. Considering the same and also oral testimony of PW.1 discussed supra, I have answered issue No.2 also in the negative. 24 OS.No.5058/2018
15. ISSUE NO.3: According to plaint averments, plaintiff's mother died on 3.2.2015 and plaintiff has filed this suit on 13.7.2018. In Para-7 and 9 of the plaint, plaintiff asserts that, on 20.4.2018 she convened panchayat in the presence of well-wishers and elders and demanded for partition and separate allotment of 1/4th share over the schedule properties, but defendants rejected her claim. Hence, according to plaintiff, cause of action for the suit arose on 22.4.2018 when she finally demanded defendants for partition. Whether plaintiff has established this averment more particularly convening of panchayat on 20.4.2018 and finally demanding the partition from defendants in respect of suit schedule properties on 22.4.2018, is a point to be considered at this stage. In this regard it is again necessary to go through the oral testimony of PW.1 recorded on oath at Page.9 of her cross-examination, wherein PW.1 states that, for the first time she asked her brothers orally to effect partition on 20.4.2018. She further states that, she has not given any notice to 2nd and 3rd defendants herein 25 OS.No.5058/2018 and she asked them at their residence itself. She also states that, her husband, herself and her children went to their house demanding partition and at that time, 2 nd and 3rd defendants were not available at home. She voluntarily stated that, their wives assaulted them and thereby, they returned from there. She categorically states that, even 1st defendant was not available at that time. Hence, when plaintiff visited the house of defendants No.2 and 3 on 20.4.2018 neither defendants No.2 and 3 nor her father, 1 st defendant were available at home. Under such circumstances, the version of plaintiff that, she requested 2nd and 3rd defendant orally, also appears vague and baseless. Another point to be considered at this stage is, whether plaintiff actually visited the house of defendants No.2 and 3 as stated by her on 20.4.2018. In this regard, PW.1 at Page.8 of her cross-examination voluntarily states that, she has not visited the defendants since from the date of death of her mother and her mother died on 3.2.2015. Hence, from the date of death of her mother, plaintiff according to her 26 OS.No.5058/2018 own version, which she has specifically and voluntarily stated before this Court on oath, she has not at all visited the house of defendants subsequent to the death of her mother, who died on 3.2.2015. Under such circumstances, the contention taken by plaintiff that, on 20.4.2018 she approached defendants claiming partition appears vague and baseless statement. Under such circumstances, the contention mentioned in her cross- examination that, wife of 2nd defendant so also 3rd defendant assaulted herself and her family members on that day, when she visited defendants No.2 and 3 on 20.4.2018, is also nothing but a false statement. When plaintiff can conveniently filed suit for partition claiming the relief, it is probable that, if such an incident of assault occurred in the house of defendants No.2 and 3, she would not have kept quiet without even approaching the concerned police by lodging the complaint against defendants No.2 and 3 and their wives in this regard. This oral testimony of PW.1 establishes that, plaintiff has not approached defendants claiming partition and rather 27 OS.No.5058/2018 she has not approached them subsequent to the death of her mother i.e., three years prior to institution of this suit. Accordingly, I have answered this issue also in the negative.
16. ISSUE NO.7: This issue is considered on priority before considering issue No.4 for proper adjudication of the controversy. Admittedly, plaintiff has filed this suit only in respect of two items of property. Plaintiff admits in her cross-examination that, her father i.e., 1st defendant herein has executed Gift Deed dt:13.6.2007 in respect of property bearing No.262/2, khata No.2788 and she has not included said property in this case. PW.1 asserts that, it is a property acquired by her through gift. Whereas, in her cross-examination at Page No.6, she states that, at the time of execution of said Gift Deed in her favour, she has given Rs.3,00,000/- to her parents. It is not the case of plaintiff that, apart from suit schedule property there existed some more properties it is exclusively belongs to either 1 st defendant 28 OS.No.5058/2018 or mother of plaintiff and they have gifted the same to her. It is further case of plaintiff that, in turn she has paid Rs.3,00,000/- to her parents though 1st defendant who is none other than the father of plaintiff. 1 St defendant got examined himself as DW.1 no where in his cross- examination it is suggested that, in respect of certain properties Gift Deed has been executed by 1 st defendant and his wife in favour of plaintiff by accepting Rs.3,00,000/-. PW.1 admits that, she has sold gifted sital property for a sale consideration of Rs.10,00,000/- and she has purchased another property for sale consideration of Rs.10,00,00/- at Bidarahalli and said Bidarahalli property is not included in this suit. In Page.7 of her cross-examination she admits that, she has been given two more properties, one landed property in Sy.No.87/1 at Anandagal and another sital property bearing khata No.288 measuring 30 x 40 ft., at Anandagal and those two properties according to plaintiff has been given to her by her mother. Even those properties are not included in this suit. PW.1 admits that, she is staying in 29 OS.No.5058/2018 an own house. She has not at all included properties acquired by her through her parents much prior to institution of this suit. On the other hand, she has not even disclosed about said Gift Deed and properties acquired by her and sale of one such property for Rs.10,00,000/- and purchasing one more property out of sale consideration amount at Bidarahalli. These oral testimony of PW.1 establishes that, plaintiff has not included all the properties in this suit. Suit for partial partition is not at all maintainable. Accordingly, I have answered this issue in the negative.
17. ISSUE NO.5 : PW.1 admits in her cross-
examination that, 1st defendant has executed Gift Deed in her favour in respect of one of the properties i.e., Ex.P4. Though she asserts that, said property was self-acquired property of 1st defendant, she neither raised any averments with regard to said property in her plaint nor produced documents to establish that, same was self-acquired property of 1st defendant. On the other hand, 1 st defendant 30 OS.No.5058/2018 states that, same was purchased by 2 nd and 3rd defendant in his name. Since PW.1 admits execution of Gift Deed in her favour in her cross-examination in respect of the property bearing site No.17 and according to plaintiff, she has already sold the said property for Rs.10,00,000/-. Considering the same, I have answered this issue in the affirmative.
18. ISSUE NO.6: Defendants have produced one document styled as 'Hakku Badalavane Patra' i.e., Relinquishment of right by plaintiff, which is as per Ex.D5. 1St defendant categorically states that, plaintiff having acquired some of the properties from him executed Ex.D5 and there is no necessity for him to give share to the plaintiff for the 2nd time. The signature of plaintiff forth-coming in 1 st page of the plaint so also at the last page are similar to that of her signature forth-coming in her plaint-Ex.D1. Inspite of defendants producing this document, plaintiff not made any effort to get the document referred to hand-writing expert so as to ascertain its genuinity. Since this Court has got ample 31 OS.No.5058/2018 scope to compare the disputed signature of plaintiff and that of the admitted signature as per Section 73 of the Evidence Act, this Court compared the signature accordingly and both admitted and disputed signature of plaintiff appears similar and same. The conduct of plaintiff discussed in above issues establishes that, she has not approached the Court with clean hands and her evidence is not of trust-worthy. Further, it is not the case of plaintiff that, she is not in good terms with defendants. Under such circumstances, there is no scope for defendants to create such document as per Ex.D5. Considering the same, I have answered this issue No.6 in the affirmative.
19. ISSUE NO.8: As I have already stated, the version of PW.1 that, she is residing in her own house and she has already sold site given to her by her parents by way of gift and purchased house at Bidarahalli and also she is having site and landed property at Anandagal, establishes the claim of 1st defendant. Accordingly, I have answered issue No.8 in the affirmative.
32 OS.No.5058/2018
20. ISSUE NO.9: The oral testimony of DW.1 that, defendants No.2 and 3 have purchased the suit schedule properties and also the version of PW.1 in her cross- examination that, the earnings of 1 st defendant was not sufficient enough to meet the family expenses establishes that, 2nd and 3rd defendants being sons of 1 st defendant have made all their efforts and played their role while purchasing suit schedule properties. Since the property in question came to be purchased subsequent to the marriage of the plaintiff herein, it is probable that, she is not at all aware of th sale consideration amount and also who has paid the said sale consideration amount against Ex.P2 and P3. The contention taken by plaintiff that, she has paid Rs.3,00,000/- against Gift Deed executed by 1st defendant in respect of one of the property, which is not subject matter of this suit establishes that, she is making all efforts to make wrongful gain and thereby come up with this suit. DW.1 categorically states that, he has already given properties to plaintiff by way of Gift Deed. PW.1 admits execution of Gift Deed in her favour 33 OS.No.5058/2018 by 1st defendant and voluntarily states that, even her mother has executed Gift Deed in her favour in respect of certain properties, which is not the subject matter of this suit. Considering these oral testimony of plaintiff and 1 st defendant, I have answered issue No.9 also in the affirmative.
21. ISSUE NO.4: Admittedly plaintiff has not included some of the properties given to her in this suit so also property purchased by her at Bidarahalli by selling one of the property gifted to her by the 1 st defendant. PW.1 admits that, none of her brothers i.e., 2 nd and 3rd defendants have raised objections in respect of property given to her by way of Gift Deed through her father. She also failed to establish that, there is a cause of action for filing this suit. Admittedly, her mother died on 3.2.2015 and PW.1 states that, she has not visited the defendants since the date of death of her mother. This suit has been filed after lapse of 3 years from the date of death of her mother. In the absence of cause of action and also this 34 OS.No.5058/2018 suit being suit for partial partition, plaintiff is not at all entitled for any relief, much less relief of 1/4th share in respect of suit schedule properties. Accordingly, I have answered issue No.4 in the negative.
22. ISSUE NO.10: The learned counsel for plaintiff relied upon citation of Hon'ble Apex Court reported in (2011(9 Supreme Court Cases, 451, Marabasappa (dead) by Lrs. And others Vs. Ningappa (dead) by Lrs. and others and asserted that, property in the name of plaintiff's mother i.e., in respect of item No.1 of the suit schedule property is an absolute property of her mother and thereby plaintiff is having 1/4th share in respect of the suit schedule property under Section 15 of the Hindu Succession Act. Whereas, the plaintiff has not discharged her initial burden by producing sufficient oral and documentary evidence that no family arrangement has been made prior to the death of her mother in respect of properties in question and other family properties. Admittedly, plaintiff's father has executed Gift Deed in her 35 OS.No.5058/2018 favour in respect of one of the properties, which is not a part of this suit and plaintiff acquired two more properties through her mother. Though plaintiff asserts that, she has given Rs.3,00,000/- at the time of execution of Gift Deed in her favour, she has not produced any document to establish that, she possessed Rs.3,00,000/- as on the date of said Gift Deed in her favour. No where in the plaint she has disclosed about property acquired by her from her parents through Gift Deed and also that she has sold one such property for Rs.10,00,000/- and acquired one more property at Bidarahalli out of that sale consideration amount. Suit for partial partition is not at all maintainable. The circumstances discussed supra establishes that, plaintiff has not approached this Court with clean hands. Further, no man shall be vexed twice for the same cause of action. 1St defendant being father of plaintiff, who got examined himself before this Court categorically mentioned that, since he has already given share to the plaintiff by gifting some of his properties, question of apportioning or giving share to the plaintiff for 36 OS.No.5058/2018 the 2nd time does not arise. Hence, in pursuance of Gift Deed executed in favour of plaintiff, which is as per Ex.D4 by 1st defendant herein and also admission of plaintiff that, she has sold the very same property in favour of some third person as per Ex.D6 establishes that, plaintiff has not approached this Court with clean hand and that apart, no man shall be vexed twice for the same cause of action. 2Nd and 3rd defendants have not questioned the Gift Deed Ex.D4 executed by 1st defendant in favour of plaintiff. PW.1 admits that, defendants No.2 and 3 have not objected for execution of Gift Deed in her favour. 1 St defendant categorically states that, plaintiff having acquired the properties under Gift Deed and also some more properties from them executed Relinquishment Deed as per Ex.D5. Inspite of production of Relinquishment Deed before this Court, plaintiff has not made any effort to get the document referred for expert opinion. The signatures Ex.D5(a) and D5(d) available in Ex.D5 being the disputed signature of plaintiff, is just in accordance with her admitted signature available in 37 OS.No.5058/2018 Ex.D4, which is a registered Gift Deed executed by 1 st defendant in favour of plaintiff. The person who seeks equity must do equity. Plaintiff not at all included the properties in this suit acquired by her through her parents. Infact she has sold one of the property in favour of one Narayanaswamy as per Ex.D6 and according to her version recorded on oath, she purchased some other properties out of said amount. Plaintiff also admits that, she is residing in her own house. By not including her own properties acquired from the family of defendants, plaintiff managed to file this suit. Above all, from the cross-examination of PW.1 it is crystal clear that, there is no cause of action for the plaintiff to file this suit and the cause of action alleged in Para-7 and 9 of her plaint is nothing but an illusionary cause of action. These circumstances establishes that, plaintiff has not only approached this Court with unclean hand, but with unclean heart and brain. Such attitude required to be nipped at bud by imposing cost. Further, plaintiff's claim being after lapse of 3 years is also barred by law of 38 OS.No.5058/2018 limitation. Further, plaintiff has not produced any piece of paper to establish that, the properties in question are self-acquired property of her parents. There is no material to establish that, item No.1 and 2 of suit schedule properties are acquired by plaintiff's parents on their own or item No.1 of the suit schedule property was acquired by her mother as Streedhana. Under such circumstances, question of said property becoming absolute property of plaintiff's mother as per Section 15 of Hindu Succession Act as claimed by the plaintiff, appears vague and baseless. Considering the same and in view of my findings on above issues and also by observing the principles laid down by the Hon'ble Apex Court in the citation referred supra, I proceed to pass the following:
ORDER Suit filed by the plaintiff claiming 1/4 th share in respect of suit schedule item No.1 and 2 properties, is dismissed on cost of Rs.50,000/-.39 OS.No.5058/2018
On deposit of such cost by plaintiff, same shall be paid to 1st defendant, being father of plaintiff and also Senior Citizen.
Draw decree accordingly.
*** (Dictated to the J.W. computerized and print out taken by her, revised, corrected and then pronounced by me in open Court today the 5th day of February, 2020).
(M.LATHA KUMARI), VII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE Witnesses examined on behalf of Plaintiff:
PW.1 : Smt. Hemavathi Witness examined on behalf of Defendants:
DW.1 : Sri Shanthappa H.Bhamasagar Documents marked on behalf of Plaintiff:
Ex.P1 : Genealogical tree
Ex.P2 : Certified copy of sale deed
dt:17.1.2004
Ex.P3 : Certified copy of sale deed
dt:26.6.2013
40 OS.No.5058/2018
Documents marked on behalf of Defendants:
Ex.D1 : Plaint in OS.No.5058/2018 Ex.D1(a) to (e) : Signatures of plaintiff in Ex.D1 Ex.D2 : Partition deed dt:28.6.2017 Ex.D2(a) : Signature of defendant No.1.
Ex.D3 : Original sale deed dt:17.1.2004 pertaining to item No.1 property.
Ex.D4 : Copy of registered Gift Deed
dt:13.6.2007
Ex.D5 : Original Release Deed
dt:19.12.2007 executed by
: plaintiff
Ex.D5(a) to (d) : Signature of plaintiff Ex.D5(e) : Certificate for having paid the necessary stamp duty on the release deed Ex.D6 : Certified copy of sale deed dt:4.8.2008 executed by plaintiff in favour of Narayanaswamy in respect of gifted property gifted by DW.1 under Ex.D4 Ex.D7 : Original sale deed dt:26.6.2013 pertaining to item No.2 of the suit schedule property.
(M.LATHA KUMARI) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
41 OS.No.5058/2018 Judgment pronounced in the open Court (vide separate Judgment) Suit filed by the plaintiff claiming 1/4th share in respect of suit schedule item No.1 and 2 properties, is dismissed on cost of Rs.50,000/-.
On deposit of such cost by plaintiff, same shall be paid to 1st defendant, being father of plaintiff and also Senior Citizen.
Draw decree accordingly.
(M.LATHA KUMARI) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
42 OS.No.5058/2018