Bangalore District Court
Mrs. E.R Hellan Susheela vs Y. Arokia Raj on 15 February, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 15th day of February, 2020.
O.S.No.26008/2013
Plaintiffs: 1. Mrs. E.R Hellan Susheela,
Aged about 78 years,
W/o Late J. Yesudas,
(Since deceased by LR's Plaintiff Nos.2 to 5
& Defendant No.6)
2. Ms. Violet Ponmani,
Aged about 43 years,
D/o Late J. Yesudas,
both are R/at No.173/2,
Opposite Post Office,
CoxTown Jeevanahalli,
Bengaluru560 005.
3. Y Samuel Rajkumar,
Aged about 57 years,
S/o Late J. Yesudas,
R/at No.12, Mudaliar Street,
1st Cross, Car Street Main Road,
Halasur, Bengaluru8.
4. Y. Benjamin Vijayakumar,
Aged about 50 years,
S/o Late J. Yesudas,
R/at C/o Rajanna, 3rd Cross,
Tavaragere Near Computer Centre,
Mandya.
5. Y. Stanli Anand Raj,
Aged about 48 years,
S/o Late J. Yesudas,
R/at No.36, A.K. Colony,
CoxTown Jeevanahalli,
Bengaluru560 005.
Plaintiffs 3 to 5 are represented by
the GPA Holder, the 2nd Plaintiff
Ms. Violet Ponmani,
Aged about 43 years,
D/o Late J Yesudas,
R/at No.173/2,
Opposite Post Office,
CoxTown Jeevanahalli,
Bengaluru560 005.
[By Sri. N.T PremnathAdv.]
V/s
3 OS No. 26008/2013
Defendants: 1. Y. Arokia Raj,
Aged about 56 years,
S/o Late J. Yesudas,
2. Y. Anthony Joseph,
Aged about 43 years,
S/o Late J. Yesudas,
Both are R/at No.49,
ITC Colony,
CoxTown Jeevanahalli,
Bengaluru560 005.
3. Y Mary Violet,
Aged about 50 years,
W/o George,
R/at No.21/73, HBR Layout,
7th Main Road, 7th Cross,
1st Stage, 2nd Block,
Bengaluru560 043.
4. The Commissioner,
Karnataka Housing Board,
Bangalore Urban Coordinating Unit,
Cauvery Bhavan,
Bengaluru.
4 OS No. 26008/2013
5. Smt. Kavitha,
Age years,
R/at Portion of No.49/1,
ITC Colony,
CoxTown Jeevanahalli,
Bengaluru560 005.
6. Precila Joy's Kanmani,
D/o Late J. Yesudas,
Aged about 45 years,
R/at No.170, Muthappa Garden,
BDA Quarters Cox Town
Jeevanahalli,
Bengaluru5.
[By Sri. M.A George Adv for Defendant
Nos.1 to 3]
[By Sri.Hanumanthappa BAdv for
Defendant No.5]
[By Sri.D.BoregowdaAdv for Defendant
No.4]
(Defendant No.6Exparte)
5 OS No. 26008/2013
Date of Institution of the suit 02.07.2013
Nature of the (Suit or pronote,
suit for declaration and
Partition Suit
possession, suit for injunction,
etc.)
Date of the commencement of
17.03.2018
recording of the Evidence.
Date on which the Judgment
15.02.2020
was pronounced.
Year/s Month/s Day/s
Total duration 06 07 13
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiffs against the Defendants, claiming Partition and separate possession of 1/10th share of the schedule property and to put them in possession of their respective shares in the Suit Schedule Property. Further the Defendant Nos.1 and 2 are to be directed to pay the damages of Rs.25,000/ 6 OS No. 26008/2013 per month from the date of the suit till they are put into Possession of their respective shares, in the Suit Schedule Property.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiffs that, Plaintiff No.1 is the legally wedded wife of J. Yesudas and Plaintiff Nos.2 to 5 and Defendant No.6 have born to J. Yesudas through the Plaintiff No.1. J. Yesudas was working with ITC Ltd., Bengaluru. Plaintiff No.1 was also working with ITC Ltd., Bengaluru.
During the lifetime of J. Yesudas, he had developed an unlawful relationship with Mrs. Grace. The Defendant Nos.1 to 3 and one Mary Elizabeth have born to J. Yesudas through Mrs.Grace, by deceiving the 1st Plaintiff and her children. The relationship inbetween J. Yesudas and Mrs. Grace, was livein relationship and the said relationship was deprived off social obligation and socialization. Mrs. Grace died during the lifetime of J. Yesudas.7 OS No. 26008/2013
Since J. Yesudas was an employee of ITC Ltd., Karnataka Housing Board (KHB) allotted a quarters to J. Yesudas in the year 1965 and on 24.02.1997, KHB Authorities have executed lease cum sale agreement, inrespect of the property bearing No.49, ITC Colony, Cox Town, Jeevanahalli, Bengaluru05, in the name of J. Yesudas. The said property is the Suit Schedule Property in this suit. J. Yesudas resided in the said house till his death on 09.11.1999, even after the death of J. Yesudas, Plaintiffs resided in the aforesaid address for several years, due to want of accommodation and inconvenience, the Plaintiffs had to look out for an alternate accommodation in the same vicinity.
In the month of March 2012, it has come to the knowledge of the Plaintiffs that, the Defendants by creating certain documents and by suppression of facts, have got executed the Absolute Sale Deed infavour of the Defendant Nos.1 and 2, by approaching the Commissioner, KHB, Bengaluru, inrespect of the Suit 8 OS No. 26008/2013 Schedule Property. The Defendant No.3 and Mary Elizabeth have executed a Release Deed infavour of the Defendant Nos.1 and 2. The Defendant Nos.1 and 2 have sold western portion of the said property to the Defendant No.5, behind the back and without the knowledge of the Plaintiffs. The said transaction is not binding on the Plaintiffs. The Plaintiffs requested the Defendants to have Partition and to allot their respective shares, in the Suit Schedule Property, but the same was not heeded by the Defendant Nos.1 and 2. Looking to the attitude of the Defendants, the Plaintiffs got issued a legal notice to the Defendants, calling upon them not to alienate or create third party rights, inrespect of the Suit Schedule Property, till their rights are settled. The Plaintiffs further contend that, the Defendants have deprived off the right of the residence in the Suit Schedule Property and the Suit Schedule Property is enjoyed by the Defendants alone, the Plaintiffs are paying the rents, so the Plaintiffs are entitled to have damages to the tune of Rs.25,000/ per month, from the 9 OS No. 26008/2013 date of the suit, till they are put into Possession of their respective shares, in the Suit Schedule Property, from the Defendants.
Since the Plaintiffs were not allotted their respective shares in the Suit Schedule Property, they are constrained to file the present suit for the relief of Partition; to get declared the Sale Deed executed by the Defendant No.4 infavour of Defendant Nos.1 and 2 as Null and void; to get declare the Sale Deed executed by Defendant Nos.1 and 2 infavour of Defendant No.5; and to award damages to them to the tune of Rs.25,000/ per month.
3. Suit Summon were issued to the Defendants. Defendant Nos.1, 2 and 5 have appeared through their respective Counsels on 08.01.2014. The Defendant No.6 is placed 'Exparte' on 11.02.2014. Defendant Nos.1 and 2 have filed their Written Statement on 11.02.2014. Defendant No.4 has appeared through its Counsel on 10.07.2014. Suit summons inrespect of Defendant No.3 10 OS No. 26008/2013 was published in the English Daily Newspaper 'The Hindu' on 16.03.2015, due to her absence on 17.04.2015, she was placed 'Exparte'. Subsequently Defendant No.3 has appeared and filed her Written Statement on 01.04.2016. Defendant No.5 has filed her Written Statement on 08.01.2014.
4. The Defendant Nos.1 and 2 in their Written Statement has specifically denied the relationship of the Plaintiffs with them as well as with their father J. Yesudas. It is specifically contended by the said Defendants that, J. Yesudas never got married the Plaintiff No.1, but he had got married to their mother Mrs. Grace in the year 1954 and out of the said wedlock their father had two sons and two daughters the present Defendant Nos.1 to 3 and another daughter Mary Elizabeth.
It is specifically contended by the Defendants that, their father J. Yesudas was an employee of ITC Ltd., and he was allotted residential quarters in the year 11 OS No. 26008/2013 1946 and not in the year 1965, by the KHB on monthly rental basis, and the rents were deducted from his salary, till his services. J. Yesudas retired from his services on 31.12.1981. After his superannuation the rents of the quarters occupied by J. Yesudas were paid by the Defendant Nos.1 and 2 from their own funds and earnings till the death of J. Yesudas, who died on 09.11.1999. J. Yesudas till his death never purchased the Suit Schedule Property, as he did not have such capacity to purchase the same. So he did not leave behind him, any estate or the property, muchtheless the Suit Schedule Property, to be succeeded by the Plaintiffs or to claim share, as claimed by the Plaintiffs.
It is specifically contended that, it is the Defendant Nos.1 and 2 who have purchased the Suit Schedule Property on 08.08.2005, out of their own funds and earnings. On the day of purchase of the Suit Schedule Property, J. Yesudas was not alive to contribute any funds. So the Defendant Nos.1 and 2 are the absolute owners in Possession of the Suit Schedule Property.
12 OS No. 26008/2013They have sold portion of the Suit Schedule Property to the Defendant No.5 by virtue of the Registered Sale Deed dtd.17.08.2005. The Plaintiffs are not having any right, title or interest over the same.
Further the Defendant Nos.1 and 2 deny all the contents of the Suit Plaint, taken up by the Plaintiffs and prays to dismiss the suit of the Plaintiffs with heavy costs.
5. The Defendant No.3 has filed her Written Statement denying all the contents of the Suit Plaint and has taken up the similar contentions, as taken up by the Defendant Nos.1 and 2. Hence, prayed to dismiss the suit of the Plaintiffs.
6. The Defendant No.5 has filed her Written Statement denying the relationship of the Plaintiffs with that of J. Yesudasthe father of the Defendant Nos.1 to 3 and with the Defendant Nos.1 to 3. It is further contended that the Defendant Nos.1 and 2 have 13 OS No. 26008/2013 purchased the Suit Schedule Property and they being the absolute owners of the Suit Schedule Property have sold western portion of the Suit Schedule Property measuring 13 ½ feet X 25feet, in her favour by virtue of Registered Sale Deed dtd.17.08.2005 and the said property is bounded to the East: By eastern portion of the same house; to the West: By house No.36, to the North: By Road and to the South: House No.50. The Defendant No.5 after getting executed the Sale Deed, got her name mutated in the records of the said property, she is using the said property, she is paying electricity bills to the BESCOM authorities and water charges to the BWSSB authorities and also paying the taxes to the BBMP authorities. She is in Possession and Enjoyment of the said property. The Plaintiffs have no manner of right, title or interest over the said property, they are not entitled for any share in the said property. Hence, prayed to dismiss the suit of the Plaintiffs.
14 OS No. 26008/20137. On the basis of the above said pleadings, my learned predecessor in office has framed the following issues on 27.02.2017:
:ISSUES:
1. Whether the Plaintiffs prove that, Suit Schedule Property is their joint family property and it is remained without effecting Partition till today inbetween them?
2. Whether the Plaintiffs prove that, the Sale Deed executed by the 4th Defendant infavour of the Defendant Nos.1 and 2 is a illegal one and it is required to be cancelled and restore the same in the name of J. Yesudas?
3. Whether Plaintiffs prove that the Sale Deed dtd.17.08.2005 executed by the Defendants No.1 and 2 infavour of the 5th Defendant is illegal and not binding upon the Plaintiffs ?
4. Whether Plaintiffs prove that they are entitled for Partition and separate 15 OS No. 26008/2013 possession of 1/10th share in the Suit Schedule Property?
5. Whether the Plaintiffs prove that they are entitled for the damages of Rs.25,000/ per month from the Defendants No.1 and 2 as prayed for ?
6. What order or decree?
This Court on the basis of the contentions raised by the Defendant No.5 has framed additional Issue on 11.06.2019 as under:
ADDITIONAL ISSUE NO.1:
1. Whether the Defendant No.5 proves that, she is a bonafide purchaser of the portion of the Suit Schedule Property shown under the Sale Deed dtd.17.08.2005, for value and without notice?
8. The Plaintiffs inorder to prove their case, got examined Plaintiff No.2 as PW1 and have got marked initially 21documents as Ex.P1 to Ex.P21. PW1 was 16 OS No. 26008/2013 cross examined on behalf of the Defendant Nos.1 to 3 on 24.11.2018 and 20.12.2018.
Per contra, the Defendant Nos.1 to 3 got examined Defendant No.1 as DW1 and got marked 58documents as Ex.D1 to Ex.D58. DW.1 was cross examined on behalf of the Plaintiffs on 12.04.2019 and 11.06.2019. Ex.P.22 to Ex.P.31 were marked on confrontation to DW.1.
Defendant No.5 got herself examined as DW.2 and got marked 04documents as Ex.D59 to Ex.D62. DW.2 was cross examined on behalf of the Plaintiffs on 11.09.2019.
As per Orders on I.A.No.6/19 dtd.05.12.2019, PW.1 was recalled for her further examination in chief on production of 12documents, the said documents were marked as Ex.P.34 to Ex.P.45. PW.1 was cross examined on behalf of Defendant Nos.1 to 3 on 05.12.2019, the said cross examination was adopted by the Learned Counsel representing the Defendant No.5.
17 OS No. 26008/20139. Heard the Arguments of the Learned Counsels representing the Plaintiffs and the Defendant Nos.1 to 5, respectively. The Learned Counsel for the Plaintiffs have filed a memo alongwith 10decisions. The Learned Counsel for the Defendant No.5 has filed his written arguments on 23.01.2020. I have carefully gone through the written arguments furnished on behalf of the Defendant No.5 and the decisions, relied by the Learned Counsel for the Plaintiffs.
10. My findings on the above said issues are as under:
Issue No.1: In the Affirmative;
Issue No.2: In the Negative;
Issue No.3: Partly in the Affirmative;
Issue No.4: In the Affirmative;
Issue No.5: In the Negative;
Addl. Issue No.1: In the Affirmative;
Issue No.6: As per final orders,
for the following;
18 OS No. 26008/2013
:R E A S O N S:
11. ISSUE Nos.1 AND 2:
Since both these issues are interlinked with each other, so they have been taken for common discussion, inorder to avoid repetition, confusion and to have brevity in the discussion.
The Plaintiffs contend that Plaintiff No.1 is the wife of J. Yesudas and Plaintiff Nos.2 to 5 and Defendant No.6 are the children born to J. Yesudas through Plaintiff No.1. Further the Plaintiffs initially contend that, marriage inbetween the Plaintiff No.1 and J. Yesudas was performed on 25.10.1980. Subsequently, the Plaintiffs contend that marriage of the Plaintiff No.1 with J. Yesudas was performed in the year 1951, in the Mysore Police Station.
The Defendant Nos.1 to 3 and 5 denies that, Plaintiff No.1 is the wife of J. Yesudas and the relationship of J. Yesudas as father of the Plaintiff Nos.2 to 5 and Defendant No.6. Further the Defendant 19 OS No. 26008/2013 Nos.1 to 3 contends that, J. Yesudas had married their mother Mrs.Grace in the year 1954 and out of the said wedlock Defendant Nos.1 to 3 and Mary Elizabeth have born to them. Mrs. Grace died on 27.04.1976.
On careful perusal of the pleadings of both the parties, relationship of the Plaintiffs with that of J. Yesudas is denied by the Defendant Nos.1 to 3 and 5.
12. Section 112 of Indian Evidence Act, reads as under:
"112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten".
As well as, as per the decision of the Hon'ble High Court of Karnataka in the case of Muniga @ 20 OS No. 26008/2013 Abbaiah & Anr Vs Muniraja & Ors, reported in ILR 2000 Kar 3564, wherein it is held that, "When the paternity is disputed the party disputing has to discharge the burden Law presumes strongly infavour of legitimacy of offspring, as it is the birth that determines the status of a person."
Applying the above principles of law to the instant case at hand, initially the Plaintiffs have to prove that, Plaintiff No.1 is the wife of J. Yesudas and Plaintiff Nos.2 to 5 and Defendant No.6 have born to them, then it is for the Defendant Nos. 1 to 3 and 5 to disprove the relationship of J. Yesudas with the Plaintiffs.
13. The Plaintiffs have produced Ex.P2 Marriage certificate dtd.07.05.2012, issued by the Archdiocese of Bengaluru, kept at Our Lady of Fatima Church, Jalahalli, Bengaluru. As per this document, we are asked to believe that, Yesudas S/o Joseph and Anjilamma of Cox Town, is a bridegroom and Helen 21 OS No. 26008/2013 Susheela D/o Edward Rajgopal and Jane Soudramma of Cox Town, is the bride, marriage inbetween them have been preformed at Jalahalli on 25.10.1980, in the presence of witness by name Anthony Cruz and J.P Kanicka Mary, under Ministerialship of Fr. Lobo. Further this document, has come into existence after the death of Yesudas, i.e., after 09.11.1999.
Coming to the ocular evidence on this point more specifically cross examination of PW.1 at Page No.16, Para No.2, which read as under: "Marriage inbetween my father Yesudas and my mother Hellen Sushila was performed in the year 1980 at Fathima Church, Jalahalli. I have born on 14.04.1969. My brother - Samuel Rajkumar the 3rd plaintiff is born in the year 1956 as per Ex.P4. My another brother - Benjamin Vijayakumar - the 4th plaintiff is born in the year 1962 as per Ex.P5. My another brother
- Stanli Anand Raj- the 5th plaintiff is born in the year 1964 as per Ex.P6. My sister- Precila Joy's Kanmani- the 6th defendant is born on 22.03.1967 as per Ex.P7."
As per this evidence, Plaintiff No.2 admits that, marriage inbetween her father Yesudas and her mother 22 OS No. 26008/2013 Helan Susheela was performed in 1980 at Fathima Church, Jalahalli. She was born on 14.04.1969. Her brother Samuel Raj Plaintiff No.3 is born in the year 1956, as per Ex.P4, another brother Benjamin Vijayakumar Plaintiff No.4 is born in the year 1962, as per Ex.P5, another brother Stanli Anandaraj Plaintiff No.5 is born in the year 1964, as per Ex.P6 and her sister Precila Joy's Kanmani Defendant No.6 is born in 22.03.1967, as Ex.P7.
Further as per the cross examination of PW.1, at Page No.20, Para Nos.3 and 4, which reads as under: ReExam : My mother - plaintiff No.1 got married with my father J.Yesudas in the year 1951 and officially they got it registered in the Fathima church Jalahalli in the year 1980.
Cross examination on Re
Examination.
My parents got married in the year 1951 in Mysore Police Station. It was not a registered marriage. I have not produced any documents to show that my parents were got married in the year 1951. It is 23 OS No. 26008/2013 false to suggest that I am deposing falsely that, my parents have got married in Mysore P.S. in the year 1951.
As per this evidence, under reexamination of PW.1, she contends that, her mother - Plaintiff No.1 got married her father in the year 1951 and officially they got it registered in the Fathima Church, Jalahalli, in the year 1980.
Further Plaintiff No.2/ PW.1 contends that, her parents got married in the year 1951 in Mysore Police station. It was not a registered marriage and she has not produced any documents to show that her parents got married in the year 1951. But denies the suggestion made to her that she is deposing falsely that her parents have got married in Mysore Police Station in the year 1951.
The Plaintiffs have not produced any document to show that Plaintiff No.1 has got married J.Yesudas in the year 1951, more specifically, in Mysore Police Station, as subsequently contended by PW.1.
24 OS No. 26008/201314. The Plaintiffs have produced Baptism Certificates of Plaintiff Nos.2 to 5 and Defendant No.6 at Ex.P3 to Ex.P7. On perusal of the said documents, it is seen that, the name of their father is shown as Yesu Doss and the name of the mother is shown as Susheela. Further as per Ex.P.3, the date of birth of Plaintiff No.2 is shown as 14.04.1969; as per Ex.P.4 the date of birth of Plaintiff No.3 is shown as 27.05.1956; as per Ex.P.5 the date of birth of Plaintiff No.4 is shown as 19.10.1962; as per Ex.P.6the date of birth of Plaintiff No.5 is shown as 06.09.1964 and as per Ex.P.7the date of birth of Defendant No.6 is shown as 22.03.1967.
Though the said documents have issued by Parish Priest of Archdiocese of Bengaluru, those document will not fall within the ambit of Sec. 74 of Indian Evidence Act, to treat those documents as public documents, because the Church Authority, issuing the said documents, will not come within the ambit of Public Office.
25 OS No. 26008/201315. The Plaintiffs have produced Ration Card of the Plaintiff No.1 at Ex.P.8. As per the said document, it is seen that ration card is issued by the Government of Karnataka to the Plaintiff No.1 on 20.10.2001. And in the list of the family members, the name of "Yesu Doss"
is shown as the husband of the Plaintiff No.1. This document is a public document within the meaning of Sec. 74 of Evidence Act. The said card is issued after the death of Yesudas (Date of death 09.11.1999 as per Ex.D.58). The said ration card is a modified card.
Coming to the ocular evidence on this point, more specifically, cross examination of DW.1 at Page No.21, Para No.5, which reads as under:
"It is false to suggest that Ex.P8 is the Ration Card belonging to my father, wherein my father is shown as the husband of the 1st Plaintiff and the name of my father in it is shown as Y.Yesudoss, as the name of my father reflected in Ex.D58.".26 OS No. 26008/2013
As per this evidence, the Defendant No.1/DW.1 denies that the ration card at Ex.P.8 belongs to his father, wherein the name of his father is shown as the husband of the 1st Plaintiff and the name of his father is shown as Y. Yesu Doss, as the name of his father reflects in Ex.D.58.
16. The Plaintiffs have produced the Church Book issued by the Church Authorities at Ex.P.16. As per this document, Fatima Church has issued this Book to J. Yesu Doss and Susheela. As per this book, the details of the wife of J. Yesu Doss is shown as Susheela having born on 19.10.1935, having children as Samuel Rajkumar; Arokia Raj; Mary Elizabeth; Benjamin Vijayakumar; Mary Violet; Stainley Anadraj; Pricela Joyce Kanmani; Violet Kanmani; and Anthony Joseph. This document will not fall within the ambit of Section 74 of Evidence Act to call it as a Public document, as it is not issued by the Public Authority/Office, as declared by Law.
27 OS No. 26008/2013Coming to the ocular evidence on this point, more specifically, cross examination of DW.1 at Page No.19, Para No.6, which reads as under:
"It is true to suggest that as per the custom prevailing in our community, the book produced by the Plaintiff at Ex.P16 will be issued by the Jurisdictional Church Authorities, in the event of marriage."
As per this evidence, Defendant No.1/DW.1 pleads ignorance that Ex.P.16 is given by Ascension Church Authorities to his father.
As per the cross examination of DW.1 at Page No.20, Para No.5, which reads as under:
"It is false to suggest that the Church Authorities have issued Ex.P16 to my father and the 1st Plaintiff, treating them as husband and wife, as issued to the Defendants as per Ex.D49, Ex.D51 and Ex.D55."28 OS No. 26008/2013
As per this evidence, Defendant No.1/DW.1 denies that Ex.P.16 Church Book is issued to his father and the first Plaintiff, treating them as husband and wife, as issued to the Defendants as per Ex.D.49, Ex.D.51 and Ex.D.56.
The Plaintiffs have produced Ex.P.37Aadhar Card of Plaintiff No.2; Ex.P.38Identity Card issued by the Election Commission of India to Plaintiff No.2; Ex.P.39 Pan Card issued by the Income Tax Department to the Plaintiff No.2; Ex.P.40Passport issued by the Regional Passport Office, Bengaluru to the Plaintiff No.2. As per these documents, it is seen that, as per Ex.P.37(A) the year of birth of Plaintiff No.2 is shown as 1971; as per Ex.P.38 the date of birth of Plaintiff No.2 is shown as 14.04.1971; as per Ex.P.39 the date of birth of Plaintiff No.1 is shown as 14.04.1971; as per Ex.P.40 the date of birth of Plaintiff No.2 is shown as 14.04.1971. These documents though have come into existence after the death of Yesudas (Date of death 09.11.1999), but the 29 OS No. 26008/2013 said documents fall within the ambit of Sec.74 of the Indian Evidence Act, as the said documents are the Public documents issued, by the Public Authority, as required under the Law. As per these documents, the name of the father of the Plaintiff No.2 is shown as J. Yesudas as per Ex.P.37; J. Yesu Dass as per Ex.P.38; Joseph Yesudass as per Ex.P.39 and Joseph Yesu Doss as per Ex.P.40. Though as per Ex.P.3Baptism certificate pertaining to Plaintiff No.2, the date of birth of Plaintiff No.2, in the said certificate, is shown as 14.04.1969, as against the documents at Ex.P.38 to Ex.P.40, which shows the date of birth of Plaintiff No.2 as 14.04.1971.
Further the Plaintiffs have produced the Certificate issued by the Karnataka Secondary Education Examination Board to the Plaintiff No.5, at Ex.P.41. As per this document, the date of birth of Plaintiff No.5 is shown as 06.09.1963 as well as the name of father of the Plaintiff No.5 is shown as Doss J Y. This document also come within the ambit of Section 74 of the Indian 30 OS No. 26008/2013 Evidence Act, to call it as a Public document. The date of birth as seen in Ex.P.6 Baptism Certificate pertaining to Plaintiff No.5, tally's with the date of birth of Plaintiff No.5 shown in Ex.P.41.
Further the Plaintiffs have produced the Certificate issued by the Karnataka Secondary Education Examination Board to the Defendant No.6, at Ex.P.42. As per this document, the date of birth of Defendant No.6, is shown as 22.03.1967 as well as the name of father of the Defendant No.6 is shown as Yesudass. This document also come within the ambit of Section 74 of the Indian Evidence Act, to call it as a Public document. The date of birth as seen in Ex.P.7 Baptism Certificate pertaining to Defendant No.6, tally's with the date of birth of Defendant No.6, shown in Ex.P.42.
Further the Plaintiffs have produced Ex.P.43 Identity Card issued by the Election Commission of India to the Plaintiff No.3; Ex.P.44Identity Card issued by the Election Commission of India to the Plaintiff No.5; Ex.P.45Aadhar Card pertaining to Plaintiff No.4. As 31 OS No. 26008/2013 per these documents, it is seen that as per Ex.P.43, the date of birth of Plaintiff No.3 is shown as 27.05.1956, which tally's with the date of birth of Plaintiff No.3 shown in Ex.P.4Baptism Certificate. Further this document also speaks that the name of the father of the Plaintiff No.3 is shown as Yesu Dass. As per Ex.P.44 the date of birth of Plaintiff No.5 is shown as 06.09.1964, which tally's with the date of birth of Plaintiff No.5 shown in Ex.P.6Baptism Certificate. Further this document also speaks that the name of the father of the Plaintiff No.5 is shown as J. Yesu Dass. Further as per Ex.P.45the date of birth of Plaintiff No.4 is shown as 19.10.1967. But as per Ex.P.5Baptism Certificate pertaining to Plaintiff No.4, his date of birth is shown as 1962. Further this document also speaks that the name of the father of the Plaintiff No.4 is shown as Yesu Dass. Ex.P.43 to Ex.P.45 are the Public documents within the meaning of Section 74 of the Indian Evidence Act.
32 OS No. 26008/2013There is always a presumption withregard to the Public documents, found under Section 74 of the Indian Evidence Act.
17. The Defendant Nos. 1 to 3 have produced service Certificate of Defendant No.1 at Ex.D.28. As per this document, it is seen that the date of birth of Defendant No.1 is shown as 18.08.1956.
The Defendant Nos.1 to 3 have produced Statement of marks issued by the Chairman, 7 th Standard Common Examination Board, City District, Bengaluru02, pertaining to Defendant No.1 at Ex.D.31. As per this document, it is seen that the date of birth of Defendant No.1 is shown as 18.08.1956.
The Defendant Nos.1 to 3 have produced Baptism Certificate issued by the Parish Priest of St. Francis Xavier's Cathedral, pertaining to the Defendant No.1 at Ex.D.32. As per this document, it is seen that the date of birth of Defendant No.1 is shown as 18.08.1956.
33 OS No. 26008/2013The Defendant Nos.1 to 3 have produced Baptism Certificate issued by the Parish Priest of Archdiocese of Bengaluru, pertaining to the Defendant No.2 at Ex.D.49. As per this document, it is seen that the date of birth of Defendant No.2 is shown as 08.10.1969.
The Defendant Nos.1 to 3 have produced Transfer Certificate issued by the President, St. Mary's Educational Institute, inrespect of Defendant No.2 at Ex.D.50. As per this document, it is seen that the date of birth of Defendant No.2 is shown as 08.10.1969.
The Defendant Nos.1 to 3 have produced Aadhar Card of Defendant No.1 at Ex.D.52. As per this document, it is seen that the date of birth of Defendant No.1 is shown as 18.08.1956.
The Defendant Nos.1 to 3 have produced Aadhar Card of Defendant No.2 at Ex.D.53. As per this document, it is seen that the year of birth of Defendant No.2 is shown as 1969.
The Defendant Nos.1 to 3 have also produced the Church Book pertaining to Defendant No.1 issued by 34 OS No. 26008/2013 the Ascension Church at Ex.P.56. On perusal of the said document, the details of the family members of Defendant No.1 is mentioned in the said book.
The Defendant Nos.1 to 3 have also produced the Church Book pertaining to Defendant No.2 issued by the Ascension Church at Ex.P.57. On perusal of the said document, the details of the family members of Defendant No.2 is mentioned in the said book.
18. On careful perusal of Ex.P.16Church Book produced by the Plaintiff Ex.D.56 and Ex.D.57 Church Books produced by the Defendant Nos.1 to 3, it can be said that, there prevails a custom in the community of the Plaintiffs and the Defendants, wherein the jurisdictional Church Authorities will issue a book, called Church Book to the families of the members of the community, residing within the jurisdiction of the respective Church.
35 OS No. 26008/201319. On conjoint reading of Ex.P.3 to Ex.P.7, Ex.P.37 to Ex.P.42, on one hand and Ex.D.28, Ex.D.31, Ex.D.32, Ex.D.33, Ex.D.49, Ex.D.50, Ex.D.52, Ex.D.53, Ex.D.55 to Ex.D.57 with that of Ex.P.16Church Book, it can be cult out that the dateof birth of Plaintiff No.3 is 27.05.1956; Defendant No.1 is 18.08.1956; Plaintiff No.4 is 19.10.1962; Defendant No.3 is 10.07.1964; Plaintiff No.5 is 06.09.1964; Defendant No.6 is 22.03.1967; Plaintiff No.2 is 14.03.1969; and Defendant No.2 is 08.10.1969. By keeping these date of births in the mind and if Ex.P.16 is looked into, wherein it is shown as, the Plaintiff No.3 is the first child of Yesudas; Defendant No.1 is shown as 2 nd child; Mary Elizabeth is shown as the 3 rd child; Plaintiff No.4 is shown as 4th child; Defendant No.3 is shown as 5th child; Plaintiff No.5 is shown as the 6th child; Defendant No.6 is shown as the 7th child; Plaintiff No.2 is shown as the 8th child; and Defendant No.2 is shown as the 9th child of said Yesudas.
36 OS No. 26008/201320. Coming to the conduct of the parties, as to how the parties have acted, in their day to day life, is to be looked into, as there is no direct evidence, but the Plaintiffs contends that conduct of the parties will also form a link of chain, withregard to circumstantial evidence, to prove their relationship with J. Yesudas.
As per the ocular evidence more specifically, cross examination of DW.1 at Page No.12, Para No.1, which reads as under:
"Now an intimation for performance of Mass prayer on the even of death of my father Yesudas, shown to the witness and questioned, whether the photo appearing on the said document is it of your father. witness replies in the affirmative. On confrontation and admission the said document is marked as Ex.P22. I do not know the word "Wife" mentioned in the said Ex.P22, to whom does it referred. Witness volunteers that my mother Gracy has died on 27.04.1976 prior to the death of my father. It is false to suggest that the word "Wife" referred in Ex.P22, refers to the 1st Plaintiff and the word 37 OS No. 26008/2013 "Children" referred to the Plaintiffs and Defendants Nos. 1 to 3 and 6."
As per this evidence, Defendant No.1/DW.1 admits that the photo shown to him which is marked as Ex.P.22, is of his father. Further the Defendant No.1 admits that, there is a word wife appearing on the rare side of the said document Ex.P.22, but he denies that the said reference of wife, is to refer present Plaintiff No.1. The Defendant No.1 contends that his mother Grace has died on 27.04.1976, prior to the death of his father.
If his mother has died prior to the death of his father, then why the word "Wife" is used in Ex.P.22. If the entire wordings are perused, it refers to a living wife. Then who is the living wife of J. Yesudas as on the date of his death. It is not the case of the Defendants that, during the lifetime of J. Yesudas, he was having a lady, who was his wife, other than the Plaintiff No.1. The wordings in Ex.P.22 points out to a living lady, who must be the wife of J. Yesudas.
38 OS No. 26008/2013Further as per the cross examination of DW.1 at Page No.12, Para Nos.2 and 3, which read as under:
"Now a positive photograph is shown to the witness and questioned the male person seen in the photograph is your father J.Yesudas. Witness replies in the affirmative. On confrontation and admission the said document is marked as Ex.P23.
"A question is posed to the witness that in Ex.P23 a female person is shown alongwith your father, she is the Plaintiff No.1. Witness replies in the negative."
As per this evidence, on confrontation of the photograph Ex.P.23, the Defendant No.1 admits that the male person seen in the said photograph is his father, but denies that the lady sitting besides his father is the Plaintiff No.1.
As per the cross examination of DW.1 at Page No.13, Para Nos.1 to 5 and Page No.14, Para Nos.1 to 3, which read as under:
39 OS No. 26008/2013"Now 3 positive photographs are shown to the witness and questioned whether the said photographs pertains to your marriage. Witness replies in the affirmative. On confrontation and admission the said photographs are respectively marked as Ex.P24 to Ex.P26."
"In Ex.P24 a person standing, wearing a black coat is my father. In Ex.P26 a person standing besides me wearing a black coat is my father."
"Ex.P26 is shown to the witness and asked a standing lady, standing towards the left side corner is the 1st Plaintiff. Witness replies in the negative."
"Ex.P24 is shown to the witness and asked whether the two male persons standing adjacent below the stage are the present Plaintiff No.3 and 6.
Witness replies in the negative."40 OS No. 26008/2013
"Ex.P25 is shown to the witness and asked whether the lady standing besides him is the 1st Plaintiff, person standing besides her is the 5th Plaintiff and the person standing adjacent to his wife is 3rd Plaintiff. Witness replies negative."
Page No.14, Para Nos.1 to 3:
"Now a photo is shown to the witness and questioned whether this photo is clicked on the 1st birth ceremony of his son wherein he, his father and his son is seen.
Witness replies in the affirmative. On confrontation and admission the said photo is marked as Ex.P27."
"It is false to suggest that a female person standing infront of my father is the Plaintiff No.2."
"Ex.P27 photograph is clicked on the event of the 1st birth ceremony of my son which is 41 OS No. 26008/2013 solemnize in the suit schedule property."
As per this evidence, Defendant No.1 admits that the photos shown to him which is marked as Ex.P.24 to Ex.P.26 pertains to his marriage. Further Defendant No.1 admits that a person wearing a black coat, seen in Ex.P.24 and Ex.P.26 is his father (For identification the word 'F' shown in the green ink, to have easy reference). But the Defendant No.1 denies that, the lady standing towards the leftside corner in Ex.P.26 photograph (for identification, the word 'P.1' is shown in the greenink to have easy reference), is Plaintiff No.1.
Further the Defendant No.1 denies that the two persons standing below the stage seen in Ex.P.24 photograph, is Plaintiff Nos.3 and 6 (for identification, the word 'P.3 and P.6' is shown in the greenink, is to have easy reference).
Further the Defendant No.1 denies that the lady standing besides him in Ex.P.25photograph, is Plaintiff No.1 (for identification, the word 'P.1' is shown in the 42 OS No. 26008/2013 greenink, is to have easy reference). And further denies that, the person standing beside her is the 5 th Plaintiff and the person standing adjacent to his wife is the 3rd Plaintiff. (for identification, the word 'P.3 and P.5' is shown in the greenink, is to have easy reference).
The Defendant No.1 admits that, Ex.P.27 photograph is clicked in his house on the event of first birth ceremony of his son, wherein he, his father and his son are seen. But denies that a female person standing infront of his father is the Plaintiff No.2. (for identification, the word 'P.2' is shown in the greenink, is to have easy reference).
Further the Defendant No.1 admits that, in Ex.P.28photograph is clicked on the event of marriage ceremony of his sister Mary Elizabeth, wherein his sister Mary Elizabeth, his father, his brother Anthony Joseph Defendant No.2, (for identification, the word 'D.2' is shown in the greenink, is to have easy reference), his senior Uncle (for identification, the word 'SU' is shown in the greenink, is to have easy 43 OS No. 26008/2013 reference), his senior aunt (for identification, the word 'SA' is shown in the greenink, is to have easy reference) are seen. But denies that the lady standing towards the left side of his father is the Plaintiff No.1 (for identification, the word 'P.1' is shown in the greenink, is to have easy reference) and the male person sitting besides his brother is Plaintiff No.5 (for identification, the word 'P.5' is shown in the greenink, is to have easy reference) and male person sitting besides him is Plaintiff No.3. (for identification, the word 'P.3' is shown in the greenink, is to have easy reference).
Further the Defendant No.1 admits that, in Ex.P.29photograph, his father (for identification, the word 'F' is shown in the greenink, is to have easy reference); his senior Uncle (for identification, the word 'SU' is shown in the greenink, is to have easy reference); his senior aunt (for identification, the word 'SA' is shown in the greenink, is to have easy reference); himself (for identification, the word 'DW.1' is shown in the greenink, is to have easy reference); his 44 OS No. 26008/2013 wife (for identification, the word 'W' is shown in the greenink, is to have easy reference) and his son in yellow dress (for identification, the word 'S' is shown in the greenink, is to have easy reference), who has sat on the lap of his father; his brotherDefendant No.2 (for identification, the word 'D.2' is shown in the greenink, is to have easy reference); his sister Defendant No.3 (for identification, the word 'D.3' is shown in the greenink, is to have easy reference) are seen. But denies that the lady sitting towards the left side of his father is the Plaintiff No.1 (for identification, the word 'P.1' is shown in the greenink, is to have easy reference) and a female person standing behind his father is Plaintiff No.2 (for identification, the word 'P.2' is shown in the greenink, is to have easy reference).
Further the Defendant No.1 admits that, in Ex.P.30photograph, his father (for identification, the word 'F' is shown in the greenink, is to have easy reference); his two sisters (for identification, the word 'D.3' and 'sis' is shown in the greenink, is to have easy 45 OS No. 26008/2013 reference); his two sons (for identification, the word 'S.1' and 'S.2' is shown in the greenink, is to have easy reference) are seen. But denies that a female person standing towards the right side of his sister (D3) is the Plaintiff No.1 (for identification, the word 'P.1' is shown in the greenink, is to have easy reference) and a female person standing inbetween his father (F) and his sister (sis) is the Plaintiff No.2 (for identification, the word 'P.2' is shown in the greenink, is to have easy reference). Further the Defendant No.1 pleads ignorance that Ex.P.30photograph is clicked in the house of his sister Mary Elizabeth.
Further the Defendant No.1 admits that, in Ex.D.31photograph, his brother Anthony Joseph Defendant No.2 (for identification, the word 'D.2' is shown in the greenink, is to have easy reference); his two sisters (for identification, the word 'D.3' and 'sis' is shown in the greenink, is to have easy reference) are seen. But denies that a female person kissing his sister (D3) is the Plaintiff No.2 (for identification, the word 'P.2' 46 OS No. 26008/2013 is shown in the greenink, is to have easy reference). And also denies that Ex.D.31photograph is clicked in the Suit Schedule Property.
21. As per the above documentary and oral evidence, one thing is clear that, Yesudas, whom the Plaintiff No.1 and Plaintiff Nos.2 to 5 are claiming to be the husband and father, respectively, is the same person which the Defendant Nos.1 to 3 contends, as their father and who is shown as "F" in Ex.P.24 to Ex.P.30. Though, the said person is called by five names namely J. Yesudas; Yesudas; Yesu Doss; J.Y.Dass; and J.Y.Doss, but the person is the same.
22. On taking into consideration all the above documentary and ocular evidence, it can be said that, though the Plaintiffs have not lead direct evidence to prove their relationship with the said Yesudas, as the husband of the Plaintiff No.1 and the father of the Plaintiff Nos.2 to 5 and Defendant No.6, but on the 47 OS No. 26008/2013 basis of circumstantial evidence, as referred to supra, it can be said that on the basis of conduct of the parties, as required U/Sec.8 and 114 of the Indian Evidence Act, as well as, on the basis of the proof of relationship, as required U/Sec. 50 of Evidence Act, the Plaintiffs have discharged their initial burden that the Plaintiff Nos.2 to 5 and Defendant No.6 have born to the Plaintiff No.1, during subsistence and continuous of the marriage of the Plaintiff No.1 with said Yesudas, as required U/Sec. 112 of Evidence Act, to consider it as a conclusive proof. On discharge of the said initial burden by the Plaintiff, onus of proof lies on the Defendant Nos.1 to 3 and 5 to prove that, at the time of birth of Plaintiff Nos.2 to 5 and Defendant No.6 to the Plaintiff No.1, the Plaintiff No.1 had no assess to Yesudas. This aspect has not been proved by the Defendant Nos. 1 to 3 and 5 inorder to crack the conclusive proof available in law, withregard to the marriage inbetween the Plaintiff No.1 and Yesudas and legitimacy of Plaintiff Nos.2 to 5 and Defendant No.6, formed out of the wed 48 OS No. 26008/2013 lock of Plaintiff No.1 with Yesudas. As it is a well settled legal preposition that proof of nonassess between the parties to the marriage during the relevant period, is the only way to rebut that presumption, as has been held by the Privy Council in the case of Mohabbat Alikhan V/s Mohammed Ibrahim Khan; reported in AIR 1929 PC 135, which is also considered by the Hon'ble Apex Court in the case of Chilukuri Venkateswaralu V/s Chilukuri Venkatanarayana, reported in AIR 1954 SC 176; even the said principle is considered by the Hon'ble Apex Court in the case of Banarasi Das V/s Teeku Dutta, reported in 2005(4) SCC 449.
23. The Learned Counsel for the Plaintiffs has placed his reliance on the decision of the Hon'ble Apex Court, 49 OS No. 26008/2013
a) In the case of Bharatha Matha & Another V/s R.Vijaya Renganathan and Others; reported in 2010 (11) SCC 483; wherein it is held that:
"Presumption of legitimacy of child born during continuation of marriage can be displayed only by a strong preponderance of evidence, showing non assess between the parties to the marriage during the relevant period. The said presumption cannot be rebutted merely by a balance of probabilities."
b) In the case of Dhanulal & Others V/s Ganesh Ram and Another; reported in 2015 AIR SCW 2839; wherein it is held that:
"As per Sec. 50 of Evidence Act, Burden is on the person who asserts that there was no valid marriage. "
The said burden is impeachable in the presence of the evidence from the side of the person who asserts that, there was no valid marriage, that the lady was a concubine. In the present case, the Defendant Nos.1 to 3 and 5 have not led any evidence to attribute that the 50 OS No. 26008/2013 Plaintiff No.1 has led the wife of a concubine. But the Plaintiffs have placed unimpeachable evidence that, Plaintiff No.1 has led the life as a wife of Yesudas.
c) In the case of Smt. Parayankandiyal Iravath Kanapravan Kalliani Amma & Others V/s K. Devi and Others; reported in AIR 1996 SC 1963; wherein it is held that:
"In view of legal friction contained in Section 16, illegitimate children, for all practical purposes, including succession properties of their parents, have to be treated as legitimate."
This decision is relating to Section 16 of the Hindu Marriage Act, 1955. In the present case, the parties are Christians governed by Indian Succession Act.
d) In the case of Mohammed Salim (Dead) through Lrs., & Others V/s Sahamsuddeen (Dead) through Lrs., and Others; reported in (2019) 4 SCC 130; wherein it is held that:
51 OS No. 26008/2013"Registered maintained by statutory Authorities mentioning the names of the parents of the person, such document coming within the ambit of Section 74 of Indian Evidence Act, forming Public document is a fact relevant for determining parentage of that person." The said principle is relied and referred to supra in considering Ex.P.37 to Ex.P.42 documents, placed by the Plaintiffs.
e) In the case of Shakuntala Bai & Another V/s L.V.Kulkarni & Another; reported in 1989 SC 1359; wherein it is held that:
"A women who is been accepted by the community as a wife, of a person, proof of - she lived with such person as a husband and wife, until his death, presumption of her marriage with such person, cannot be eroded on the basis of mere preponderance of probabilities."
f) In the case of Shyam lal @ Kuldeep V/s Sanjiv Kumar & Others; reported in 2009 AIR SCW 5006; wherein it is held that:
52 OS No. 26008/2013"School Leaving Certificate of a person falls within the ambit of Section 74 of Evidence Act, it is admissible per se without formal proof. Which leads to presumption about legitimacy of such person born out of a wedlock to their parents as per Section 112 of Evidence Act. Inorder to impeach, such conclusive presumption, strong and conclusive evidence is necessary to prove non assess of each of the parents of such person, when such person begotten. "
The principle laid down in this case is considered, supra.
g) In the case of Tulsa & Others V/s Durghatiya & Others; reported in (2008) 4 SCC 520; wherein it is held that:
"Relationship of marriage inbetween two persons is a rebuttal presumption, which is required to be drawn from the natural events and conduct of the parties. Conduct of the parties include long cohabitation as husband and wife. Such presumption is available under the Law to retain the institution of marriage. Burden lies on the 53 OS No. 26008/2013 person who seeks to deprive such marital relationship."
The above enunciated principle is considered, supra.
h) In the case of Madan Mohan Singh and Others V/s Rajni Kant and Another; reported in 2010 AIR SCW 4932; wherein it is held that:
"Livein relationship between the parties of, continued for a longtime, there subsists presumption of marriage between them."
i) In the case of E.V.George V/s Annie Thomas And Another; reported in AIR 1991 KERALA 402; wherein it is held that:
"Payment of Shridhana at the time of marriage does not alienate daughters right to inherit parental property, as such right is not a contingent or vested right, but it is merely a spes successionis."54 OS No. 26008/2013
j) In the case of Jane Antony and Others V/s V.M. Siyath and Others; reported in 2009 ACJ 2272; wherein it is held that:
"Children born to a female who had co habited with a male person as husband and wife such children born are legitimate."
Indian Society believes in institution of marriage as a solemn. Since Plaintiff No.3 is born to Plaintiff No.1, the said event of birth of Plaintiff No.3, raises a presumption that, there was a marriage inbetween Plaintiff No.1 and Yesudas and the marriage of the Plaintiff No.1 and Yesudas, shown by the Plaintiffs as per Ex.P.2, might be a rectified marriage, inorder to bring the conjugal relationship of Plaintiff No.1 with Yesudas, as a sacrosanct.
Maternity is the fact and paternity is the faith. As a famous saying goes, child of a mother is the fact but child of a father is the faith. As well as another saying goes, father of the child is at the tip of finger of the mother.
55 OS No. 26008/2013Thus, the Plaintiffs have proved as per Sec. 112 of Indian Evidence Act, that Plaintiff No.1 is the wife of Yesudas and Plaintiff Nos.2 to 5 and Defendant No.6 are the children born to Yesudas, through the Plaintiff No.1.
24. Now, let us see, withregard to acquisition of the property, shown as the Suit Schedule Property.
The Plaintiffs contend that, the Suit Schedule Property is acquired by J. Yesudas, as the same was allotted to him by the Karnataka Housing Board, during his lifetime.
Per contra, the Defendant Nos.1 to 3 and 5contends that, the Defendant Nos.1 and 2 have acquired the ownership of the said property from the Defendant No.4, under the Registered Sale Deed dtd.08.08.2005.
25. The Plaintiffs have produced certified copy of the Lease cum Sale Deed dtd.24.02.1997 at Ex.P.9. On 56 OS No. 26008/2013 careful perusal of this document, it is seen that, the Karnataka Housing Board inorder to implement the orders of the Government of Karnataka bearing No.HUD5/IHS78, dtd.24.09.1979, the house built on site measuring East to West:12meters and North to South: 7.95 Meters, bearing No.49, in ITC Colony, Jeevanahalli, Bengaluru, within the boundaries East:By Road, West: By House No.36, North: By Road and South: By House No.50 shown as the Suit Schedule Property in this suit, is allotted to J. Yesudas, on Lease cum Sale basis by fixing the rent of Rs.10/ per year in advance. Further there is a recital in the said document that, the price of the house is fixed provisionally, as Rs.15,000/ and the Lessee/purchaser has already paid the initial deposit of Rs.4,400/.
The Plaintiffs have produced Encumbrance Certificate of the property bearing House No.49, for the period of eight years commencing from 01.04.1996 to 31.03.2004 at Ex.P.14. This document evidences about the transaction of Lease cum Sale agreement 57 OS No. 26008/2013 inbetween KHB and J. Yesudas taken place on 14.02.1997 and the said document is registered as Document No.3371, in the office of the Senior Sub Registrar, Indiranagar, Bengaluru.
Coming to the ocular evidence on this point, more specifically, cross examination of DW.1 at Page No.18, Para No.1 and 3, which read as under;
"It is true to suggest that as per Ex.P9 KHB authorities have executed lease cum sale agreement infavour of my father J.Yesudas, inrespect of the suit schedule property."
"It is true to suggest that suit schedule property is allotted to my father by KHB Authorities. It is true to suggest that from the day of allotment of the suit schedule property, my father is residing at property No.49 I.T.C. Colony."
As per this evidence, Defendant No.1 has admitted that as per Ex.P.9 the KHB authorities have executed Lease cum Sale Agreement infavour of his father J. Yesudas inrespect of the Suit Schedule Property. Further the Defendant No.1 has admitted that, the Suit Schedule Property is allotted to his father and since 58 OS No. 26008/2013 from the day of such allotment, his father is residing in the property bearing No.46, ITC Colony.
As per the above ocular and documentary evidence, it can be said that, the Suit Schedule Property was alloted to J. Yesudas by KHB, under Ex.P.9.
26. The Plaintiffs have produced affidavit executed by Y. Arokia Raj the Defendant No.1 and Y. Anthony Joseph the Defendant No.2 dtd.29.07.2005 at Ex.P.10. Para Nos.2 and 3 of the said documents read as under:
"ಅದಗ ನವ ಮಮಲಲಲಡ ವಳಸದಲ
ದ , ಮಮಲಲಲಡ ಐ ಟ ಸ ಕಲಲಮನಯಲ
ವಸವಗದದ
ರದವ 49 ನಮ ನಲಬರದ ಮನಯದ ನಮಮ ಗಳ ತಲದಯದ
ಶಶಮಯದತ ಜ.ಯಮಸದದಸ ರವರಗ ಕನರಟಕ ಗಗಹ
ಮಲಡಳಯಲದ ಮಲಜಲರಗ, ಸಸಧಮನತ ಪತ ತ
ಾಾಗಹಲ ಲಮಸ ಕಲ ಸಮಲ ಅಗಶಮಲಟದ
ನಲಮಲದಣಯಗರದತತದ. ಸದರ ಸಸತತನನ ದ ನಮಮ
ತಲದಯವರದ ಅವರ ಜಮವತವಧಯಲ
ಅನದಭವಸಕಲಲಡದ ಬಲದದ ನಲತರ ತರಮಖದ 911
1999 ರಲದದ ಮರಣ ಹಲಲದರದತತರ ಅಲಲದಮ ನಮಮ
59 OS No. 26008/2013
ತಯಯವರದ ಶಶಮಮತ ಗಶಮಸ ಯವರದ ಈ
ಹಲದಯಮ ತರಮಖದ 27041976 ರಲದದ ಮರಣ
ಹಲಲದರದತತರ. ತಲದಯ ಹಗಲ ತಯ ಇಬಬರಲ
ಮರಣ ಹಲಲದರದವ ಬಗಗ ಮರಣ ಸಮರರನ ಪತ ತ
ಇರದತತದ."
"ಈಗ ಮಮಲಲಲಡ ಸಸತತನ ಶದದದ ಕ ತಯಪತ ತವನದ
ನ
ನಮಮ ಗಳಬಬರ ಹಸರಗ ಜಲಟಯಗ ಮಡ
ಕಲಮಡಬಮಕಗ ಕಲಮರ, ಮನನ ಆಯದಕತರದ, ಕನರಟಕ
ಗಗಹ ಮಲಡಳ, ಬಲಗಳಲರದ ರವರಗ ಅಜರ
ಸಲಸರದತತಮವ. ಅಲಲದಮ ಮಮಲಲಲಡ ಕ ತಯಪತ ತವ
ನಮಮ ಗಳಬಬರ ಹಸರನಲ ಜಲಟಯಗ ಮಡಕಲಡದವ
ಬಗಗ ಯವದಮ ರಮತಯ ಅಡಡ ಅಭನಲತರ ಆಕಪಣಗಳದ
ಇಲಲವಲದದ ತಳಸ, ನಮಮ ಗಳ ಸಹಲಮದರಯದ ಶಶಮಮತ
ವವ. ಮಮರ ವವಯಲಟ ರವರದ ಒಲದದ ಪ ಶಮಣಪತ ತವನದ ನ ದಗಢಮಕರಸರದತತರ."
As per the recitals of Para Nos.2 and 3 of the said affidavit, the deponentsthe Defendant Nos.1 and 2 have deposed that property No.49, situate at ITC Colony, was allotted to their father and their father died on 09.11.1999 and their mother Smt. Grace died prior to 60 OS No. 26008/2013 their father, on 27.04.1976. On the death of their father, the allotted property is to be registered in their names, necessary application is submitted to the Commissioner, Karnataka Housing Board, Bengaluru and further they have submitted no objection of their sister Smt. Y. Mary Violet, as per her affidavit.
Further the Plaintiffs have produced the Indemnity Bond executed by the Defendant Nos.1 and 2 on 29.07.2005 at Ex.P.12. As per Para Nos.2 to 6 of the said document, it can be said that, they have got declared that they are the legal heirs of deceased purchaser who has executed Lease cum Sale Agreement to repay the loan of Rs.10,500/ to KHB, within a period of ten years and the said allottee has died on 09.11.1999 and the indemnifier is one of the legal heir to deceased allottee. Further it is declared that, the entire liabilities due to KHB has been discharged and the indemnifier has signified his intention to get transfer the property by executing the Sale Deed in his favour. The indemnifier further agrees to indemnify and 61 OS No. 26008/2013 undertakes to make good any or all losses or charges which the indemnity holder may incur in the consequences of the proposed transfer of property, infavour of the indemnifier.
The Defendant Nos.1 to 3 have produced Authorization Letter dtd.06.08.2005 at Ex.D.5. On close reading of the said document, it can be said that, House No.49, SIHS ITC Colony, Jeevanahalli, was allotted to J. Yesudas, since he died on 09.11.1999, his sons Y. Arokia Raj the Defendant No.1 and Y. Anthony Joseph the Defendant No.2 is authorized to get registered the Sale Deed, inrespect of the allotted property.
The Plaintiffs have produced certified copy of Registered Sale Deed dtd.08.08.2005 at Ex.P.13, the original of which is produced by the Defendant Nos.1 to 3 at Ex.D.1. As per this document, it is seen that KHB authorities have executed the Registered Sale Deed inrespect of the Suit Schedule Property, infavour of Defendant Nos.1 and 2, on receiving Rs.16,500/ from 62 OS No. 26008/2013 them towards full and final settlement of scheduled property in pursuance of the Government Order.
27. On the basis of the above oral and documentary evidence, it can be said that, the Suit Schedule Property was initially allotted to J. Yesudas and after his death, the Defendant Nos.1 and 2 have applied to the Defendant No.4 and on executing the affidavits/declaration and Indemnity Bond as per Ex.P.10 and Ex.P.12, respectively, the Defendant No.4 has issued Authorization letter on 06.08.2012 as per Ex.D.5 and has executed a Registered Sale Deed infavour of Defendant Nos.1 and 2 on 08.08.2005, as per Ex.P.13= Ex.D.1.
So, it is clear that, execution of the Sale Deed dtd.08.08.2005Ex.P.13=Ex.D.1, by Defendant No.4 infavour of Defendant Nos.1 and 2 is based on the affidavit/declaration submitted by the Defendant Nos.1 and 2 as per Ex.D.10 and Indemnity Bond executed by 63 OS No. 26008/2013 the Defendant Nos.1 and 2 infavour of Defendant No.4, as per Ex.D.12.
The execution of the Sale Deed dtd.08.08.2005 Ex.P.13=Ex.D.1, by the Defendant No.4 infavour of Defendant Nos.1 and 2 is in pursuance of the Lease cum Sale Agreement executed by the Defendant No.4 infavour of J. Yesudas on 24.02.1997 as per Ex.P.9. So the acquisition of the Suit Schedule Property is made by J. Yesudas, initially, in the consequences of which, Defendant No.4 has executed the Sale Deed dtd.08.08.2005Ex.P.13=Ex.D.1, infavour of Defendant Nos.1 and 2. Inotherwords, it can be said that, the acquisition of the Suit Schedule Property is not, afresh made by the Defendant Nos.1 and 2. So, the acquisition of the property is done by J. Yesudas, for which the Defendant No.4 has executed the Sale Deed infavour of the Defendant Nos.1 and 2, as the Legal Heirs of J. Yesudas and not in their independent capacity. Execution of Sale Deed dtd.08.08.2005 Ex.P.13=Ex.D.1, by Defendant No.4 infavour of 64 OS No. 26008/2013 Defendant Nos.1 and 2 is nothing but as a representative of J. Yesudas. So, acquisition of the Suit Schedule Property by the Defendant Nos.1 and 2 by virtue of Ex.P.13=Ex.D.1, will enure to the benefit of all the legal heirs of J. Yesudas. I find support to my above view, the anology of which is taken from the decision of the Hon'ble Apex Court in the case, reported in ILR 2000 Kar 4809 (SC), wherein it is held that, "When the eldest member makes an application for grant of occupancy rights it enures to the benefit of all". Thus, the Plaintiffs have proved that the Suit Schedule Property is allotted to J. Yesudasthe husband of the Plaintiff No.1 and the father of the Plaintiff Nos.2 to 5 and Defendant No.6, of which the Defendant No.4 has executed the Sale Deed infavour of Defendant Nos.1 and 2 as per Ex.P.13=Ex.D.1, as the representative of the said J. Yesudas. Having observed so, the Sale Deed dtd.08.08.2005Ex.P.13=Ex.D.1, executed by the Defendant No.4 infavour of Defendant 65 OS No. 26008/2013 Nos.1 and 2, on the strength of Ex.P.9Lease cum Sale Agreement; Ex.P.10Affidavit; Ex.P.12Indinity Bond; cannot be termed as illegal, but it can be termed as executed infavour of the Defendant Nos.1 and 2 as the representatives of J. Yesudas, which enures to the benefit of all the legal heris of J. Yesudas. Hence, I answer ISSUE NO.2 IN THE NEGATIVE.
28. The Plaintiffs contend that though the Suit Schedule Property is allotted to J. Yesudas, the said property is not Partitioned inbetween the heirs of J. Yesudas.
The Plaintiffs have issue a legal notice to the Defendants as per Ex.P.17, calling upon the Defendant Nos.1 to 3 to effect Partition in the Suit Schedule Property and not to create third party rights inrespect of the Suit Schedule Property, till their rights are settled. For which the Defendant Nos.1 to 3 have replied. The Defendants have contended that, since they have paid the amount to the Defendant No.4 and have got 66 OS No. 26008/2013 registered the Suit Schedule Property under Ex.D.1=Ex.P.13 Sale Deed dtd.08.08.2005, they have become the owners of the said property and have not considered the request of the Plaintiffs.
The sisters of the Defendant Nos.1 and 2 by name Mary Elizabeth and the present Defendant No.3 have executed Release Deed infavour of the Defendant Nos.1 and 2 on 19.09.2009. The transaction of release can be seen as per Ex.D.23 to Ex.D.25.
Coming to the ocular evidence on this point, more specifically cross examination of DW.1 at Page No. 24, Para No.2, which reads as under:
"It is true to suggest that we have got executed the release deed on 19.09.2009 from our sisters Mary Elizabeth and Mary Violet."
As per this evidence, Defendant No.1 admits that, he and the Defendant No.2 have got executed the Release Deed on 19.09.2009, from their sisters Mary Elizabeth and Mary Violet.
If the Suit Schedule Property was the self acquired property of Defendant Nos.1 and 2, then what 67 OS No. 26008/2013 was the necessity for them to get the Release Deed from their sisters.
Further the Defendant Nos.1 to 3 have failed to show that, there was a Partition inrespect of the Suit Schedule Property, in the absence of such proof, the Plaintiffs will be entitle for Partition of the Suit Schedule Property. Thus, the Plaintiffs have proved the Suit Schedule Property is the joint family property, as it was allotted to Yesudas by the Defendant No.4 under Ex.P.9Lease cum Sale Agreement dtd.24.02.1997 and the said property has remained unpartitioned inbetween the heirs of J. Yesudas. Hence, I am constrained to answer ISSUE NO.1 IN THE AFFIRMATIVE.
29. ISSUE NO.3 AND ADDITIONAL ISSUE NO.1:
Since both these issues are interlinked with each other, so they have been taken for common discussion, 68 OS No. 26008/2013 inorder to avoid repetition, confusion and to have brevity in the discussion.
The Defendant Nos.1 to 3 contends that, the Defendant Nos.1 and 2 on acquiring the property under Ex.D.1=Ex.P.13 Sale Deed dtd.08.08.2005, have sold the western portion of the Suit Schedule Property to the Defendant No.5, by virtue of the Registered Sale Deed.
The Defendant No.5 contends that the Defendant Nos.1 and 2 being the owners of the Suit Schedule Property has sold western portion of the Suit Schedule Property measuring East to West:13 ½ feet and North to South: 25feet to her, by virtue of the Registered Sale Deed dtd.17.08.2005.
The Defendant No.5 has produced the Registered Sale Deed dtd.17.08.2005 at Ex.D.62. As per this document, it is seen that, the Defendant Nos.1 and 2 have sold an area measuring East to West:13 ½ feet and North to South: 25feet to the Defendant No.5, for the valuable consideration of Rs.2,69,000/. Further 69 OS No. 26008/2013 this document also evidences that, the purchaser has been put into actual Possession of the purchased property on the day of its purchase.
The Defendant No.5 has also produced electricity bill at Ex.D.59 and Ex.D.60 and property tax receipt at Ex.D.61, inrespect of the purchased property.
Coming to the ocular evidence on this point, more specifically, cross examination of DW.2 at Page No. 11, Para No.3, which reads as under:
"I have purchased the western portion of the suit schedule property measuring 30½ feet x 25 feet from the Defendant Nos. 1 and 2. We have verified the records pertaining to the purchased property by us, to the effect that as to whom the said property was allotted by Karnataka Housing Board. The said property was allotted in the name of Defendant No.1, but I do not know the date of allotment of the said property to the Defendant No.1. I have not seen the allotment order / letter, for allotting the suit schedule property in the name of Defendant No.1 by Karnataka Housing Board. Karnataka Housing Board authorities have not executed any lease 70 OS No. 26008/2013 cum sale agreement infavour of Defendant No.1, inrespect of the suit schedule property."
As per this evidence, Defendant No.5 contends that she has purchased portion of the Suit Schedule Property measuring 30 ½ feet X 25feet from the Defendant Nos.1 and 2, on verification of the records pertaining to the purchased property, as the said property was allotted to the Defendant Nos.1 and 2 by the Karnataka Housing Board. She further contends that she has not seen the allotment letter, by virtue of which the Suit Schedule Property is allotted to the Defendant Nos.1 and 2 by the Karnataka Housing Board. And further contends that, KHB has not executed Lease cum Sale Agreement infavour of Defendant No.1 inrespect of the Suit Schedule Property.
As per the cross examination of DW.2 at Page No. 12, Para Nos.3 & 4, which reads as under:
"I have not come across, the lease cum sale agreement executed by Karnataka Housing Board Authorities infavour of J.Yesudas, pertaining to the suit schedule property Ex.P9, during my enquiry prior to 71 OS No. 26008/2013 the purchase of the western portion of the suit schedule property."
"So also I have not come across, the Sale Deed executed by Karnataka Housing Board Authorities infavour of Defendant Nos. 1 ands 2, pertaining to the suit schedule property Ex.P13, during my enquiry prior to the purchase of the western portion of the suit schedule property."
As per this evidence, the Defendant No.5 admits that, she has not come across the Lease cum Sale Agreement executed by the KHB authorities infavour of J. Yesudas pertaining to the Suit Schedule Property as per Ex.P.9 during her enquiry, prior to the purchase of the western portion of the Suit Schedule Property. Further she admits that, she has not come across the Sale Deed executed by the KHB authorities infavour of Defendant Nos.1 and 2, as per Ex.P.13, during her enquiry, prior to the purchase of the property.
Further as per the cross examination of DW.2 at Page No. 13, Para Nos.3 & 6, which reads as under:
"I do not know whether suit schedule property was original allotted to 72 OS No. 26008/2013 J.Yesudas by Karnataka Housing Board Authorities."
"It is false to suggest that being aware that, Defendant Nos. 1 and 2 are not the absolute owner of the western portion of the suit schedule property, I have purchase the same from them, to deprive the legitimate right of the Plaintiffs over it."
As per this evidence, the Defendant No.5 contends that, she is not aware that the Suit Schedule Property was originally allotted to J. Yesudas by KHB authorities. Further she denies that, she was having the knowledge at the time of purchase of the western portion of the Suit Schedule Property by her that the Defendant Nos.1 and 2 were not the owners of the Suit Schedule Property. And further denies that she has purchased the portion of the Suit Schedule Property to deprive the legitimate right of the Plaintiffs, over it.
As per the above documentary and ocular evidence, it can be said that, the Defendant No.5 has come into possession of the western portion of the Suit Schedule Property, measuring East to West: 13 ½ feet 73 OS No. 26008/2013 and North to South: 25feet under Ex.D.62 Sale Deed dtd.17.08.2005, from the Defendant Nos.1 and 2. The Defendant Nos.1 and 2 are the sharers in the Suit Schedule Property.
On the basis of above oral and documentary evidence, it can be said that, the Defendant No.5 is a bonafide purchaser for value and without notice.
The Plaintiffs are not the parties to the Sale Deed dtd.17.08.2005Ex.D.62, so the said Sale Deed will not be binding on the shares of the Plaintiffs. But taking into consideration that, the Defendant Nos.1 and 2 being the sharers in the Suit Schedule Property have executed the Sale Deed, infavour of Defendant No.5, so the said Sale Deed executed by Defendant Nos.1 and 2 infavour of Defendant No.5, cannot be termed as illegal. It is needless to mention that, the purchaser has proved that, she is in Possession of the purchased property under Ex.D.62, and the Sale Deed is acted over, so the possession of the Defendant No.5 is to be protected, at 74 OS No. 26008/2013 the time of allocating the shares of the respective sharers, under the Final Decree proceedings.
Having observed so, the Sale Deed executed by Defendant Nos.1 and 2 infavour of Defendant No.5 cannot be termed as illegal, but the same will not bind the Plaintiffs, over their respective shares in the Suit Schedule Property. Hence, I am constrained to answer ISSUE NO.3 PARTLY IN THE AFFIRMTIVE AND ADDL. ISSUE NO.1 IN THE AFFIRMATIVE.
30. ISSUE NO. 4:
The Plaintiffs and the Defendants are Christians, they are governed by the provisions of Indian Succession Act.
The Plaintiffs have proved that, the Suit Schedule Property belonged to J. Yesudas, the husband of the Plaintiff No.1 and the father of the Plaintiff Nos.2 to 5 and Defendant No.6 and the Defendant No.4 has executed the Registered Sale Deed dtd.08.08.2005, as per Ex.P.13=Ex.D.1, infavour of Defendant Nos.1 and 2, 75 OS No. 26008/2013 as the representatives of J. Yesudasthe original allottee.
It is an undisputed fact that, J. Yesudas has died on 09.11.1999. The Defendant Nos.1 to 3 have produced the death extract of J. Yesudas at Ex.D.58.
As on the date of death of Yesudas, he was survived by the Plaintiff No.1 as his wife, who has become a widow on his death; the Plaintiff Nos.2 to 5, Defendant No.6, Defendant Nos.1 to 3 and Mary Elizabeth, as his children.
As per Sec.33 of Indian Succession Act, 1925, the Plaintiff No.1 will be entitle to have 1/3rd share in the Suit Schedule Property and the Plaintiff Nos.2 to 5, Defendant No.1 to 3, Defendant No.6 and Mary Elizabeth will be entitled to have equal share in 2/3rd share in the Suit Schedule Property. So Plaintiff No.1 will have 1/3rd share in the Suit Schedule Property and Plaintiff Nos.2 to 5, Defendant No.6, Defendant Nos.1 to 3 and Mary Elizabeth will have 2/27th share each in 76 OS No. 26008/2013 the Suit Schedule Property, as per Sec. 33 R/W Sec. 37 of Indian Succession Act.
The Plaintiff No.1 has died during the pendency of this suit, as can be seen in the ocular evidence more specifically, cross examination of DW.1, Page No.11, Para Nos.1 and 2, which reads as under:
"Que: Whether you have decided not to admit deceased Plaintiff No.1 as your step mother and the 1st wife of J.Yesudas ?
Ans: I do not know who is the deceased Plaintiff No.1."
So, the share of the Plaintiff No.1 will devolve upon her legal heirsthe Plaintiff Nos.2 to 5 and Defendant No.6, as per Sec.37 of Indian Succession Act, 1925. So the Plaintiff Nos.2 to 5 and Defendant No.6 will get 1/15th share in the Suit Schedule Property, in the share of their mother. In total, Plaintiff Nos.2 to 5 and Defendant No.6 will get 19/135th share each, in the Suit Schedule Property. Hence, I answer ISSUE NO.4 IN THE AFFIRMATIVE.
77 OS No. 26008/201331. ISSUE NO.5:
The Plaintiffs contend that firstly, they have not utilized the Suit Schedule Property, but the same was utilized by the Defendant Nos.1 to 3. Secondly, they were residing in a rented premises by paying the rent, but the Defendant Nos.1 to 3 were residing in the Suit Schedule Property, so they are entitled for damages of Rs.25,000/ per month from the Defendant Nos.1 and 2, from the date of filing the suit till the date of awarding Partition, by metes and bonds.
The Plaintiffs have pleaded in Para No.5, Line Nos. 8 to 12 of the Suit Plaint as under:
"......Due to want of accommodation and for inconvenience Plaintiffs had to look out for alternative accommodation in the same vicinity, believing in good faith that the property will remain in joint and Plaintiffs have their legal right over the property in existence as the said property was/is in joint possession and enjoyment."78 OS No. 26008/2013
As per the said pleadings of the Plaintiff, the Plaintiffs themselves have contended that, due to insufficiency of the space in the Suit Schedule Property i.e., due to want of accommodation and inconvenience, the Plaintiffs had to lookout for alternative accommodation in the same vicinity and they are having the rights over the Suit Schedule Property, as they are in joint Possession and enjoyment of the same.
Under such circumstances, the Plaintiffs are not entitled to have any damages as claimed by them. Hence, I am constrained to answer ISSUE NO.5 IN THE NEGATIVE.
32. ISSUE NO.6:
The Plaintiffs have proved that, Plaintiff Nos.2 to 5 and Defendant No.6 are entitled to have 19/135 th share, each in the Suit Schedule Property.
Further the Defendant Nos.1 to 3 and Mary Elizabeth are entitled to have 2/27th share each, in the Suit Schedule Property.79 OS No. 26008/2013
The Defendant No.3 and her sister Mary Elizabeth have executed a Release Deed infavour of their brothers the Defendant Nos.1 and 2. Prior to execution of the Release Deed by the Defendant No.3 and Mary Elizabeth, the Defendant Nos.1 and 2 have sold western portion of the Suit Schedule Property to the Defendant No.5 under Ex.D.62Sale Deed dtd.17.08.2005. Since the Defendant No.5 is a bonafide purchaser for value and without notice, she is entitle for equitable Partition in the Suit Schedule Property, Inorder to have equitable Partition to the Defendant No.5, the shares allotted to the Defendant Nos.1 and 2 in the Suit Schedule Property is to be considered first, if the same falls short, withregard to the area under the Registered Sale Deed dtd.17.08.2005Ex.D.62, then the properties allotted to the Defendant No.3 and Mary Elizabeth, is to be taken into consideration, inorder to satisfy the area purchased by the Defendant No.5, since the Defendant No.3 and Mary Elizabeth have released their rights in the Suit Schedule Property under Release Deed 80 OS No. 26008/2013 dtd.19.09.2009, as per Sec. 43 of the Transfer of Property Act.
The Defendant No.5 is entitled to have equitable Partition in the Suit Schedule Property, as per Sec. 44 of the Transfer of Property Act. Provisions of Sec. 43 and 44 of Transfer of Property Act, will have to be taken noteoff, while passing Final Decree Proceedings.
Hence, I proceed to pass the following:
ORDER The suit of the Plaintiffs is Decreed.
It is declared that the Plaintiff Nos.2 to 5 and Defendant No.6, are entitle to have 19/135th share, each, in the Suit Schedule Property.
The Defendant Nos.1 to 3 and their sister Mary Elizabeth, are entitle to have 2/27th share each, in the Suit Schedule Property.81 OS No. 26008/2013
The Defendant No.5 is entitled to have equitable Partition to the extent of an area purchased by her, under the Sale Deed dtd.17.08.2005Ex.D.62 or to the extent of the area allotted to the Defendant Nos.1 to 3 and Mary Elizabeth, whichever is smaller.
Partition be affected as per the Partition Act.
Looking to the pecuniary facts and circumstances of the case, parties to bear their own costs.
Draw Preliminary Decree
accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 15th day of February, 2020) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 82 OS No. 26008/2013 :Schedule Property:
All that piece and parcel of the schedule property bearing No.49 SIHS, ITC Colony, Jeevanahalli, Bangalore560 005 measuring 702.5 square feet out of the total measuring area East to West:1200 meters and North to South:7.95 meters with all rights and appurtenances whatsoever and bounded on: East by: Road.
West by: Portion of the property sold to 5th Defendant.
North by: Road.
South by: House No.50.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 83 OS No. 26008/2013 ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1: Violet Ponmani.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS: Ex.P1: Notarized copy of GPA. Ex.P2: Marriage Certificate. Ex.P3: Certificate of Baptism. Ex.P4 to 7: Certificates of Baptism. Ex.P8: Ration Card.
Ex.P9: certified copy of Lease cum Sale Agreement. Ex.P10 and 11: Genealogical trees. Ex.P12: Indemnity Bond (Allotment). Ex.P13: Certified copy of Sale Deed dtd.08.05.2005. Ex.P14 &15: Encumbrance certificates. Ex.P16: Family document.
Ex.P16(A): Translated copy. Ex.P17: Legal Notice.
Ex.P18 to 20: Postal acknowledgements. Ex.P21 & 21(A): Legal notice and postal cover. Ex.P22 to Ex.P33. Family photos (marked on confrontation) Ex.P34: Indian Telephone Industries Ltd., Ex.P35: Receipt issued by the ITI Christian Employees Welfare Association.
Ex.P36: Life membership Certificate. Ex.P37: Aadhar card of PW.1.84 OS No. 26008/2013
Ex.P38: Identity card of PW.1. Ex.P39: PAN Card.
Ex.P40: Passport issued by the Passport authorities of India.
Ex.P41: Certificate issued by the KEEB to Stanley Anand Raj.
Ex.P42: Certificate issued by the KEEB to Priscilla Jayce. Ex.P43: Identity card issued by the Election Commission of India to Samule.
Ex.P44: Identity card issued by the Election Commission of India to Y. Stanely Anand Raj. Ex.P45: Aadhar card of Bejamin Vijay Kumar.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS: DW.1: Y. Arokiaraj. DW.2: Smt. Kavitha.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D1: Registered Sale Deed dtd.08.08.2005. Ex.D2: Pay slip.
Ex.D3: Receipt.
Ex.D4: Endorsement issued by BBMP. Ex.D5: Allotment Certificate. Ex.D6: Receipt.
Ex.D7 & 8: Two acknowledgements. Ex.D9 & 10: Two receipts.85 OS No. 26008/2013
Ex.D11: Acknowledgement.
Ex.D12: Property tax receipt. Ex.D13: Acknowledgement.
Ex.D14: Property tax receipt. Ex.D15: Acknowledgement.
Ex.D16: Property tax receipt. Ex.D17: Katha extract.
Ex.D18 & 19: Two katha Certificates. Ex.D20: Katha extract.
Ex.D21 & 22: Two katha Certificates. Ex.D23 to 25: Three Encumbrance certificates. Ex.D26: Employment particulars of members of family card.
Ex.D27: Ration card.
Ex.D28: Service Certificate. Ex.D29: Notice under FormL. Ex.D30: Membership particular card. Ex.D31: Statement of marks issued by the 7th standard common examination board. Ex.D32: Extract from the register of Baptisms. Ex.D33: Extract of registrar of marriages. Ex.D34: Sanction letter issued by the Bengaluru Water Supply and Sewerage Board. Ex.D35: Initial deposit receipt. Ex.D36 to 41: Six demand notices. Ex.D42: Official memorandum issued by the BESCOM.
Ex.D43 to 48: Test Certificate alongwith receipt, meter purchase receipt, sanction order and two receipts issued by the BESCOM.86 OS No. 26008/2013
Ex.D49: Certificate of Baptism. Ex.D50: Transfer Certificate. Ex.D51: Marriage Certificate. Ex.D52 & 53: Two aadhar cards. Ex.D54: Baptism Certificate. Ex.D56 & 57: Two family record books. Ex.D58: Death Certificate of J. Yesudas. Ex.D59 & 60: Electricity bill and water bill. Ex.D61: Property tax receipt for the year 201920. Ex.D62: Original register Sale Deed dtd.17.08.2005.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)