Bangalore District Court
Sri. B. V. Hanumegowda vs Sri. H. Chikka Venkataswamappa on 5 June, 2020
IN THE COURT OF THE LXII ADDL.CITY CIVIL
AND SESSIONS JUDGE (CCH-63) BENGALURU CITY
PRESENT:
Sri. R. ONKARAPPA, B.Sc.LL.B.,
LXII Add. City Civil and Sessions Judge,
Bangalore City.
Dated this the 5th day of June, 2020
ORIGINAL SUIT NO. 2838/2007
PLAINTIFF: Sri. B. V. Hanumegowda,
S/o Late H. Chikka venkataswamappa,
Aged about 54 years,
C/o Maruthi Medicals,
Bellary road, Devanahalli,
Bengaluru Rural District
[By Sri. B. N. Prakash, Advocate]
/v e r s u s/
DEFENDANTS: 1. Sri. H. Chikka Venkataswamappa,
S/o Doddahanumegowda,
Since dead by LRs his wife
LR-D1(a) Smt. Paravathamma
Since dead by other LRs D2 to D5
2. Smt. Rathnamma
W/o Ramakrishnappa
D/o H. Chikka Venkataswamappa,
Aged about 60 years,
R/at Dandiganahalli,
Devanahalli Taluk,
Bengaluru Rural District
3. Smt. Jayamma,
W/o Venkataramareddy
Since dead by LRs
D3(a) Sri. R. Venkatarama Reddy,
Aged about 58 years
(Husband of Late Jayamma)
2 O.S. No. 2838/2007
D3(b) Sri. Chanukya
S/o Late Jayamma,
Aged about 28 years,
D3(c) Kum. Prabhala,
D/o Late Jayamma,
Aged about 25 years,
Al are R/at Jayamma complex,
Opp. Sri. Balaji Temple,
Yelahanka New Town,
Bengaluru-560 064.
4. Smt. Anjanamma,
W/o Narayanaswamy,
D/o H. Chikka Venkataswamappa,
Aged about 48 years,
R/at Thimmappanahalli,
Hosakote Taluk,
Bengaluru Rural District
5. Smt. Savithramma,
W/o Late Vedamurthy,
D/o H. Chikka Venkataswamappa,
Aged about 48 years,
R/at Agalagurki,
Chikkaballapura Taluk,
Kolar District.
6. M. Narayanaswamy,
S/o Muniswamappa,
Major in age,
R/at Mudugurki village,
Vijayapura Hobli,
Devanahalli Taluk,
Bengaluru Rural District
7. M. Nagaraj,
S/o Muniswamappa,
Major in age,
R/at Mudugurki Village,
Vijayapura Hobli,
Devanahalli Taluk,
Bengaluru Rural District
3 O.S. No. 2838/2007
8. Sri. J. Harish,
S/o N. Jayaramaiah,
Aged about 26 years,
R/at Bijjawara Village and post,
Vijayapura Hobli,
Devanahlli Taluk,
Bengaluru Rural District
9. Sri. M. Lakshmana,
S/o Late Muninarayanappa,
Aged about 62 years,
Vijayapura Hobli,
Bengaluru District.
[By D1 - DCM advocate
D2, D3 (D3(a) to D3(c)) U.W. advocate
D6, 7 - K.N.J, advocate
D8 - B.S. advocate,
D9- N.N.M.R. advocate]
Date of institution of the : 04.04.2007
suit
Nature of the suit : Partition suit
Date of commencement of : 08.12.2014
recording of the evidence
Date on which the : 05.06.2020
Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
13 01 00
(R. ONKARAPPA)
LXII ACC & SJ: B'LORE.
JUDGMENT
The present suit has filed by the plaintiff for partition and declaration upon suit schedule properties. 4 O.S. No. 2838/2007
2. Suit Schedule properties are;
Item No. 1 : All the piece and parcel of vacant site bearing Municipal No. 780, Khata NO. 1860 of TMC Yelahanka, situated in A Sector of Yelahanka Extension, Bengaluru-64, Measuring East to West 18.30 meters and North to South 11+11.80/2 Meters and bounded on the East by : Road, West by : Site No.779, North by: Site No. 773 and South by: Road.
Item No. 2 : all the piece and parcel of House property bearing Khanesumari No. 167, situated at Bijjavara village, Devanahalli taluk, Bengaluru Rural District, Measuring East to West: 75 feet and North to South 44 feet and bounded on the East by: Property of Dodda Venkateswamappa, West by: Property of Gopalappa, North by Property of Gopalappa & Govindappa and South by: Property of Ramakrishnappa.
Item No.3 : All the piece and parcel of Agricultural Dry land measuring 0.04 Guntas out of Sy. No.5, situated at Bijjavara village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by:
Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 4 : All that piece and parcel of Agricultural Dry land measuring 0.08 guntas out of Sy. No. 6 5 O.S. No. 2838/2007 situated at Bijjavara village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bounded on the East by:
Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 5 : All that piece and parcel of Agricultural dry land measuring 0.31 guntas out of Sy. No. 47/1 situated at Bijjavara village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 6 : All that piece and parcel of Agricultural dry land measuring 2 Acres 26 guntas out of Sy. No. 58 situated at Narayanapura village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 7 : All that piece and parcel of Agricultural dry land measuring 2 Acres 9 guntas out of Sy. No. 72/4 situated at Bijjavara village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.6 O.S. No. 2838/2007
Item No. 8 : All that piece and parcel of Agricultural dry land measuring 0.24 guntas out of Sy. No. 73/3 situated at Bijjavara village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 9 : All that piece and parcel of Agricultural dry land measuring 0.24 guntas out of Sy. No. 73/1 situated at Bijjavara village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 10 : All that piece and parcel of Agricultural wet land measuring 0.10 guntas out of Sy. No. 179 situated at Bijjavara village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 11 : All that piece and parcel of Agricultural wet land measuring 0.02 guntas out of Sy. No. 180 situated at Thatamachanahalli, Amanikere, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on 7 O.S. No. 2838/2007 the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 12 : All that piece and parcel of Agricultural wet land measuring 1 acre, 25 guntas out of Sy.
No. 181 situated at Thatamachanahalli, Amanikere, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 13 : All that piece and parcel of Agricultural wet land measuring 0.07 guntas out of Sy. No. 182 situated at Thatamachanahalli, Amanikere, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 14 : All that piece and parcel of Agricultural wet land measuring 0.12 guntas out of Sy. No. 183 situated at Thatamachanahalli, Amanikere, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 15 : All that piece and parcel of Agricultural wet land measuring 0.04 guntas out of Sy. No. 8 O.S. No. 2838/2007 186 situated at Thatamachanahalli, Amanikere, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 16 : All that piece and parcel of Agricultural dry land measuring 1 acre, 28 guntas out of Sy. No. 21/1 situated at Mudugurki village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 17 : All that piece and parcel of Agricultural dry land measuring 1 acre, 34 guntas out of Sy. No. 21/1 situated at Mudugurki village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Others land, West by: Others land, North by Others land and South by: Others land.
Item No. 18 : All that piece and parcel of Agricultural wet land measuring 0.27 guntas out of Sy. No. 153/2 situated at Thatamachanahalli, Amanikere, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Land of Narayana Swamy, West by: Land of R. 9 O.S. No. 2838/2007 Narayanappa, North by: Land of S. Narayanappa and South by: Private land.
Item No. 19 : All that piece and parcel of Agricultural wet land measuring 0.04 guntas out of Sy. No. 147 situated at Thatamachanahalli, Amanikere, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Private Land, West by: Private Land, North by:
Land of Gopalappa and South by: land of Ramakrishnappa.
Item No. 20 : All that piece and parcel of Agricultural dry land measuring 1 acre 4 guntas out of Sy. No. 11 situated at Bijjavara Village, Vijayapur Hobli, Denahalli Taluk, Bengaluru Rural District, bounded on the East by: Land of A. Narayana Swamy, West by: Land of B. Ramachandra and BA. Venkatesh, North by: Land belongs to H. Ramakrishnappa and South by: Land belongs to Smt. Sharadamma.
Item No. 21 : All that piece and parcel of Agricultural dry land measuring 0.22 guntas out of Sy. No. 73/2 situated at Bijjavara village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Land of Ramakrishnappa, West by: Land of Srinivas, North by: Land of Jayaramaiah and South by: Lands of Sy. No. 73. 10 O.S. No. 2838/2007
Item No. 22 : All that piece and parcel of Agricultural dry land measuring 0.10 guntas out of Sy. No. 25 situated at Gonuru village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by:
Remaning lands in Sy. No. 58, West by: Land of Ramakrishnappa, North by: Land of Dobi Rangaiah and South by: Lands of Pillappa.
Item No. 23 : All that piece and parcel of Agricultural wet land measuring 0.35 guntas out of Sy. No. 187 situated at Thatamachanahalli, Amanikere, Vijayapura Hobli, Devanahalli Taluk, Bengaluru Rural District, bounded on the East by: Land of Channappa and Muniramaiah, West by: Land of H. Ramakrishnappa and B.C. Krishnappa, North by: Land of Ramakrishnappa and South by: Lands of Channappa and Govt. Channel.
3. Net shell of the the plaintiff's case is that, the plaintiff is the son of the 1st defendant Chikkavenkatashamappa. As the plaintiff seek for partition initially he made 1st defendant as a party to this suit.
Thereafter, the defendant Nos. 2 to 5 are being the daughters of the 1st defendant made them as a parties to this suit by impleding them. The defendant Nos. 6, 7 and 8 are the 11 O.S. No. 2838/2007 persons to purchase the suit item No. 16 and 17. that the plaintiff and the defendant No. 1 constitute a Hindu Undivided Joint family governed by Hindu Mithakshra Law. The defendant Nos. 2 to 5 are married daughters of the 1 st defendant. The defendant Nos. 6 and 7 have entered into illegal transaction with the defendant No. 1 in respect of the suit schedule items Nos. 16 and 17. The defendant Nos. 8 and 9 are the purchasers of item No. 18 and 19. The plaintiff and the 1st defendant have acquired all the properties mentioned in the schedule, from out of the nucleus of the joint family. That the defendant No.1 is a Kartha and Manager of the joint family. So far, there is no family partition between the plaintiff and the defendant No.1. The plaintiff has toiled his sweat and blood to acquire the joint family properties, which are in the name of the 1st defendant. As such the plaintiff being a coparcener of joint family and having been in joint possession and enjoyment of the schedule properties is entitled to half share in all the suit schedule properties, which are standing in the name of the 1st defendant. That the defendant No. 1 slowly covered a kind of ill will against to the plaintiff and instead of alloted the legitimate half share in the suit schedule properties, he is creating encumbrances over 12 O.S. No. 2838/2007 the suit schedule properties to the detrimental and prejudicial interest of the plaintiff without consent of the plaintiff in order to cause wrongful loss to the plaintiff. The first defendant does not himself derive any kind of independent right, title or interest to deal with any of the schedule properties on his own without any legal necessities. After perusal of the revenue records, documents to know that the 1 st defendant has already made colourable transaction in respect of suit schedule properties i.e., Item No. 16 and 17 in favour of the defendant No. 6 and 7 without any legal necessities and further the 1st defendant has also encumbered the suit schedule item No.1 in favour of the 3 rd defendant without any legal necessities with a malafide intention of deceiving the plaintiff from taking his legitimate share. In fact Item No.1 is more valuable than all other items and the defendant No.3 is a very affluent lady carrying on in the profession of Medicine and being a Doctor herself, she is creating dominance over the defendant No.1 feigning false love and affection in order to knock off the joint family properties. Accordingly, all such illegal and colourable transaction created by defendant No.1 in respect of the suit schedule properties are void in law and not binding on the plaintiff. The plaintiff, he being entitled for 13 O.S. No. 2838/2007 half share upon the suit schedule property he issued legal notice dated 21.02.2007 calling upon the defendant No.1 to make an equitable partition of all the joint family properties by metes and bounds and to deliver his half share. The notice has been acknowledged by the defendant No. 1 and instead of complying with the same, he has sent an untenable reply on 01.03.2007. It is further case of the plaintiff that during the life time of the 1st defendant, the 1st defendant being a Kartha of joint family constituted between the plaintiff and the 1st defendant. Both the plaintiff and the 1st defendant with their hard and labourisation and income eked out from the agricultural operations, the first defendant has been purchased in his name in respect of the suit item No.1. The plaintiff being only son in the family who was young and energetic during that relevant point of time, the defendant Nos. 2 to 5 being daughters of the 1st defendant and sisters of the plaintiff have already went out of their parental home and started living with their respective husbands in different places in their matrimonial abodes, the plaintiff alone carrying out agricultural operations on the family properties, as the 1st defendant being age old father, except he maintaining and managing the family affairs as Kartha, the 1 st 14 O.S. No. 2838/2007 defendant never look after any agricultural operations, thereby the plaintiff alone eked out agricultural income by growing commercial crops, Grapes garden and out of the income derived therein, that has been collected from the plaintiff by the 1st defendant. The 1st defendant has amalgamated the joint family income in purchasing the suit property item No. 1 in his name on 02.08.1989, hence the suit item No.1 property is the joint family property. As the suit item No. 1 property is not self acquired property of the 1 st defendant and subject matter of partition among the plaintiff and the 1st defendant. The 3rd defendant Dr. Jayamma being pet daughter of the 1st defendant, since the defendant Nos. 2, 4 and 5 are not well educated, the 3rd defendant did her BDS graduation. In order to give education to the 3 rd defendant, the plaintiff and the 1st defendant spent sums in lakhs to get her Graduation in BDS and also to her marriage. Since the father of the plaintiff is suffering from age ailments including the cancer and thereby the entire family of the plaintiff including all the defendant Nos. 2, 4 and 5 reposed confidence in the 3rd defendant. Being BDS doctor having a great connection with other Allopathic Doctors, the 3 rd defendant used to get father to Yelahanka to her residence 15 O.S. No. 2838/2007 often. The 3rd defendant as she being well educated she known that suit item No. 1 is valuable property located in prima place in Yelahanka New town and thereby in order to engulf the said property without intimation to any of the family member, the defendant No. 3 by playing a fraud on her aged father got created a fraudulent gift deed dated 11.08.2006 during life time of the 1st defendant. The nomenclature of the gift deed dated 11.08.2006 is very clear that, there is no recitals in respect of existence i.e., living wife and children of the 1st defendant and there is no recitals as to whether the donor has delivered the possession of the property to the hands of the donee nor has done accepted the gift deed is not forthcoming in the manner prescribed therein. As such gift deed dated 11.08.2006 is void ab-intio, not known to law and non-est in the eye of law. Since the suit item No. 1 is the joint family property, that has been purchased in the name of the 1st defendant out of the joint family labour, sweat nucleus and funds and therefore, the 1 st defendant has no independent right to execute gift deed in favour of the 3rd defendant without the knowledge of other members of the family including the plaintiff. Hence, the 3rd defendant did not derive any right, title, interest or 16 O.S. No. 2838/2007 possession over the suit item No. 1. The suit item No. 1 property is still vacant property as during life time of the 3 rd defendant anticipated that she did not get better title through the fraudulent gift deed dated 11.08.2006 and therefore, she has not made any adventure in effecting building thereon. During life time of the 1st defendant, the defendant No. 2, 3 and 5 unitedly colluding with each other in order to deceive and defeat the plaintiff, as plaintiff got married the daughter of the 4th defendant and thereby having family grudges that the plaintiff cannot get any inch of lands in family properties and thereby made the 1st defendant to execute a fraudulent Will dated 02.04.2007. the same Will came to be executed at the instance of the defendant No.2, 3 and 5 as the first defendant is being a toy in the hands of the 3rd defendant and the 1st defendant used to the dance to the tunes of the defendant No. 2, 3 and 5. By name and sake and in order to eyewash and make believe in further, just the name of the plaintiff and also the name of the 4 th defendant has been mentioned, as if made that Will in the nature of partition. The plaintiff do not have in respect of the said alleged Will until the Lrs of the 3rd defendant filed their written statement. After came to his knowledge the plaintiff after verifying the said 17 O.S. No. 2838/2007 documents and got obtained the Certified copy of Will dated 01.02.2018, and learnt that the defendant No.2, 3 and 5 by colluding with the defendant No.1 in order to deceive and defeat the plaintiff and the 4th defendant in the family properties. Hence, said fraudulent Will executed by the 1st defendant is contrary to law. As the properties so mentioned in the alleged Will dated 02.04.2007 are all ancestral properties has no independent right to execute or bequeath any of the ancestral properties in between his family members under his alleged Will and therefore, Will never came to effect even after death of the 1 st defendant. The 1st defendant have no any independent right over the lands in Sy. No. 153/2, the suit item No. 18 to create any interest in favour of the defendant No.8 under a sale deed dated 21.11.2006. hence the defendant No. 8 did not drive any title or possession in respect of suit item No. 18. In order to falsify the above said documents and to prove that those documents have been obtained by the defendants No. 2, 3 and 5 by having vested interest by playing fraud on the 1 st defendant by taking undue advantage of his old age and his ignorance and innocence. Thus, none of the parties who involved in the above said documents at annexure A to C and 18 O.S. No. 2838/2007 accordingly said documents are not binding on the plaintiff and therefore the defendant No. 2, 3 and 5 by colluding with the defendant No.1 it is necessary to seek appropriate reliefs to nullify the said documents before this court. On the above all contentions the cause of action for filing this suit arose on 21.02.2007 when the plaintiff demanded the defendant No.1 through the legal notice to affect the partition for which the defendant No.1 sent untenable reply on 01.03.2007, subsequently within the jurisdiction of this court. Suit is for the relief of partition and separate possession of the joint family properties and hence same is valued under section 35(2) of K.C.F. and S.V. Act and the court fee of Rs. 200/- is paid by the plaintiff.
4. After service of summons of this suit the defendant Nos. 1 to 9 appeared and filed their respective written statements. The defendant Nos. 1 to3 and 5 in their written statement contended common statement,same which are extracted herein to avoid repetition. Relationship between the plaintiff and the defendant Nos. 2 to 5 is not much disputed. Existence of suit item Nos. 1 to 23 is not much disputed. The defendant Nos. 1 to 3 and 5 contended that the suit of the plaintiff is not maintainable either in law or on 19 O.S. No. 2838/2007 facts. Suit of the plaintiff is not valued properly to avoid payment of court fee. The other contentions of the defendants through their written statement are recorded separately as follows;
5. The 1st defendant in his written statement contended that, the plaintiff has filed the suit seeking a relief of partition and separate possession of half share in various properties listed in the Schedule to the plaint and for a relief that the transactions relating to Schedule Item No. 16 and 17 to be held void. The present suit is wholly misconceived and not maintainable. The suit requires to be dismissed and the plaint rejected with exemplary costs. The entire suit which has been filed for partition is not maintainable in that the relief of 50% share in the joint family properties (assuming that the properties are joint family in nature) is no longer permissible. In terms of the recent amendment to the Hindu Succession Act, daughters are entitled to an equal share in all joint family properties. As a result the claim that 50% share should be given to the son is not tenable on its own shoing and the suit deserves to be rejected on that sole ground itself. The relief that alienations made in respect of item Nos. 1, 16 and 17 are void are also without any basis and without 20 O.S. No. 2838/2007 a relief of cancellation, the plaintiff cannot set aside the said transactions. The plaintiff is also required to pay court fee for cancellation of such instruments, which not having been done, the suit requires to be rejected. The defendant No. 1 in addition to being an agriculturist also ran a finance and money lending business and it was through that income that he acquired the Schedule Item No.1. The plaintiff cannot make any claim in respect of Item No.1, as the same is self acquired property of the defendant No.1 which he has gifted to his daughter defendant No.3. The schedule Item No. 2 and 5 are the same and not two different properties as stated by the plaintiff. It is an attempt made by the plaintiff to mislead this court. The schedule item No.3 and Item No.6 do not belong to the defendant No.1. The properties listed at Item No.3 and 6 cannot be made subject matter of the present suit as they are properties which are owned by some other individuals and the plaintiff's claim is without any basis. That the various properties listed in the Schedule are not joint family properties and are self acquired properties of the defendant No.1 and the defendant No.1 has the absolute right to deal with the said properties in any manner that he deems fit. Further contention of the 1st defendant is that the 21 O.S. No. 2838/2007 disputed schedule Item No.16 and 17 were sold to the defendant Nos. 6 and 7, twenty years ago and the plaintiff was a major at that time. There is no legal basis to set aside the alienation and the claim made deserves merely to be mentioned to be rejected. The averments that the plaintiff has toiled his blood and sweat to acquire the joint family properties is not true. It is admitted that all the properties are in the name of the defendant No.1; therefore it is evident that only the defendant No.1 has acquired the properties with great struggle and effort. The plaintiff has never taken any effort to contribute to the family. It was the defendant No. 1 who sold some properties and provided the plaintiff with sufficient means to set up a medical store and also provided him with large sums of money the upkeep of his family and himself. The defendant No. 1 has developed ill will against the plaintiff and not alloted plaintiff's legitimate share in the schedule properties is completely denied. It is the plaintiff who has developed voracity to acquire the properties which belong to the defendant No. 1. the plaintiff is not entitled to any share and the defendant No. 1 is entitled to deal with the schedule properties independently and without reference to any person. The plaintiff has defamed the defendant No.3 by 22 O.S. No. 2838/2007 alleging that she is feigning false love towards her father (defendant No.1). This clearly proves the voracity of the plaintiff to acquire the schedule properties by any means. Schedule item No.1 being the self acquired property of the defendant No.1, the plaintiff has no rights to question the transaction. There is no cause of action to file the present suit. The cause of action pleaded is completely incorrect and requires to be rejected. That the schedule to the plaint are completely incorrect. That the plaintiff is not entitled to a share in any of the schedule properties and the plaint requires to be rejected. Notwithstanding the above and in the event this Court were to come to a conclusion that any of the properties mentioned in the plaint are joint family properties, it is submitted that the said properties would have to be divided in terms of the Act No. 39 of 2005 in terms of which the Hindu Succession Act has been amended giving all daughters an equal right in all joint family/co-parcenary properties. If this Court were to come to a conclusion that the properties/ any portion of the properties are joint family properties, all the defendants may be given a share in the properties in terms of the Hindu Succession Act. With these 23 O.S. No. 2838/2007 contentions the defendant No.1 prayed for dismissal of the suit.
6. The defendant Nos. 6 and 7 in their written statement contended that, the above suit is filed against the defendant No. 6 and 7 with respect to item No. 16 and 17, with dishonest intention to get some illegal monetary benefits from these defendants. The relationship stated by the plaintiff is not within the knowledge of these defendants, hence the plaintiff has to put strict proof of the same, and these defendants are concerned only to item No. 16 and 17 of the suit schedule property. The plaintiff stated wrong Sy. No. and wrong boundaries and measurements to mislead this Court. That except Sy. No. 21/1 and 21/2 of measuring to an extent of 1.26 and 3.27 of Mudugurki village, Davanahalli Taluk, these defendants are nowhere concern in the present suit. Hence the suit has to be dismissed against the defendants No. 6 and 7. And the defendant No. 1 had sold the land bearing Sy. No. 22/1 and 22/2 to Munishamappa i.e., father of these defendants for legal necessity. Hence the suit is not maintainable. The defendant Nos. 6 and 7 further contended that, father of the defendants NO. 6 and 7 Late. Munishamappa was purchased the said land bearing Sy. No. 24 O.S. No. 2838/2007 22/1 and 22/2 of Mudugurki village, Devanahalli Taluk, from the defendant No.1 on 03.09.1988 by paying sale consideration amount and the same was registered in Sub- registrar office at Devanahalli. That the Chikkavenkatashamappa sold the said land due to solve family necessity and the land was not fit for agricultural purpose, to purchase cultivable land, the defendant No.1 had sold the land in favour of Munishamappa, who is the father of defendant Nos. 6 and 7. The same reflected in the sale deed executed by the defendant No.1 in favour of Munishamappa. The said land was Vendors self acquired property. Hence the plaintiff nor the defendants have rights over the suit item No. 16 and 17. After purchasing the land by the father of these defendants for develop and fertile of land and by borrowing loan same was improved. The Khata was also entered in the name of Munishamappa and after death of Munishamappa the defendant Nos.6 and 7 were cultivate the same. This is only source of income to these defendants to lead life. Now Khata also stand in the name of these defendants. That the land was purchased by the father of the defendant No.6 and 7 about 20 years ago, after lapse of time the plaintiff filed the present suit is not maintainable and these defendants were in 25 O.S. No. 2838/2007 peaceful possession and enjoyment of the land more than statutory period. Hence the suit is not maintainable against these defendants and prays for dismissal of the suit against to the defendant Nos. 6 and 7 upon suit schedule item Nos. 16 and 17.
7. After service of suit summons, the defendant No.8 appeared before the court through his counsel and filed written statement, the defendant No.8 contended that, the present suit is filed by the plaintiff with an oblique motive with out there being any valid right, title and interest in favour of the plaintiff and the present suit has filed just to harass this defendant. The suit is speculative in nature and is filed with oblique motive for collateral purpose for wrongful gain. The allegation made in the para No. 2 to 5 are not within the knowledge of this defendant and are denied by this defendant and the plaintiff is put to strict proof of the same. The 8th defendant has acquired absolute right, title and interest over the suit item No.18 under a registered deed of sale executed in his favour by the 1 st defendant in the office of the Sub-registrar, Devanahalli registered in Book-I as Doc. No. DNH-1-07312-2006-07 stored in C.D. No. DNHD117 dated 21.11.2006. The defendant No. 8 ever since the said 26 O.S. No. 2838/2007 conveyance has been exercise absolute right of ownership over Item No. 18 of the suit schedule property and this defendant is in actual physical possession and enjoyment of the item No. 18 of the suit schedule property. The plaintiff has not sought for any relief against this defendant in respect of item No. 18 of the suit schedule property in spite of there being a proper conveyance deed, hence no relief can be grant in favour of the plaintiff in respect of Item No. 18 of the suit schedule property. That the item No. 18 of the suit schedule property is not the joint family property as contended by the plaintiff and even otherwise the said property is not open for partition as now contended by the plaintiff. The sale in favour of this defendant is legal necessities and benefit of the family. The said fact has been clearly mentioned in the sale deed executed in favour of this defendant by the defendant No.1. This defendant is a bonafide purchaser for valuable consideration and therefore his rights are protected. Item No.18 of the suit schedule property is not the joint family property. The sale is very much binding on all the parties hence plaintiff is not entitled for any share in item No. 18 of the suit schedule property. The 1st defendant is the father of the plaintiff and also is the 27 O.S. No. 2838/2007 Kartha of the Hindu Undivided Family constituted by them. The 1st defendant sold the item No.18 of the plaint schedule to this defendant No.8 for valuable consideration because he was in urgent need of funds for maintaining the family and for the improvement of the other properties belonging to him. These reasons constitute legal necessity of this family and also beneficial to the family. The plaintiff was aware of all these facts and he was aware of the sale transaction right from the stage of negotiations till the completion of the sale. The suit is collusive suit and the plaintiff is set up by the first defendant to file this suit with the sole intent and object of making unjust and wrongful gain and to cause wrong full loss to this defendant. If for any reasons this Court is pleased to pass Judgment granting partition, this defendant prays that item No.18 of the suit schedule property be alloted to the share of the first defendant in order to avoid multiplicity of proceedings. That the first defendant as per the recitals in the sale deed has under taken that in the event of any objections or disputes arise in respect of item No.18 of the plaint schedule that is the property sold by him, the first defendant himself at his own cost settle all such disputes in favour of this defendant and also indemnify this defendant. Even 28 O.S. No. 2838/2007 according to law, the first defendant is bound to indemnify this defendant. That the plaintiff apart from filing the above suit had also filed his objections before the Tahasildar to transfer of Phani/Katha in the name of the defendant No.8, but however the Tahsildar in RRT No. 76/2006-07 based on the arguments submitted by the defendant No.1 and seeing the material on record has dismissed the application filed by the plaintiff by his order dated 05.11.2007. Hence the defendant No.8 prays for dismissal of the suit against the defendant No. 8 upon suit schedule item No.18.
8. The defendant Nos. 3 and 5 in their written statement contended that the defendant Nos. 2 to 5 are not aware of any illegal transactions in respect of any of the suit schedule properties entered into between the defendant No.1 and the defendant Nos. 6 and 7 much less item Nos. 16 and 17 of the suit schedule property at any point of time as falsely alleged in the said para. The plaintiff is put to strict proof of the same. The averments made in para No. 3 to the effect that the plaintiff and the defendant No.1 have acquired the suit schedule properties and the same are the joint family properties are totally false. Undoubtedly the defendant No.1 is the father of the plaintiff and the defendant Nos. 2 to 5 also 29 O.S. No. 2838/2007 karta of the family. The averments made in para 4 of the plaint to the effect that the transaction in respect of item No. 16 and 17 of the suit schedule property in favour of the defendant Nos. 6 and 7 by the defendant No.1 are not within the knowledge of the above mentioned defendants. The averments pertaining to the defendant No. 1 alienating the item No.1 of the defendant by virtue of a registered Gift Deed dated 11.08.2006 bearing Reg. No. 11111/06-07, CD No. YND 218 registered in the office of the Sub-registrar, Yelahanka out of natural love and affection is true. The said transaction is a perfectly valid and legal transaction in view of the fact the item No. 1 of the suit schedule property is the self acquired property of the defendant No. 1 who had been allotted the same from KHB and he purchased the same out of his self earnings vied registered sale deed dated 02.08.89 bearing registration No. 420/89-90, Book No. 1 Volume-9, page 80-86 to 242 registered in the office of the Sub- registrar, Yelahanka. No doubt the defendant No.3 is a doctor and is having a reasonably good practice due to her sheer grit and determination. It is however denied that the defendant No.3 feigns false love and affection for her father namely the defendant No.1 or dominating her father in order 30 O.S. No. 2838/2007 to knock off joint family properties as falsely alleged in the said para. The defendant in the said para. The defendant No. 1 is an old man aged about 83 years and his wife is aged 79 years. The old couple had been residing in the item No. 2 of the suit schedule property all along. The plaintiff separated from the family after his marriage about 10 years ago and his residing separately along with his wife and child at Devanahalli. All though the plaintiff is the only son of his parents he has failed to take up the responsibility of looking after the needs of his parents. On the other hand at the slightest opportunity he would harass them in all ways by assaulting them, deliberately not providing food to them and ignoring all their medical and financial requirements. The defendant Nos. 2, 4 and 5 are married and they are all residing in their respective houses. It is the defendant No. 3 who has taken upon herself to take care of her old and ailing parents. She used to visit them often and provide provisions, medicines, give them money for their day to day requirements. However due to the infirmities of their old age and the condition of the defendant No.1 became serious as he was suffering from cancer of prostrate glands and he had to be hospitalized and operated upon, the defendant No.3 31 O.S. No. 2838/2007 brought both her parents to her house a few months ago and tendered them all the medical treatment and care and concern. As on date also it is the defendant No.3 who is looking after them as a dutiful and loving daughter. The plaintiff who is prone to use all illegal methods in order to gain his ways brake open the lock of item No. 2 the residential house of the defendant No.2 and barged inside the house. The defendant No. 1 who was in a state of shock had to lodge a criminal complaint against the plaintiff in the Jurisdictional police station on 17.06.2007 and take necessary steps for regaining entry in his own house. Under these circumstances the defendant No. 1 has gifted his self acquired property namely Item No.1 of the suit schedule property in the name of his daughter i.e., the defendant No.
3. The plaintiff has no manner of right title or interest over the said property. The defendant Nos. 1 and 3 have sent a suitable reply dated 01.03.2007 to the legal notice dated 21.02.2007 sent by the plaintiff. There is no cause of action for the suit. Hence the suit is liable to be dismissed. The plaintiff has misrepresented and misconstrued the true facts to suit his malicious and greedy ends while filing the above suit. The true facts are as follows;
32 O.S. No. 2838/2007
The item No. 1 of the suit schedule property is the self acquired property of the defendant No. 1 which has been gifted in favour of his daughter defendant No. 3 vide registered Gift Deed dated 11.08.2006. Item Nos. 2 and 5 are the only ancestral properties of the plaintiff and the defendants 1 to 5. All other properties detailed in the suit schedule are the joint family properties of the defendant Nos. 1 and his brothers which have come to his share by virtue of family partition. Out of all the suit schedule properties the defendant No. 3 is the absolute owner of Item No. 1 and no one else has any manner of right, title or interest over the same. As such the defendant Nos. 2 to 5 are entitled to 1/6th share each out of all suit schedule properties except the Item No. 1 which belongs to the defendant No. 3.
9. During the pendency of proceedings the 1st defendant and 3rd defendant died. The Lrs of the defendant No. 3 came on record and filed their additional written statement. The Lrs of the defendant No.3 in their written statement contended that regarding para 4(a) of the plaint that during the life time of the father who being a kartha of the joint family is denied as false. Further allegation that the plaintiff and the 1st defendant out of joint family nucleus were 33 O.S. No. 2838/2007 agricultural operation the defendant No. 1 was purchased item No. 1 of the schedule property is totally denied as false. That the item No.1 is the self acquired property of the defendant No. 1. the plaintiff have no right or interest over the property in question. The defendant No. 1 has filed written statement and he have categorically stated that the item No. 1 of the schedule property is the self acquired property and the said property have been gifted in favour of Smt. Jayamma who is the daughter of the defendant No. 1. The said Smt. Jayamma died intestate leaving behind these defendants. These defendants are absolute owners in possession of the property. That the plaintiff alone carrying out agricultural operation on the family properties is totally denied as false. The further allegation that the defendant No. 1 being age old father never taken care of agricultural operations Is totally denied as false. That the plaintiff has not taken care of the defendant No. 1 or not cultivated the land at any point of time. That out of commercial crops the plaintiff earned huge money and same has been given to the 1st defendant is totally denied as false and the plaintiff is strict proof of the same. That the 1 st defendant have purchased suit property item No. 1 from the joint family 34 O.S. No. 2838/2007 properties income is totally denied as false. That the plaintiff has contributed entire sale consideration paid by the 1 st defendant in respect of item No. 1 in the suit schedule property is denied as false and the plaintiff is strict proof of the same. That only the name of the 1st defendant has been shown on the sale deed and the plaintiff has paid the entire sale consideration is totally denied as false. That the item No. 1 of the schedule property is joint family properties and it is liable to be effected for partition is totally denied as false. The plaintiff is put strict proof of the same. Regarding para 4(b) of the plaint the deceased 3rd defendant Smt. Jayamma was very pet daughter of the 1 st defendant is true. That the said Smt. Jayamma was taken care of her father. That the plaintiff and his father spent lakhs of rupees for graduation to said Smt. Jayamma is denied as false. That the plaintiff and the 1st defendant has spent huge money for the marriage of said Jayamma is denied as false. That the said Smt. Jayamma was played a fraud on the 1st defendant and obtained fraudulent gift deed from her father on 11.08.2006 is totally denied as false. That the 1st defendant was executed the gift deed without any force executed by love and affection towards Smt. Jayamma on 11.08.2006. on that day the said 35 O.S. No. 2838/2007 Smt. Jayamma was put in possession and enjoyment of the property and all the revenue records have been mutated in her name. After her death these defendants are successors and absolute owners and they are in possession and enjoyment of the property. That the alleged gift deed is voidable issue not known to law and non-est in the eye of law is denied as false. That the said gift deed registered in the Office of the Sub-Registrar and donor and done were very much present. Hence, the gift deed is valid in the eye of law. The plaintiff has no right to question after lapse of 12 years. That the 1st defendant has no independent right to execute the gift deed in favour of Smt. Jayamma without knowledge of either family towards is totally denied as false. That the 1 st defendant was executed a gift deed as absolute owner and it is self acquired property of him and he has valid right to execute a gift deed in favour of the 3 rd defendant. That the 3rd defendant did not get proper title through the fraudulent gift deed is denied as false. That the property is vacant and the defendant has not made any adventure in affecting building thereon in view of fraudulent gift deed is denied as false. That the item No. 1 is in possession and enjoyment of the property of these defendants. That the 3rd defendant was obtaining 36 O.S. No. 2838/2007 fraudulent gift deed from the 1st defendant by paying fraud is denied as false. That the father of the defendant No.1 who do not have much worldly knowledge on the date of execution of the gift deed is totally denied as false. That the gift deed executed by the 1st defendant in favour of the 3rd defendant with love and affection and same has been registered in the office of the Sub-Registrar hence the gift deed is mandate in the eye of law. Regarding para NO. 4(c) of the plaint that during the life time of the 1st defendant and defendants No. 2, 3 and 5 colluded with each other to defeat the right of the plaintiff is totally denied as false. That the 1st defendant executed fraudulent Will on 02.04.2007 is denied as false. That the 1st defendant is the toy in the hands of the 3 rd defendant is false. That the plaintiff unnecessarily entering into the family properties and after lapse of 12 years and there is no material forthcoming by the plaintiff, the conduct of the plaintiff clearly establishes that he has no love and affection towards his parents and there is no love and affection towards his sisters. That the 1 st defendant has executed a Will as his own with love and affection, the said Will is valid in the eye of law and the same is binding on the parties. That the plaintiff came to know on 13.08.2015 about 37 O.S. No. 2838/2007 the Will is totally denied as false. That the defendant No. 1 was executed the Will in favour of other defendants. That the defendant Nos. 1, 2, 3 and 5 have created documents as on 01.02.2018 is totally denied as false. That the said Will executed by the 1st defendant is not binding on the plaint is denied as false. That the defendant has no independent right to bequeath any properties on the alleged Will is false. That the 1st defendant is the absolute owner of the property and those properties are self-acquired properties and the plaintiff cannot question the alleged Will at this stage. That the 1 st defendant has no right to execute Will is denied as false. That the said Will is not binding on the plaintiff is totally denied as false. Regarding para 4(d) of the plaint, that the 1 st defendant has no independent right over the land in Sy. No. 153/2 the said item No. 18 is specifically denied as false. That the 1 st defendant has no right to create interest in favour of the defendant No.8 under the sale deed dated 20.11.2006 is totally false. That the defendant No.8 is a bona fide purchaser and he has right title and interest over the same. That the 1 st defendant was sold the property in favour of the defendant No. 8 as absolute owner, the plaintiff has no right to question after lapse of 13 years of the sale deed. That the defendant 38 O.S. No. 2838/2007 No.8 did not derive any title of item No.18 is totally denied as false. That sale deed dated 21.11.2006 is not binding on the plaintiff is denied false. That the sale deed was registered in the office of Sub-Registrar and thereafter revenue records have been mutated in the name of the defendant No.8 and the defendant No.8 is the absolute owner and is in possession of the property. Once the documents have been registered those documents is binding all the parties. That the plaintiff has stated cock and bull story without any materials before this Court. Regarding para 4(e) of the plaint that the defendants No. 2, 3 and 5 playing fraud on the 1 st defendant by creating documents is totally denied as false. That taking undue advantage and innocence of the defendants No. 2, 3 and 5 have misled and played fraud is totally denied as false. That the Annexure-A to C did not get any right, interest in fact binding on the plaint is totally denied as false. That the documents obtained by the defendants Nos. 1, 2, 3 and 5 are nullity and void have been issued and they did not derive any right, title or interest is totally denied as false, the plaintiff put strict proof of the same. That the plaintiff have filed a false and frivolous suit just to harass these defendants. That the 1st defendant was himself waited in the Court hall and has 39 O.S. No. 2838/2007 filed written statement denying the existence of the properties and categorically stated that the properties are self acquired properties of the defendant No.1. Knowing all these facts the plaintiff has filed this suit and he has not approached the court with clean hands just to drag the matter they brought new averments. The plaintiff is not entitled for any relief from the hands of this Court, there is no properties are here for partition to grant share in favour of the plaintiff. Hence, the Lrs of the defendant No.3 seeks dismissal of the suit against to the plaintiff upon suit item No.1 and seeks partition upon suit item Nos. 5, 8 and 9.
10. On perusal of order sheet it is evident that compliance of section 89 CPC has not been complied. Inspite of repeat and repeated opportunity given to the parties , till argue the matter on merit by this court for compliance of Section 89 of CPC. But no parties to this suit have come forward for compliance. Hence same is taken as complied, as the parties to the suit are not ready to observe the elements of compromise.
11. Order sheet dated 07.07.2012 speaks that suit was came to be dismissed against to the defendant No. 9, in view of the memo filed by the plaintiff.
40 O.S. No. 2838/2007
12. Based on the pleadings, predecessor of this office framed a as many as five issues and two additional issues, they are;
ISSUES
1. Whether the plaintiff proves that the suit schedule property are the joint family properties?
2. Whether the defendant No.8 proves that the 1st defendant has sold item No. 18 of the suit schedule property for his family legal necessities and benefit of the family?
3. Whether the defendant No.8 proves that he is the bonafide purchaser for valuable consideration for item No. 18 of the suit schedule property?
4. Whether the plaintiff is entitled for the relief sought for?
5. What decree or order?
ADDITIONAL ISSUES
1. Whether the Lrs of the 3rd defendant prove that their father late Chikkavenkatashamappa had executed the Will dated 02.04.2007 bequeathing the item No.7, 8 and 9 of suit schedule property in favour of late Jayamma and Smt. Savithramma- 5 th defendant as contended in their written statement?
2. Whether the Lrs., of the defendant No.3 prove that they are entitled for share in item No.1 and half share in item No. 7, 8 and 9 of the suit schedule property as prayed?
41 O.S. No. 2838/2007
13. Since the defendant Nos. 6 and 7 claimed absolute ownership over the suit item Nos. 16 and 17 by virtue of registered sale deed dated 3-09-1988 and the defendant No. 3 claimed absolute ownership upon the suit item No. 1 by virtue of Gift deed dated11-08-2006, as such the following issues are framed as additional issues. Additional Issue Nos. 1 and 2 are seems to be look like same, hence additional issue No. 2 is here by ordered to be strike out .
ADDITIONAL ISSUES
3. Whether the defendant No.6 and 7 proves the title over suit item No. 16 and 17 and defendant No. 6 and 7 are the bona fide purchaser of the suit item no 16 and 17 ?
4. Whether the 3rd defendant proves that she is the absolute owner of suit item No.1 of the schedule properties by virtue of registered gift deed dated 11.08.2006?
14. Heard arguments of learned counsel for the plaintiff and the defendants, Perused the material on record.
15. My finding on the above points are as under:
Issues No.1 and 4 :In the partly affirmative.
Issue No. 2 :In the affirmative.
Issue No. 3 :In the Affirmative.
Additional Issue No. 1 : In the Negative
Additional Issue No. 2 : Strike out.
Additional Issue No. 3 : In the Affirmative
42 O.S. No. 2838/2007
Additional Issue No. 4 : In the Affirmative
Issue No. 5 : As per final order; for
the following:
REASONS
16. Issue Nos. 1 and 4: Since these issues are inter connected with each other, they are taken together for common discussion to avoid the repetition of the facts. In order to prove the case of the plaintiff, the plaintiff examined himself as PW1 and got marked Ex.P1 to Ex.P20. Since the plaintiff seeks for amendment of the plaint, as per order dated 19.11.2008 permitted the plaintiff to amend the plaint.
In view of amendment, the plaintiff again examined himself as PW1 and got marked Ex.P21 to Ex.P23. In lieu of examination in chief the plaintiff filed an affidavit and reiterated all the averments made in the plaint.
17. In order to prove the defence of the defendant No.3 and 5, the Lrs of the defendant No.3 by name R. Venkatarama Reddy examined himself as DW1 and got marked Ex.D2 to Ex.D12.in lieu of examination in chief he filed his affidavit. where in DW1 re itrated all the averments made in his written statement.
18. On behalf of the defendant Nos.6 and 7, the defendant No.6 examined himself as DW2 and got marked 43 O.S. No. 2838/2007 Ex.D13 to Ex.D17.in lieu of examination in chief he filed his affidavit,where in he reiterate all the averments averred in the written statement
19. The defendant No.8 examined himself as DW3 and he has not got marked any documents in his favour. In lieu of examination in chief he filed his affidavit, wherein he reiterate all the averments made in his written statement.
20. Since the records involves the multiple fact in issue primarily I took the issue No. 1 and 4, for common discussion. According to the plaintiff suit schedule properties are all joint family properties of both the plaintiff, the defendant No.1, 1(a), the defendant No.2, defendant Nos. 3(a) to 3(c) and defendant No.4 and 5.
21. According to the plaintiff one Doddahanumegowda who was prepositous of the family. Said Doddahanumegowda gave birth to one Chikkavenkataswamappa. Chikkavenkataswamappa had got married one Parvatamma. Said late Chikkavenkataswamappa and late Parvatamma blessed the plaintiff B. V. Hanumegowda, defendant No. 2 Ratnamma, defendant No.3 Jayamma, defendant No.4 Anjanamma and 5th defendant Savithramma. As such the 44 O.S. No. 2838/2007 plaintiff along with the defendant No. 1 to 5 constituted a Hindu Undivided Joint family.
22. Basically the plaintiff filed this suit against to the 1st defendant seeks half share in all suit schedule properties. 1St defendant Chikkavenkatashamappa was died. After his death his wife by name Parvatamma came on record as his Lrs as defendant No.1(a). The defendant No.3 by name Jayamma was died during the pendency of the suit, as such her Lrs defendant No.3(a) to defendant No.3(c) come on record.
23. It is the case of the plaintiff that the plaintiff and defendant No.1 have acquired all the properties mentioned in the schedule hereunder, from the income out of the nucleus of the joint family. The defendant No.1 is the Kartha and Manager of the joint family. So far, there is no family partition between the plaintiff and the defendant No.1. The plaintiff has sweat and blood to acquire the joint family properties, which are in the name of the 1 st defendant. As such, the plaintiff being a co-parcner and member of the joint family and having been in joint possession and enjoyment of the schedule properties is entitled to half share in all the suit schedule properties, which are standing in the name of the 45 O.S. No. 2838/2007 defendant No.1. In support to his case, the plaintiff got marked Ex.P1 Geno-logical Tree, Ex.P2 assessment Register pertains to Item No.1 property, Ex.P3 is also a Assessment register pertains to suit item No.2, Ex.P4 is the RTC Extract pertains to suit item No.3, Ex.P5 is the RTC extract pertains to Item No.4, Ex.P6 is the RTC extract pertains to Item No.5, Ex.P7 is the RTC extract pertains to suit item No. 6. Ex.P8 is the RTC extract pertains to suit item No. 7. Ex.P9 is the RTC extract pertains to suit item No. 8. Ex.P10 is the RTC extract pertains to suit item No. 9. Ex.P11 is the RTC extract pertains to suit item No. 10. Ex.P12 is the RTC extract pertains to suit item No. 11. Ex.P13 RTC extract pertains to suit item No. 12. Ex.P14 RTC extract pertains to suit item No. 13. Ex.P15 RTC extract pertains to suit item No.14. Ex.P16 is the RTC extract pertains to suit item No. 15. Ex.P17 and Ex.P 18 are the RTC extract pertains to suit item Nos. 16 and 17. So far existence of the properties is not much disputed and Ex.P2 to Ex.P18 also obvious very existence of suit item No.1 to 18 but for suit item Nos. 19 to 23 no document have been forth come on record. Now the question in issue is, whether the suit item No.1 to 18 are the joint family properties of the plaintiff and defendant No. 1 to 5 and also the question in issue is that 46 O.S. No. 2838/2007 whether the suit item No.1 to 18 are continue the nature of joint family status.
24. Perused the Ex.P17 and Ex.P18. Ex.P17 and Ex.P18 are the RTC extract pertains to Land bearing Sy. No. 21/1 to an extent of 1 acre 26 guntas and land bearing Sy. No. 22/1 to an extent of 1 acre 34 guntas situated at Mudgurki village, Vijaypur Hobli, Devanahalli taluk. According to the defendant Nos. 6 and 7 both the Sy. Nos are bears the common boundary. Perused the Ex.P17 and Ex.P18. Ex.P17 and Ex.P18 speaks that the land bearing Sy. No. 21/1 and 22/1 stands in the name of one M. Narayanswamy S/o Munishamappa and M. Nagaraju S/o Munishamappa who was none other than the defendant No.6 and 7.
25. The claim of the plaintiff is that suit item No.16 and 17 are the joint family properties of the plaintiff and the defendant Nos. 1 to 5. Against to this claim the defendant No.6 and 7 categorically averred that the land was purchased by these defendant's father about 20 years ago, after lapse of time the plaintiff filed the present suit is not maintainable and these defendants were in peaceful possession and enjoyment and more than statutory period. Hence the suit is not maintainable and the defendant No.1 sold the land for family 47 O.S. No. 2838/2007 necessity and legal necessity. Hence, the suit is not maintainable against these defendants. In support to their claim the defendant No. 6 and 7 also relied on Ex.D13 to Ex.P16 RTC extract pertains to suit item No.16 and 17. The defendant Nos. 6 and 7 also relied on Ex.D17 Certified copy of sale deed dated 3.9.1988 which was got executed by the father of the plaintiff in favour of the father of the defendant Nos. 6 and 7 Muniswamappa. Ex.P17 and Ex.P18 as well as Ex.D13 to Ex.D16 and Ex.D17 sale deed are evident that the suit item No. 16 and 17 stands in the name of the defendant Nos. 6 and 7. Admittedly the defendant Nos. 6 and 7 are not a joint family members of the plaintiff and the defendant Nos. 1 to 5.Hence it necessary me perused the contention of the 1 st defendant .The 1st defendant in his written statement he contended that the plaintiff and the 1 st defendant constitute a Hindu Undivided family governed by Hindu Mitakshara Law. It is denied that the defendant Nos. 6 and 7 have entered into illegal transaction with the defendant No.1 in respect of item Nos. 16 and 17. Properties have been validly acquired by the defendant Nos. 6 and 7 over 20 years ago and the claim of the plaintiff in respect of the said properties is completely false. In view of this contrary contention taken by the 1 st 48 O.S. No. 2838/2007 defendant against to claim of the plaintiff, I perused Ex.P17 and P.18 and also Ex.D13 to D17. According to Ex.D17, the father of the defendant Nos. 6 and 7 purchased the property for a valuable consideration. As the transaction already took place upon the suit item Nos. 16 and 17 and the same transaction also not challenged by the plaintiff before any authorities except before this court, the Ex.P17 and P18 and Ex.D13 to Ex.D17 are evident that suit item Nos. 16 and 17 properties are not within the purview of joint family of the plaintiff and the 1st defendant. Other question Whether the defendant No.6 and 7 and their father are the bonafide purchaser or not is the second question and if the defendant Nos. 6 and 7 succeed to comply the ingredients of their bona fideness to purchase the suit item Nos. 16 and 17 and an additional issue has been framed with respect to this, that bona fidness will be considered at the stage to answer the additional issue No.3. As the 1st defendant took a contrary contention against to the claim of the plaintiff with respect to suit item Nos. 16 and 17 and Ex.P17 and Ex.P18 as well as Ex.D13 to Ex.D17 also evident that suit item Nos. 16 and 17 properties are already went out of the family of the plaintiff 49 O.S. No. 2838/2007 and the 1st defendant. As such, according to me suit item Nos. 16 and 17 are not available for partition.
26. According to the plaintiff suit item No.1 property is also a joint family property of both the plaintiff and the 1 st defendant. As per the plaintiff, the 1st defendant being a Kartha of the family and who being look after the affairs of the joint family, the 1st defendant due to his old age nothing more a independent income to purchase suit item No.1, as this plaintiff being a dutiful son of the 1 st defendant, the plaintiff's sweat and labour income eked out from the agricultural operation, the plaintiff has also grown a commercial crop of grapes and all other commercial crops in their land, the plaintiff extract the income and same was given to the 1st defendant to purchase the suit item No.1, as such suit item No.1 property also a subject matter of partition. To substantiate his claim the plaintiff relied on Ex.P2. EX P2 is the assessment register pertains to suit item no 1,for the year of 2007. Ex.P2 speaks that suit item No.1 stood in the name of Chikkavenkataswamappa who is the 1 st defendant. on the other hand the 3rd defendant and her Lrs contended that the plaintiff and the defendant no 2 to 5 are the children of the defendant no 1. The item No.1 of the suit 50 O.S. No. 2838/2007 schedule property is the self acquired property of the defendant No. 1 which has been gifted in favour of the defendant No.3 vide registered Gift deed dated 11.08.2006 and same was registered in the office of the Sub-registrar, Yelahanka, Bengaluru. In support to claim of the 3 rd defendant, the defendant No. 3 relied on Ex.D2 Sale deed which was executed by Karnataka Housing board in favour of the 1st defendant on 02.08.1999. Ex.D3 Gift deed dated 11.08.2006, Ex.D4 Certificate issued by BBMP. Ex.D5 Katha Extracted issued by BBMP, Ex.D6 tax paid receipt. Ex.D7 and Ex.D8 are the Encumbrance Certificates. Ex.D2 and Ex.P2 obvious 1st defendant was the absolute owner in possession of the suit item No.1. Ex.D3 to Ex.D7 are speaks suit item no.1property registered in the name of the 3rd defendant ,who is in the possession of suit item No.1 by virtue of gift deed dated 11.08.2006 as per Ex.D3. According to the 1 st defendant suit item No. 1 property is the self acquired property of the 1st defendant and according to the 1st defendant, in addition to being an agriculturist, the 1 st defendant also ran a finance and money lending business and it was through that income that he acquired the Schedule Item No. 1. The plaintiff cannot make any claim in respect of 51 O.S. No. 2838/2007 item No. 1, as the same is a self acquired property of the 1 st defendant which he has gifted to his daughter the defendant No.3. It is not the case of the plaintiff that the 1 st defendant colluded with the defendant No. 3 the defendant NO 3 got obtained the EX D3 gift deed, but it is the case of the plaintiff that the 3rd defendant got the gift deed as per Ex.D3 by playing a fraud upon the Will of the 1st defendant. When this being the situation. it is necessary me to peruse the pleading of the plaintiff and evidence. Records shows that the plaintiff though he plead the pleading of fraud he has not plead any incidents to plea of fraud and the plaintiff have no cogent evidence,that he has placed before the court to substantiate his claim. Even in the cross examination of the DW1 no suggestion suggest put by the the plaintiff to the DW1 so for the alleged fraud on the will of the 1 st defendant. On the other hand the contention taken by the 1st defendant at his written statement that he gifted the suit NO 1 property in favour of the defendant NO 3 remains as unchallenged, moreover on pleading of the plaintiff itself also disclose that the suit item No. 1 is already went out from the joint family of both the plaintiff and the defendant No.1. As such, I am of the 52 O.S. No. 2838/2007 opinion that suit item No.1 property also not available for partition as claimed by the plaintiff.
27. According to the plaintiff suit item No. 18 is the joint family property of both the plaintiff and the defendant Nos. 1 to 5. To substantiate the claim of the plaintiff, PW1 relied on Ex.P22 Sale deed dated 21.11.2006. On the other hand the defendant No. 8 contended that the defendant No. 8 is the bona fide purchaser and he claims absolute ownership on the property . The suit item No. 18 is one of the landed property bearing Sy. No. 153/2 of Thatamachanalli, Amanikere, Vijaypura hobli, Devanahalli taluk to an extent of 0,27 guntas. According to Ex.P22, the defendant No. 8 contended that suit item No. 18 is one of the self acquired property of the 1st defendant and same was purchased by the 1st defendant and his brother Late Munishamappa from its lawful owner on 23.09.1953. Perused the plaint, in the plaint, the plaintiff mentioned his age as 54 years as on the date of filing of this suit. Even tally the date of 23.09.1953 with current age of the plaintiff, the plaintiff might be attain the approximate age of 1 or 2 years old as on the date of registration of the sale deed as per Ex.P22. When such being the case I have no hesitation to disbelieve the case of the 53 O.S. No. 2838/2007 plaintiff. Moreover the plaintiff have no a document to show that when he earned a money and purchased the property in the name of his father i.e., 1 st defendant. As such, the plaintiff do not have any document to show that the suit item No. 18 is the joint family property of both the 1st defendant and it would not believe that the plaintiff acquired the suit item No. 18 by his sweat and blood. Accordingly the suit item no 18 not available for partition as he claimed. Subject to reason assigned to additional issue No.1 pertains to the suit item No. 2 and 4 to 15, I have answered the issue No. 1 and 4 in the partly affirmative.
28. Additional Issue No. 1: According to the PW1, suit item No.2 to 15 and 19 to 23 are also a joint family properties of both the plaintiff and the defendant No. 1 to 5. In substantiate to his claim, the PW1 relied on Ex.P4 to Ex.P16 and on the contrary the defendant No. 3 i.e., DW1 averred that during life time of father of the defendant No. 3 Late Chikkavenkatashamappa executed a registered Will dated 02.04.2007 as per Ex.P21 and Ex.D9. Wherein the 1 st defendant bequeathing the item Nos. 7, 8, 9 and 21 in favour of Smt. Jayamma i.e., defendant No. 3 and her sister Smt. Savithramma i.e., the defendant No. 5. The Lrs of the 54 O.S. No. 2838/2007 defendant No. 3 are entitled half properties and the defendant No. 5 Smt. Savithramma is entitled other half share upon suit item No. 7,8,9 and 21. As such they cannot be deemed to be the joint family property of the plaintiff and the defendants. After perusal of Ex.P4 pertains to suit item No. 3, wherein the 1st defendant name has not been mutated in the coloumn No.9 but in the coloumn No. 12(2)of the RTC extract name of the 1st defendant mutated as there is no katha made out in the name of the 1 st defendant over the property it can not be said that suit item no 3 property belonged to 1st defendant . As such the plaintiff failed to show that suit item No. 3 is the joint family property and belongs to the plaintiff and the defendant Nos. 1 to 5 hence according to me suit item no 3 property not available for the partition. Ex.P5 pertains to suit item No. 4, wherein the katha coloumn exhibit that the 1st defendant have a right to an extent of 0,08 guntas upon the land bearing sy no. 6 of Bijuvara Village. Ex.P6 pertains to suit item No. 5. Ex.P6 speaks that father of the plaintiff have a right over the land bearing sy no. 47/1 of Bijuvara Village to an extent of 0.31 guntas. Ex.P7 pertains to suit item No. 6. Ex.P7 speaks that the father of the plaintiff i.e., the 1 st defendant have a right 55 O.S. No. 2838/2007 over the land bearing Sy. No. 58 of Narayanpura village, Vijaypur holbi to an extent of 2 acre 26 guntas. Ex.P8 pertains to suit item No. 7, speaks that the father of the plaintiff i.e., the 1st defendant have a right upon the land bearing Sy. No. 72/4 of Bijuwara Village to an extent of 2 acre 9 guntas. Ex.P9 pertains to suit item No. 8. Ex.P9 speaks that the father of the plaintiff i.e., the 1st defendant have the right upon the land bearing Sy. No. 73/3 of Bijuvara village, Vijaypur hobli to an extent of 0.24 guntas. Ex.P10 pertains to suit item No. 9, Ex.P10 speaks that the father of the plaintiff i.e., the 1 st defendant have the right over the land bearing Sy. No. 71/1 of Bijavara village, Vijaypur holbi to an extent of 0.37 guntas. Ex.P11 pertains to suit item No. 10, Ex.P11 speaks that the father of the plaintiff i.e., the 1st defendant have a right over the land bearing Sy. No. 179 of Thatamachanahalli, Amanikere, Vijaypur hobli to an extent of 0.10 guntas out of its total extent. Ex.P12 pertains to suit item No. 11. Ex.P12 speaks that the father of the plaintiff i.e., the 1 st defendant have a right over the land bearing Sy. No. 180 of Thatamachanahalli, Amanikere, Vijaypur holbi to an extent of 0.02.12 guntas out of its total extent. Ex.P13 pertains to suit item No. 12 and the 1st defendant have a right to an extent of 56 O.S. No. 2838/2007 1 Acre 25 guntas over the land bearing Sy No. 181, Ex.P14 pertains to suit item No. 13 that the 1 st defendant have a right to an extent of 0.07 guntas over the land bearing Sy No. 182, Ex.P15 pertains to suit item No.14, that the 1 st defendant have a right over the property to an extent of 0.12 guntas, out of its total extent over the land bearing Sy No.
183. Ex.P16 pertains to suit item No.15, land bearing Sy. No. 186 and Ex.P16 speaks that the 1st defendant have a right to an extent of 0.04 guntas out of its total extent. But the plaintiff claims that the suit item Nos. 20 to 23 are the joint family properties of both the plaintiff and the defendant Nos. 1 to 5. But the plaintiff nothing a document to show the existence of suit item Nos. 20 to 23. unless the plaintiff shown the evidence so far existence of the property court cannot presume the existence of the property as claimed by the plaintiff . As such, the suit item No.20 to 23 are properties are also not available for partition as claimed by the plaintiff.
29. On the other hand the defendant No.3 i.e., DW1 averred that out of all the suit schedule properties the defendant No.3 have claims absolute ownership upon suit Item No. 1 and no one else has any manner of right, title or interest over the property. That the item Nos. 2 to 5 are the 57 O.S. No. 2838/2007 ancestral properties of the plaintiff and the defendant Nos. 1 to 5 and the remaining item Nos are the joint family properties of the defendant No. 1 who has derived title of the same by virtue of a family partition between himself and his brothers excluding Item No.1. As such the defendant Nos. 2 to 5 are entitled to 1/5th share each out of all suit schedule properties except the item No.1 which is exclusively belongs to the defendant No. 3. In support to his claim DW1 got marked one Will dated 02.04.2007 as per Ex.D9. Perused the Ex.D9,wherein testator of Ex.D9 i.e., Chikkavenkatashamappa bequeath a Will in favour of the defendant No.2 i.e., his 1 st daughter by name Ratnamma. According to Ex.D9 testator the 1st defendant bequeath a land bearing Sy. No. 11 to an extent of 1 Acre 4 guntas i.e., item No. 20 of suit schedule but neither the plaintiff nor the defendants have produced any single document to show the existence of the suit item property No.20. According to Ex.D9 testator Chikkavenkatashamappa bequeath a Will in favour of the plaintiff and he assigned totally two items properties. In view of Ex.D9 Will the testator bequeath a Will upon a land bearing Sy. No. 58 to an extent of 2 Acre 34 guntas of Narayanpura Village, Vijayapur hobli i.e., suit item No.6. Land bearing Sy. 58 O.S. No. 2838/2007 No. 25 of Gonur to an extent of 0.10 guntas i.e., item No. 22 of suit schedule. Testator Chikkavenkatashamappa bequeath a Will in favour of 3rd defendant i.e., Dr. Jayamma and the 5 th defendant i.e., Savitramma upon a land bearing Sy. No. 72/4 to an extent of 2 Acre 6 guntas of Bijuvar Village, Vijayapur hobli, Devahalli Taluk. Land bearing Sy. No. 73/1 to an extent of 0.35 gunts of Bijjavar village, Vijayapura Hobli, Devanahalli Taluk. Land bearing Sy. No. 73/2 to an extent of 0.22 guntas of Bijjavar village, Vijaypura Hobli, Devanahalli Taluk and Land bearing Sy. No. 73/3 to an extent of 0.22 guntas of Bijjavar village, Vijaypura Hobli, Devanahalli Taluk. Ex.D9 also speaks the that the testator i.e., 1st defendant Chikkaventakashamappa also bequeath 6 item properties in favour of his 3rd daughter by name Anjanamma i.e., 4th defendant. According to Ex.D9 the testator bequeath a property land bearing Sy. No. 179 to an extent of 0.10 guntas of Thatamachanalli amanikere. Property the land bearing Sy. No. 180 to an extent of 0.2 ¼ of Thatamachanalli amanikere. Land bearing Sy. No. 182 to an extent of 0.07 guntas of Thatamachanalli amanikeres. Land bearing Sy. No. 183 to an extent of 0.12 guntas of Thatamachanalli amanikere. The land bearing Sy. No. 186 to an extent of 0.03 guntas of 59 O.S. No. 2838/2007 Thatamachanalli amanikere and the land bearing Sy. No. 187 to an extent of 0.35 guntas of Thatamachanalli amanikere. According to DW1 as per Ex.D9, suit item No. 6, 7, 8, 9, 10, 11, 13, 14, 15, 21, 22 and 23 are not a property subject to partition and Will as per Ex.D9 prevails over the suit Item No. 6, 7, 8, 9, 10, 11, 13, 14, 15, 21, 22 and 23. As such DW1 seek for the dismissal of the suit.
30. On the other hand learned counsel for the plaintiff vehemently argued that that the EX D9 will is one of the document create by the the defendant Nos. 2, 3 and 5 for the purpose of knock of the valuable properties. Further argument of the plaintiff is that the defendant no 2,3 and 5 are failed to examine the attested witness before the court, in compliance of Section 68 of Indian Evidence Act. In support to his claim learned counsel for the plaintiff also relied on
1) AIR 1994 MP 5 Bherulal Vs Ramkunwarbai and others wherein the Hon'ble Court has held that Succession Act (39 of 1925) S.63(c) - Will - Proof -
Registration is not proof of due execution of will - Propounder is required to show that will was signed by testator- He at that time was in a sound and disposing mind - Understood the nature and effect of the disposition and 60 O.S. No. 2838/2007 put signature of his own free will - No evidence produced to show that will was signed by testator and about his mental condition - Evidence of chance witness deposing about personal acknowledgment about signature received from testator, not dependable-
No evidence why one son of testator was disinherited-Held, authenticity and execution of will was not proved.
2) AIR-2009-SC-1766 Bharpur Singh and others Vs Shamsher Singh- Succession Act (39 of 1925) S.63-Evidence Act (1 of 1872), S.68, S69, S70, S90 - Will - Nature of proof required- Suspicions circumstances surrounding execution of Will indicated - Propounder must offer reasonable explanation to remove such suspicious circumstances.
3) ILR-2002-KAR-1963 Virupakshappa Malleshappa and others Vs Smt. Akkamahadevi and others - Indian Succession Act 1925, (Central Act No. 39 of 1925) - Section 68 - Defendants propounded a Will in which the Testator had disinherited his wife and daughter.
Trial Court rejected the Will on the ground that there are suspicious circumstances surrounding the Will and the evidence of the only attesting 61 O.S. No. 2838/2007 witness is unworthy of acceptance and also on the ground that when at more than one place there are misstatement of facts, it was necessary on the part of the propounder to have examined the scribe.
In appeal Hon'ble High Court found that the Trial Court was justified in rejecting the Will.
4) ILR - 2007- KAR-1484 W.E. Sambandam Vs W.E. Sathyanarayanan and others - Indian Succession Act, 1925- Sections 59, 61, 63, 68 and 222-Will-
Proof of Suspicious Circumstances-Tests to be applied-Satisfaction of the Court-
Execution of the registered Will-Typed Will came to be registered when the testator was in hospital- Suspicious character of the Will- Finding of the Trial Court -Will is not genuine-Challenge to-
Held, A mere registration of the Will would not wife out the suspicious character of a Will-Learned Trial Judge has rightly disbelived the Will.
5) ILR -2007-KAR-5160- Sharanabasappa and others Vs Shivakumar and others -
Indian Succession Act 1925 - Section 63 -
Compliance of the provisions of - Will -
Genuineness of - Onus of proof-
Suspicious circumstances- Duty of the propounder to discharge- Discrepancies 62 O.S. No. 2838/2007 pointed out to take away the genuineness or validity of the Will - Held, mere compliance of the provisions of law more particularly Section 63 of the Indian Succession Act by examining the relevant persons and the said persons speaking about the Will alone is not sufficient - the Will propounded should inspire the confidence of the Court as well - On facts, Held, the alleged testator himself had not made the Will is evident from the fact that the handwritten draft which is said to have been enclosed in the envelope is incomplete and the same does not indicate that the same has been executed - Therefore, the enclosing of the draft itself becomes suspicious circumstance to indicate that the incomplete draft which has come into possession of the plaintiff has been turned out into a Will by using the paper which was available in the envelope and therefore, the Will is not a genuine document. Hence, the plaintiffs cannot seek relief of declaration on the basis of the said Will- Judgment and Decree of the Trial court is set aside.
6) ILR - 2008-KAR-2115 - J.T. Surappa and another Vs Satchidhanandendra Saraswathi Swamiji Public Charitable 63 O.S. No. 2838/2007 Trust and others- INDIAN SUCCESSION ACT, 1925-Section 2(b) - Will - Proof of-
Legal requirements - duty of the Court-
Five steps to be considered- Held- Under the act, the Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all.
Therefore, the first steps is that if the documents produced before the Court prima facie do not satisfy these legal requirements, the Court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document-
FURTHER HELD. The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual- The third step would be to find out whether the testator was in a sound state of mind at the terms of executing the Will- The forth steps would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will - the fifth step is to consider whether the Will that is executing is in 64 O.S. No. 2838/2007 accordance with section 63 of the Act read with section 68 of the Evidence Act.
7) ILR - 2008- KAR-2485 - Savithri and others Vs Karthyayani Amma and others-
Succession Act, Section 63 - Will - Validity - Plea of undue influence and coercion - Testator a cancer patient
living with his sister - Sister, her son and grandsons looking after him - Bequest of property in such circumstances, in favour of nephew and nieces of testator -
Natural - Will registered - Not canceled though testator or lived for 7 years after its execution - Fact by itself sufficient to uphold Will.
8) ILR - 2009- KAR-992 - Smt. Giddamma and another vs Smt. Venkatamma -
INDIAN EVIDENCE ACT, 1872 - Section 67 to 69 - Section 68 - Proof of execution of the document - Mandatory requirement -
Section 69 - Proof of a document where no attesting witness found - HELD, Section 68 of the Act lays down the mode of proof of a document. The mandatory requirement is that, at least one of the attesting witnesses should be examined.
Section 69 provides for proof of a section 69 contemplates that the handwriting of atleast one attesting witness and the signature of the person executing the 65 O.S. No. 2838/2007 document is required to be identified and proved through the witnesses. The proof of handwriting and /or the signature of a scribe is not the stipulation under Section 69 of the Act. - ON FACTS, HELD, The evidence of DW3 merely identifying the handwriting and also the signature of his father the scribe of the Will Ex.D1 is of no legal consequence and does not meet the stipulation under section 69.
30 On the other hand, learned counsel for the defendant No.3 argued that as the PW1 categorically admits in his cross examination so far bequeathing of Will it need not required to comply the Section 68 of Indian Evidence Act. Perused the Cross examination of PW1. It is true PW1 in his cross examination admitted the suggestion put forth by the Defendant no 3, that the as per Ex.D9 Will bequeath by the 1st defendant in favour of his son and daughters. Now the question would arise before this court is that, is it require to examine the attested witnesses to the testamentary documents otherwise such admission . My answer is yes it requires. It is true admitted facts need not to be proved in view of Section 58 of Indian Evidence Act, the same law is herein extracted 66 O.S. No. 2838/2007 58 Facts admitted need not be proved. --No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
31. Section 68 of Indian Evidence Act is herein extracted;
68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
32. after gone through the above authorities one thing is evident that EXD9 document is a document which need close scrutiny according to the provision of the law. 67 O.S. No. 2838/2007
Admittedly Ex.D9 is a Testamentary document and also a document in the nature of bunch of suspicious. To spell out all the suspicious circumstances involved on the Will as alleged it is the ut most burden on the person who relied on it. It is true facts admitted need not to be proved. At the same time, it requires the facts admitted to be proved otherwise than by such admissions. As such mere on the stray admissions made by the PW1 in his cross examination it cannot to be said that the defendant Nos. 2, 3 and 5 have proved the contents of Ex.D9 Will and constructiveness and mandatory nature of the law as contemplated under section 68 of indian evidence act and also can not be dispensed mere upon the admission made by the PW1 . As such the defendant Nos. 2, 3 and 5 failed to prove the contents of Ex.D9 Will ,hence I am of the opinion that that the suit item property no 2 ,4 to 15 are available for the partition between the plaintiff and the defendant No. 2 to 5. Accordingly I answer the Additional issue No. 1 in the negative.
33. Issue No. 2 and 3: Issue Nos. 2 and 3, same issues burden to prove cast on the defendant No. 8 whether the defendant No. 8 is the bonafide purchaser of suit item No. 18 property sold by the first defendant for his family legal 68 O.S. No. 2838/2007 necessities. In order to prove the case against to the defendant No.8, the defendant No.8 himself examined before the court as DW3 but he has not relied on any documents. In his examination in chief the defendant No.8 averred that he had acquired absolute right, title and interest over item No. 18 of suit schedule property through a registered deed of sale executed in his favour by Sri. H. Chikkavenkataswamappa as per sale deed dated 21.11.2006 which is at Ex.P22. Ex.P22 relied by the plaintiff, it is the claim of the plaintiff that land bearing Sy. No. 153/2 to an extent of 0.27 guntas i.e., suit item No.18 was the joint family property of both the plaintiff and defendant Nos. 1, as the plaintiff acquired the joint family right upon the suit item No.18 for his act of toiled his sweat and blood to acquire the item No.18 properties. Perused the Ex.P22. Ex.P22 is the registered sale deed dated 21.11.2006. After close scrutiny of Ex.P22 it evidence that originally suit item No. 18 property belongs to one Mariyappa S/o Late Bairappa and said Mariyappa S/o Late Bairappa got sold suit item No. 18 property in favour of late Ramaiah S/o Venkatashamappa, Lakshmaiah S/o Venkatashamappa by virtue of registered sale deed dated 12.08.1948. In turn said Ramaiah S/o Venkatashamappa and Lakshmaiah S/o 69 O.S. No. 2838/2007 Venkatashamappa sold the suit item No.18 property in favour of Munishamappa S/o Late Doddahanumegouda by virtue of registered sale deed dated 23.09.1953. Said Munishamappa S/o Late Doddahanumegouda who is none other than brother of the 1st defendant. Among the partition between Munishamappa S/o Late Doddahanumegouda and 1 st defendant suit item No.18 property fallen to the share of the 1st defendant. According to the Ex.P22 title over the property to the family of the 1st defendant arrived on 23.09.1953. Perused the plaint, in the plaint, the plaintiff age was mentioned as 54 years old as on the date of filing of this suit. When compare the age of the plaintiff with sale deed dated 23.09.1953 the plaintiff might be probably attain the age of of 1 or 2 years old child. Then, the question of Ex.P22(a) which was elicited through the mouth of DW3 does not arise because, even the plaintiff might be in the age of 1 or 2 years and his sister 2nd defendant was in the age of 4 or 5 years, how it would possible that the plaintiff and the defendant Nos. 2 to 5 are rendering their dedication to purchase the suit item No. 18, therefore the plaintiff failed to established his case with an preponderance of probabilities, on the other 70 O.S. No. 2838/2007 hand the defendant no 8 established that the suit item no 18 property was the self acquired property of the 1st defendant.
34. Further learned counsel for the defendant No.8 interact me through the cross examination portion of PW1. PW1 in his cross examination unequivocally admits he was two years old boy when his father and brother of his father had purchased the item No. 18 of suit schedule property. The PW1 further unequivocally admits in his cross examination the same is herein extracted "it is correct to suggest that it is my father's self acquired property as it had fallen to his share. It is correct to suggest that as it is the self acquired of my father he was having a exclusive right to sell item No.18 of suit schedule property". Further learned counsel for the defendant No.8 interact me through the cross examination portion of PW1 that father of PW1 was not addicted to any bad habits. And also further elicited through the mouth of PW1 the same is herein extracted "it is correct to suggest that with regard to opinion of my father in connection to family affairs, marriage and property dealings were obeyed by his children". Again I Perused the Ex.P22. EX P 22 evident that the Suit item No.18 property sold by the 1 st defendant for the 71 O.S. No. 2838/2007 necessity of the amount to develop other lands as well as other family necessities. With these observations one thing is evident that the suit item No.18 property belong to the 1 st defendant it was purchased by the 1st defendant and his brother Munishamappa in the year 1953. On family partition between the 1st defendant and his brother, suit item No. 18 fallen to the share of the 1st defendant. As such, the 1st defendant became the absolute owner in possession of the suit item No.18, the 1st defendant offer to sale the suit item No. 18 property in favour of the defendant No.8 for the 1 st defendant's and his family legal necessities. As such it further evident the defendant no 8 is the bona fide purchaser of the suit item no 18 . Therefore the defendant No.8 though he has not got produced any document, the defendant No.8 through Ex.P22 document proved his title with oral evidence coupled with documentary evidence Ex.P22. Hence, I answered the issue No. 2 and 3 as affirmative.
35. Additional Issue No. 3 : As the issue cast on the defendant No.6 and 7, I gone through the evidence of the defendant No.6 and 7. On behalf of the defendant No.6 and 7, M. Narayanaswamy who being the defendant No.6 examined before this court as DW2 and in examination in chief he 72 O.S. No. 2838/2007 reiterated all the averments of his written statement and in support to his case DW2 got marked Ex.D13 to Ex.D16 Certified copy of RTC extract, Ex.P17 is the Certified copy of Registered sale deed. According to DW2 the first defendant Sri. Chikkavenkatashamappa was sold the above said lands due to solve his family necessities and also to purchase the agricultural land i.e., cultivable land since the above said land was not fit for agricultural purpose and hence the 1st defendant had sold the land in favour of his father Sri. Minishamappa and the same is reflected in the sale deed executed by the 1st defendant in favour of his father Sri. Munishamappa and the said land was self acquired property of the first defendant i.e., vendor of our father, hence the plaintiff nor the defendant Nos. 1 to 5 are not having any right, title over the item No.16 of the suit schedule properties is not belongs to the plaintiff. The vendor i.e., the defendant No.1 after sold the property of Item No.16 in favour of his father, subsequently purchased another land at Chikkaballapura Taluk, Nandi Village, wherein Sy. No. 4/5 of Thumakanahalli to an extent of 0.35 guntas, from the sale proceeds with respect to item No.16 and 17, the 1 st defendant and his family members including the plaintiff have sold the 73 O.S. No. 2838/2007 said property to Sri. K.R. Reddy for a sum of Rs. 70,00,000/- and the same was admitted by the PW1 in the cross examination, but PW1 stated in his chief examination that they have sold the said property for Rs. 30,00,000/-. In support to his claim DW2 relied on Ex.D17 Sale deed which was registered on 03.09.1988. Perused the Ex.D17. Ex.D17 sale deed came to be registered between the father of the defendant No.6 and 7 by name Munishamappa and the 1 st defendant Chikkavenkatashamappa upon the suit item No.17 and 18. Based on the Ex.D17 the khata was made out in the name of Munishamappa, said Munishamappa was died his sons by name Narayanaswamy i.e., 6th defendant and Nagaraja i.e., 7th defendant got partitioned the property among themselves. To substantiate the title to the defendant No.6 and 7 from his father, the DW2 got produced certified copy of RTC extract as per Ex.D15 and D16 and as per Ex.D13 and D14. Wherein Ex.D13 to D16 disclose the name of the defendant No.6 and 7 in the coloumn No.9 i.e., Kathadar coloumn and coloumn 12(2) of RTC extract got mutated. On the other hand the plaintiff case is suit item No. 16 and 17 properties are the joint family properties of the plaintiff and the 1st defendant and to that effect the plaintiff hold a lengthy 74 O.S. No. 2838/2007 cross examination to the DW2. Surprisingly learned counsel for the plaintiff put a suggestion to DW2, that item No. 16 and 17 was given to the 1st defendant's share. Further put a suggestion that during the life time of the 1st defendant the item No.16 and 17 properties sold by the 1 st defendant. Further DW2 also answered to a question that the father of DW2 verified all document pertaining to suit item No.16 and 17 and DW2 denied the suggestion that the plaintiff have a co-parcenary right upon the suit item No.16 and 17. DW2 also answered to the question that the suit item No.16 and 17 are bears a common boundary and he also deposed the boundary of both the Survey numbers. On the other hand to testify the claim of the plaintiff, I gone through the cross examination portion of PW1. PW1 in his cross examination unequivocally admits that the suit item No.16 and 17 was purchased by the 1st defendant from one Krishnappa through a registered sale deed dated 29.01.1975, but PW1 denied the suggestion suit item No.16 and 17 properties are the self acquired properties of 1st defendant. PW1 in his cross examination tentatively answered to the question after sold the item No.16 and 17 by the 1st defendant, the 1st defendant, out of the sale consideration, he purchased the land bearing 75 O.S. No. 2838/2007 Sy. No. 4/5 to an extent of 0.35 guntas of Thumakala halli, Chikkaballapur Taluk. In further PW1 admitted the suggestion that PW1 along with his father the PW1 got sold the land bearing Sy. No. 4/5 of Thumakala halli, Chikkaballapur Taluk to a tune of Rs. 33,00,000/-. In support to this suggestion, the defendant No.6 and 7 got confronted one certified copy of sale deed dated 22.12.2006 as per Ex.D1. Perused the Ex.D1. Ex.D1 speaks that the 1st defendant along with PW1 got sold the land bearing Sy. No. 4/5 of Thumakala Village, Chikkaballapur in favour of one K.R. Reddy S/o K. Ramaiah by virtue of registered sale deed dated 22.12.2006 as per Ex.D1. With these answers elicited through the mouth of PW1, is speaks that how the PW1 try to answer the question to justified his claim and Ex.D1 also evident that the 1 st defendant and PW1 got purchased the property of land bearing Sy. No. 4/5 of Thumakalahalli after sold the suit item No. 16 and 17 in favour of father of the defendant No. 6 and 7 as per Ex.D17. With these observations it is of evident that suit item No.16 and 17 for a movement though agreed ,suit item no 16 and 17 are the joint family property of both the plaintiff and 1st defendant, the same sale consideration of suit item No.16 and 17 were appropriated by the 1 st defendant 76 O.S. No. 2838/2007 to purchased the land bearing Sy. No. 4/5 of Thumakalahalli chikkaballapur same has been equated and it further evident that the father of the defendant No.6 and 7 was the bona fide purchaser of suit item No.16 and 17 as the EX D 17 sale deed also have its own statutory presumption. The same presumption also even not try to by rebutted by the plaintiff to dis believe the case of the defendant No. 6 and 7. After death of the father of the defendant 6and7 the defendant No. 6 and 7 succeed the title over the property by intestate succession therefore I have no hesitation to believe the case of the defendant No. 6 and 7 that the defendant No. 6 and 7 are the absolute owner in possession of the suit item No. 16 and 17. Hence, I answer to the Additional issue No.3 as affirmative.
36. Additional issue No.4: The net claim of the 3rd defendant and as the 3rd defendant was died during pendency of this suit, her Lrs defendant Nos. 3(a) i.e., her husband by name R. Venkataramareddy examined before this court as DW1 and in his examination in chief he contended that the defendant No.1 has gifted the item No. 1 in favour of the defendant No.3 by virtue of a registered Gift deed as per Ex.D3 out of natural love and affection. That the item No. 1 of 77 O.S. No. 2838/2007 suit schedule property is the self acquired property of the defendant No.1 the same was allotted from KHB and same was purchased out of his self earnings vide registered sale deed dated 02.08.1989. Since from the date of gift deed the defendant No.1 handed over the possession of the item No.1 of suit schedule property to the defendant No.3. After obtained the registered Gift deed dated 11.08.2006 all revenue records stands in the name of 3rd defendant and she continues possession and exercising all rights of ownership over the same as absolute owner till death of the defendant No.3 and after the death of the 3rd defendant the Lrs of the defendant No.3 are in possession and enjoyment of the same.
37. The LRS of the defendant No. 3 has relied on the decisions reported in
1. AIR 1993 KAR 148 - (A) Hindu Law - Joint family - Property held by its member -
Presumption that it is joint, when arises
- Existence of nucleus - Onus to prove -
Manager or member managing family affairs - Position of. (B) Hindu law - Joint family- Family nucleus - Existence of - Is a question of fact. Such a fact - can be proved by direct or circumstantial evidence.
2. 1998(7) SCC 367 78 O.S. No. 2838/2007 A. Civil procedure code, 1908 - or 6 Rr. 2 and 12 - pleadings - inconsistency -
burden of proof - suit filed by the Appellant against Respondent claiming half share in a house on ground of being in joint possession and seeking partition on the basis of a registered instrument -
Defendant Respondent contending that Plaintiff had no right, title or interest in the said house and the same belongs to him exclusively of which he was in possession as the owner - courts below on being satisfied as to the exact explanation given by the Defendant that there were enough resources with him to purchase the property and put up construction thereon, burden lay very heavily on the Plaintiff to prove his case
- claim made by Plaintiff Appellant lacking in necessary particulars as to the manner in which he could support the same - Plaintiff taking contradictory stands - intrinsic material demonstrating that recitals in the registered instrument could not have been true - Moreover, that document was a certified copy of the registered deed and trial court not admitting it in evidence on the ground that absence of the original document had not been duly accounted for and 79 O.S. No. 2838/2007 High Court rightly taking the view that S.65(f) of evidence Act was not attracted
- No other evidence , documentary or oral, adduced by Plaintiff - courts below finding that the evidence tendered by Appellant was inconsistent, unnatural and thoroughly unreliable - held, case put forth by the Appellant as to whether the property was a joint family property or whether he had contributed any funds towards purchase of the plot are principally in the region of appreciation of evidence and do not call for any interference by the Supreme Court in exercise of jurisdiction under Article 136
- Even otherwise the concurrent finding of the trial court and the High Court are unexceptionable - Assertions and acclamations will not produce a strong case - Constitution of India, Art.136 -
evidence act 1872, Ss 101 and 102 -
Hindu Law - Joint family - Partition Suit.
B. Evidence Act, 1872- S. 65(f) - Certified copy of a registered deed produced by Plaintiff Appellant in support of his claim
- Trial court not admitting the document in evidence on the ground that absence of the original document had not been duly accounted for - document not a public document and it could not have 80 O.S. No. 2838/2007 been let in evidence except after explanation as ti the non-availability of the original in an appropriate manner -
explanation offered by Appellant hat the original document has been withdrawn by the Respondent from the office of the Sub - Registrar concerned on facts, not found to be convincing - in the ordinary course of probabilities, the original document should have been in custody of the appellant in whose favour it had been executed - On facts held, plaintiff rightly denied benefits of S.65(f).
3. AIR 2004 KAR 479 (A) Hindu Law - Joint family properties -
Business, movable and immovable properties of father - Claimed to be joint family properties by plaintiff son being purchased from nucleus of his grandfathers ancestral property -
Property in hand of grandfather proved to be self acquired property and not ancestral property - No evidence on record to prove joint family nucleus except self serving testimony of plaintiff
- Fact that father and his family members are HUF - Does not necessarily mean family possessed joint family properties - Thus properties in question held not joint family properties - Father 81 O.S. No. 2838/2007 being absolute owner of said properties, was entitled to dispose of same in manner he desires.
(B) Hindu Law - Sale of property by father -
Sale deeds recites that property in question was self acquired property-
mere fact that he joined his sons in execution of sale deed - Would not be ground to infer that property conveyed under sale deed was ancestral property.
4. LAWS (KAR) 2007 1223 Joint family Property - indeed there is always a presumption that the joint family continues to be joint. The normal state of every Hindu family is joint, presumably, every hindu family is joint in food, worship and estate. In the absence of proof of division of a joint hindu family the presumption is until the contrary is proved, the family continues to be joint but however, it is also to be noticed that there is no presumption that a family, because it is joints, possesses joint property or any property
- whether the lower appellate court was justified in reversing the judgment and decree of the trial court holding that item No. 2 is self -acquired property of Defendant No. 1.
5. LAWS (KAR) 2005 117.
82 O.S. No. 2838/2007
Hindu law - Partition - Property standing in name of male member - of joint family - presumption regarding - there are documents to - show she is paying the taxes and katha stands in her name
- question of shifting the burden to the Defendants does not arise - however the Defendants were able to establish does that the - property was purchased out of the income of her husband that the -
other personal of Smt. Saroja.
Therefore the LRs of the defendant No.3 sought for dismissal of the suit, as the suit item No. 1 property claims to be a self acquired property of the 1st defendant.
38. On the other hand the plaintiff contended that the suit item No.1 property is also joint family property of both the plaintiff and 1st defendant and suit item No.1 property purchased by the both plaintiff and defendant No. 1 out of the joint nucleus of joint family. As the plaintiff being a dutiful son of the 1st defendant, he earned the money and gave the same to the 1st defendant to purchase the suit item No.1 property. To substantiate his claim, the plaintiff hold a lengthy cross examination against to the DW1 that the wife of DW1 was only a educated member in the family of both plaintiff 83 O.S. No. 2838/2007 and the 1st defendant. As the 3rd defendant was being a BDS degree holder, the 1st defendant got opened a separate clinic to the 3rd defendant. These are all the questions are not substantiate the claim of the plaintiff, now the question in issue before this court is whether suit item No.1 property was the self acquired property of the 1st defendant and whether the 1st defendant executed a registered gift deed as per Ex.D3 after compliance of section 123 of Transfer of property act. To dissect these points the counsel for the plaintiff made effort by holding the cross examination to DW1 that the suit item No.1 is the joint family property of both the plaintiff and the 1st defendant. It is an admitted fact that the plaintiff he being got a paramedical graduation he kept open the medical store at Devanahalli from 1991. Perused the Ex.D2. Ex.D2 registered sale deed executed by KHB in favour of 1st defendant on 02.08.1989. According to the plaint the plaintiff attained the age of 54 years as on the date of filing of this suit. But the plaintiff did not produced any his birth certificate or his SSLC marks card to substantiate his date of birth. Inspite to calculate the age of the plaintiff as of 02.08.1989 the plaintiff was probably attained the age of 20 or 22 years. According to the plaintiff suit item No. 1 was purchased by 84 O.S. No. 2838/2007 the 1st defendant earlier to 05.02.1989 by paying installment sale consideration to the Karnataka Housing Board and DW1 categorically denied the suggestion that the suit item No. 1 is joint family property of both the plaintiff and the 1st defendant. DW1 also admitted the suggestion at the time of purchase the suit item No.1 the plaintiff and the 1 st defendant are lived under the same roof of the house. Despite the plaintiff failed to establish what sort of amount he has given to his father to purchase the suit item property No.1 and what kind of the work he was doing to support the earning the income as same was gave to the 1st defendant. So far this is concerned the plaintiff made an very bald pleading that he being son of the 1st defendant he had assist the agricultural work to the 1st defendant. Even if taken into consideration, the age of the plaintiff as on the date of purchase the property was approximately 20 or 22 years, then that circumstances in which time that the plaintiff invest for his education, in which time that the plaintiff invest for assist the agricultural work of the 1st defendant. These are all the facts herein without any explanation. As the same facts required to explain and prove by the plaintiff, unless proved that how much of time the plaintiff invest for education and how much 85 O.S. No. 2838/2007 of time the plaintiff invest to assist the agricultural works to the 1st defendant with a cogent evidence the plaintiff can not be say that that the suit item property no 1 is the joint family property of the plaintiff and the defendant. Moreover except the pleading that the plaintiff was assist the agriculture work to his father in support to his claim no evidence has been put forth by the plaintiff .Even the plaintiff failed to examine any witness his favour to substantiate his claim . As such the pleadings and evidence available on record is seems to establish that the suit item No.1 is self acquired property of the 1st defendant.
39. Another issue in fact is that whether Ex.D3 gift deed complied the terms and conditions of section 123 of T.P. Act. Admittedly Ex.D3 is a registered document which was registered on 11.08.2006 at before Sub-registrar, Yelahanka. That the 1st defendant was the donar and the 3 rd defendant was the donee. According to Ex.P24 death certificate 1 st defendant was died on 01.02.2009 and 3rd defendant was died during the pendency of this suit. Ex.D3 came to be registered on 11.08.2006. As such as on the date of Ex.D3 came into effect both the donor and donee were alive. On the other hand the plaintiff hold a cross examination to DW1 that 86 O.S. No. 2838/2007 the 1st defendant as on the date of registered Ex.D3 gift deed he was attain the age of 82 years and he lost his physical and mental condition when that time the 3 rd defendant make use the situation and got Ex.D3 gift deed. Even these are all the suggestion put by the plaintiff to the DW1, the same suggestion are also denied by the DW1. The plaintiff also put a suggestion that Ex.D3 gift deed does not bears the signature of Donee. Though that suggestion admitted by the DW1, after gone through the Ex.D1, it can be seen that the signature of the defendant No.3 in the column of Donee as such same suggestion and its answer over ride the contents of Ex.D1. On the other hand PW1 in his cross examination unequivocally admitted the suggestion that the PW1 reside at Devanahalli by running medical shop along with his wife and children and also PW1 unequivocally admits the suggestion except the suit item No.1 rest of the suit schedule properties belongs to the 1st by virtue of succession. But the PW1 denied the suggestion that his father 1 st defendant lodged a complaint against to the PW1 at Vijayapura police station. Perused the Ex.D10. Ex.D10 is one of the receipt issued by the Sub-inspector of police of Vijayapura police station by registering a C.Misc No. 304/2007. Ex.D10 is evident that the 87 O.S. No. 2838/2007 father of PW1 i.e., 1st defendant lodged a complaint against to PW1 pertains to property.
40. Another question in issue is that whether the suit item No.1 was delivered to the donee at the life time of donor and donee is the question. To ascertain this question I again gone through Ex.P2 katha extract pertains to suit item property No.1. Ex.P2 is for the year of 2006-07 and I also perused Ex.D4. Ex.D4 is the certificate issued by BBMP. Ex.D4 speaks that suit item No.1 katha mutated in the name of the 3rd defendant. And I also perused Ex.D5. Ex.D5 is the katha extract pertains to suit item property No.1, Ex.D5 is for the year of 2018-19. Ex.D5 also evident, khata of suit item property No.1 mutated in the name of the 3 rd defendant. In support to case of the defendant DW1 also relied on Ex.D6. Ex.D6 is the Kandayam paying receipt. Ex.D6 is for the year of 2019-20. Ex.D6 also speaks that katha pertains to suit item No.1 stands in the name of the 3rd defendant. With the above all documents is made it clear that as per Ex.P2, the 1 st defendant hold a khata upon the suit item property No.1. After execute the gift deed by the 1st defendant in favour of the 3rd defendant, Ex.D4, Ex.D5 and Ex.D6 mutated based on Ex.D3 gift deed by the revenue authorities. To this aspect the 88 O.S. No. 2838/2007 plaintiff nothing have any pleading or evidence and even the plaintiff no single suggestion put to DW1 in his cross examination so far delivery of possession to the 3 rd defendant except before this court no where the plaintiff challenged the validity of Ex.D3 gift deed and even the plaintiff no where objected the change of katha made out as per Ex. D4, Ex.D5 and Ex.D6. With these observations the defendant No.3 probablise her case that the Ex.D3 Gift deed comply the section 123 of T.P. Act. Hence I answer Additional issue No.4 as affirmative.
41. It is the main argument canvased by the learned Counsel for the plaintiff that suit item No.1 to 23 are the ancestral and joint family properties of both the plaintiff and the 1st defendant. The defendant No.2 to 5 are being the sister of the plaintiff also entitled for the partition. On the other hand the defendant No.3 though admitted the relationship between the plaintiff and the defendant No.3 and defendant No.2 to 5, the defendant No.3 took a divergent contention that suit item No.1 is the absolute property of the 3rd defendant by virtue of Ex.D3 Gift deed and suit item Nos. 7, 8, 9 and 21 are the absolute properties of the defendant No.3 by virtue of Ex.D2 Will. The defendant No.2 and 5 also 89 O.S. No. 2838/2007 support the claim of the defendant No.3. In another stretch the defendant No.6 and 7 also took specific contention that the suit item No.16 and 17 are the self acquired properties of the 1st defendant and father of the defendant No.6 and 7 by name Munishamappa was the bonafide purchaser of the suit item No.16 and 17. Further the defendant No.8 also took a specific contention against the plaintiff and the defendant No.1 to 5 that he is the bonafide purchaser of suit item No.18. As the plaintiff failed to prove the issue No.1 pertaining to suit item No. 1, 16 and 17 and 18, as the suit item No.16 and 17 are the ancestral and joint family properties of both the plaintiff and the 1st defendant and pertains to suit item no 3 the neither the plaintiff nor the defendant no 1to 5 produced the relevant document to show that the suit item no 3 is the joint family property and made available for partition as such including suit item no 3 suit item no 1 suit item no 16 and 17 and suit item no 18 are not available for partition , the same suit item Properties are not available to partition. The remaining suit item No. 2 and 4 to 15, are available for partition between the plaintiff and the defendant No.2 to 5. It is the main argument canvased by the learned Counsel for the plaintiff is that the defendant No.2 to 5 are the daughters. 90 O.S. No. 2838/2007 As the plaintiff and the 1st defendant made a some more effort to construct a beautiful life of the defendant Nos.2 to 5, the plaintiff and the 1st defendant invested a huge amount for education and to perform marriage of the defendant Nos. 2 to
5. On the other hand the defendant No.2, 3 and 5 argued that, the plaintiff neglected to maintain the 1 st defendant and his wife, the 1st defendant took by the 3 rd defendant to her house and the 3rd defendant look after the all affairs of the 1 st defendant and his wife. The 3rd defendant also provide food, shelter and medicine time to time to the 1 st defendant and his wife, as the 1st defendant was suffered by cancer decease, the 3rd defendant herself only gave shelter to the 1st defendant till his death. In support to submission made by the learned Counsel for the plaintiff, learned counsel for the plaintiff relied on the decision reported in
1) Prakash Vs Pulavathi Case (SC) Civil Appeal No. 7217 of 2013 dated 16.10.2013.
2) Danamma @ Suman Surpur & Anr vs Amar and others Civil Appeal Nos. 188-189 of 2018 dated 01.02.2018.
42. The 1st defendant also in his written statement stated that notwithstanding the above and in the event this Court were to come to a conclusion that any of the property 91 O.S. No. 2838/2007 mentioned in the plaint are joint family properties, the said properties would have to be divided in terms of the Act No.39 of 2005 in terms of which the Hindu Succession Act has been amended giving all daughters an equal right in all joint family/coparcenry properties. If this Court were to come to a conclusion that the properties / any portion of the properties are joint family properties, all the defendants may be given a share in the properties in terms of the Hindu Succession Act.
43. The PW1 sought equal partition upon the suit schedule properties against to defendant No. 2 to 5. As I already observed in the forgoing reasons that the suit item No. 1, 3, 16, 17 and 18 as well as the suit item No. 19 to 22 are not available for partition. On contrary, as I already observed that the suit item No. 2, 4 to 15 are available for partition between the plaintiff and the defendant Nos. 2 to 5. The PW1 sought half share in the suit schedule property between the plaintiff and the defendant Nos. 2 to 5. Admittedly defendant Nos. 2 to 5 are the daughters of the 1 st defendant and full blood sister of the plaintiff. As such, now the issue is in whether the plaintiff is entitled equal share upon the suit item No.2 and 4 to 15. The Learned counsel for the plaintiff also relied on the above two decisions. The main 92 O.S. No. 2838/2007 theme of the above two decisions give by the Hon'ble Supreme Court is that (a) there must be a co-parcner
(b) there must be living father and living daughter as on the date of 09.09.2005 (c) pious obligations (d) concept of survivorship removed.
44. To examine the above all contents made observed by the Hon'ble Supreme Court of India, admittedly the 1 st defendant who was the father of the plaintiff and the defendant Nos. 2 to 5. Father, the plaintiff and the defendant Nos. 2 to 5 are governed Hindu Mithakshara law. Admittedly suit item No. 2 and 4 to 15 ancestral and joint family properties of both the plaintiff and the defendant Nos. 2 to 5. The 1st defendant dying intestate leaving behind the plaintiff and the defendant Nos. 2 to 5 on 01.02.2009 as per Ex.P24. During the pendency of the suit wife of the 1 st defendant also dying intestate leaving behind the plaintiff and the defendant Nos. 2 to 5. This suit came to be filed by the plaintiff on 04.04.2007.
45. To consider rival submission made by the both the counsel for the plaintiff and counsel for the 3 rd defendant, I need to peruse the Ex.P24. Ex.P24 is the death certificate pertains to the 1st defendant. According to Ex.P24, the 1 st 93 O.S. No. 2838/2007 defendant was died on 01.02.2009, which is later date to 09.09.2005. The defendant No.2,3, 4 and 5 are also alive as on 09.09.2009. The defendant No. 3 was died during the pendency of the suit. As such, it evident that the defendant No. 2 to 5 are the daughters who are coparcner to the 1 st defendant. The 1st defendant died by intestate leaving behind the plaintiff and the defendant Nos. 2 to 5. As such the defendant Nos. 2 to 5 are also entitled equal share upon the suit item No. 2 and 4 to 15 as equally to the plaintiff. Therefore, I answer the Additional issue No. 4 as affirmative.
46. Issue No. 5 : In view of the above discussion and my finding on Issue No.1 to 3, I proceed to pass the following;
ORDER The suit of the plaintiff is hereby partly decreed. The plaintiff and the defendant Nos. 2 to 5 are entitled equal share in the suit item Nos. 2 and 4 to 15. Draw preliminary decree pertains to these suit items.
Suit of the plaintiff against to the defendant No. 3 upon suit item No. 1 is hereby dismissed.
Suit of the plaintiff against to the defendant Nos. 6 and 7 upon suit item Nos. 16 and 17 is hereby dismissed.
94 O.S. No. 2838/2007
Suit of the plaintiff against to the defendant No. 8 upon suit item No. 18 is hereby dismissed.
Suit of the plaintiff upon suit item Nos. 3 and 19 to 23 is hereby dismissed.
Draw decree accordingly upon suit item No. 1, 16, 17, 18, 3 and 19 to 23.
[Dictated to the Stenographer, Scripted by her and then corrected, signed and pronounced by me, in the Open Court on this the 5th day of June, 2020) [R. ONKARAPPA] LXII Additional City Civil & Sessions Judge BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 - Sri. B. V. Hanumegowda,
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 - Sri. R. Venkatarama Reddy D3
DW.2 - M. Narayanaswamy
DW.3 - Harish J
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1 - Genealogical Tree.
Ex.P2 - Demand register extract Ex.P3 - Assessment register extract Ex.P4 to Ex.P18 - RTC extracts 95 O.S. No. 2838/2007 Ex.P19 - Legal notice Ex.P20 - Reply notice Ex.P21 - Will dated 02.04.2007 Ex.P22 - Registered sale deed dated 21.11.2006 Ex.P23 - Registered Gift deed dated 11.08.2006. Ex.P24 - Death certificate of Chikkavenkatashamappa
4. List of documents marked on behalf of the defendant/s:
EX D1 - Sale Deed dated 22.12.2006 EX D2 - Sale Deed dated 02.08.1989 EX D3 - Gift Deed dated 11.08.2006 EX D4 - Khata Certificate dated 17.04.2018 EX D5 - Khata Extract dated 17.04.2018 EX D6 - Tax Paid receipt dated 24.04.2019 EX D7 - Encumbrance Certificate dated 27.08.2019 EX D8 - Encumbrance Certificate dated 23.08.2019 EX D9 - Will dated 02.04.2007 EX D10 - Complaint Receipt dated 17.06.2007 EX D11 - Notice dated 21.02.2007 EX D12 - Office Notice dated 01.03.2007 EX D13 - Tax Paid receipt (Sy No. 21/1, 2012-2013) EX D14 - Tax Paid receipt (Sy No. 21/2,2001-2002) EX D15 - Tax Paid receipt (Sy No. 21/1,1997-1998 to 2001-2002) EX D16 - Tax Paid receipt (Sy No. 21/2,1997-1998 to 2001-2002) EX D17 - Will dated 03.09.1998 LXII Additional City Civil & Sessions Judge BANGALORE.