Bangalore District Court
Poongodu vs Hamsa on 9 July, 2024
1
O.S.No.7424/2007
KABC010158952007
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XLIV ADDL. CITY CIVIL JUDGE,
AT BENGALURU (CCH-45)
Dated this the 9th day of July, 2024
PRESENT: SRI. DODDEGOWDA.K, B.A., L.L.B.,
XLIV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU.
O.S.No.7424/2007
PLAINTIFFS : 1. Smt. Poongodi,
W/o Late Purushotham,
Aged about 34 years,
2. Sri. Prashanth,
S/o Late Purushotham,
Aged about 13 years,
Since minor, representated by the
1st plaintiff, the Mother and the
natural guardian.
Both plaintiff No.1 and 2 are
residing at No.511, 4th Cross,
6th Main, M.S.R. Nagar,
2
O.S.No.7424/2007
Bengaluru-560 054.
(By Sri.P.N., Advocate)
VS.
DEFENDANTS : 1. Smt. Hamsa,
W/o Late Ganeshan,
Aged about 60 years
R/at No.106, 6th Cross,
M.S.R. Nagar, Bengaluru-560 054.
(D1 died on 02.04.2023, the
deceased husband of plaintiff and
the defendant No.2 and 3 are the
LRs of D1)
2. Sri. Vijayakumar,
S/o Late Ganesh,
Aged about 38 years,
R/at D. No.22 and Main,
2nd Cross, M.S.R.Nagar,
Bengaluru-560 054.
3. Smt. Selvi
W/o Anand,
Aged about 34 years,
R/at No.106, 6th Cross,
M.S.R. Nagar, Bengaluru-560 054.
(By D1 & D3-B.R., D2-G.N.K.,
Advocate)
Date of Institution of the : 01.08.2007
suit
Nature of the suit : Suit for Partition and
Separate Possession
Date of commencement of :
recording of the evidence 08.01.2014
3
O.S.No.7424/2007
Date on which the :
Judgment was pronounced 09-07-2024
Total Duration Years Months Days
16 11 08
(DODDEGOWDA.K)
XLIV ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This suit is filed for the relief of partition of the suit schedule properties into 4 equal shares and separate possession of the suit schedule properties.
2. The case of the plaintiff in nutshell is as under:-
One Ganesh had married to Hamsa and from their wedlock, they gave birth to three children namely G.Vijayakumar(D-2), G.Purshotham (Dead), and G.Selvi (D-3). The said Ganesh was died on 1.8.2006 leaving behind the plaintiffs and defendants herein as legal representatives. Plaintiffs are wife and sons of deceased 4 O.S.No.7424/2007 Purushotham, who died on 22.4.2007. The said Ganesh had left behind various schedule properties, which are more fully described in the schedule and hereinafter called the suit schedule properties. Subsequent, to his death, the husband of the plaintiff No.1, his mother, brother and sister were in possession of the schedule properties. The suit schedule properties are the joint family properties of the plaintiffs and the defendants and the plaintiffs are entitled to 1/4th share in each of the schedule properties. The husband of the plaintiff No.1 had died leaving behind his wife, the 1 st plaintiff and son, the 2nd plaintiff herein as legal heirs. The plaintiffs have demanded partition by metes and bounds but went in vain. The cause of action for the suit arose on 1.8.2006, when the Ganesh died and further when the plaintiff demanded partition and subsequently when the husband of the 1st plaintiff died on 22.4.2007 within the jurisdiction of this Court. Hence, the present suit for the 5 O.S.No.7424/2007 relief of partition and separate portion of suit schedule properties.
3. In pursuance of the institution of the suit, summons was issued to the defendants, who appeared through their counsel and filed detailed written statement as under:
The defendant No.1 and 3 have filed their written statement contending that the suit filed by the plaintiffs are not maintainable against the Schedule 'C' Property either in law or on facts and liable to be dismissed in limine. The plaintiffs have not approached the court with clean hands and they are guilty of suppressio vari and suggestio falsi and on this score itself, the suit is liable to be dismissed. The averments made in Para-2 of the plaint is partially true. It is true that, the father in law of the 1st Plaintiff had died on 01-08-2006 leaving behind his wife Hamsa, sons Vijay Kumar, Purushotham i.e., husband of the 1st Plaintiff and daughter G.Selvi as his 6 O.S.No.7424/2007 legal heirs to succeed to his estate. It is partially true that the said Late Ganesh had left behind some properties, which are described in the schedule of the plaint. It is partially true that after the death of Ganesh, the defendant No.1 to 3 were in possession of the schedule properties and defendant No.2 is living in suit 'C' schedule property. The plaintiff and her husband Purushotham lived in the property mentioned in the cause title of the plaint. Defendant No.3 is living in schedule 'D' property from the year 1996 and is looking after defendant No.1. It is absolutely false to state that the husband of the plaintiff No.1 had asked his mother and brother to bifurcate the schedule properties and give his due share of 1/4 of each property. It is false to state that the mother of the Plaintiff's husband had postponing the partition on some pretext or the other. It is true that the Plaintiff's husband was hailing, but it is false to state that he was demanding for partition and possession of 7 O.S.No.7424/2007 his 1/4th share in each of the schedule property. It is further false to state that before he could get his share, the plaintiff's husband G. Purushotham, died prematurely on 22.04.2007, though the date of his death is true.
4. It is specifically denied that the said Ganesh had left behind various schedule Properties, which are described in the Schedule "A" to "F" of the Plaint. Schedule "A" stands in the name of Late Ganesh and it is available for partition among all the surviving legal heirs. Schedule 'B' is the self acquired property of Late Ganesh and he had authorized his wife through a General Power of Attorney dated 28-01-2000 to sell the same for meeting medical expenses, and to repay loans. Accordingly, the property was sold by the Defendant No.1 to one M.Krishnappa through a registered sale deed dated 07-02-2007. Out of the sale proceeds of the sale of the property, a sum of Rs.66,400/- received was fully 8 O.S.No.7424/2007 utilized to spend expenses and to repay the loans on medical expenses, and to repay borrowed loans. Even then the money was insufficient to meet the other recurring family expenses, hence the Defendant No.3 and her husband who were working looked after all the family expenses and other recurring medical expenses of family. Thus the whole burden of maintaining the family and the age old mother fell on the responsibility of the Third Defendant. The Defendant No.2 had totally neglected his age old parents i.e., Defendant No.1 and Late Ganesh right from the year 1996 when they were forced to live with Defendant No.3 in Schedule "D" Property. After the death of Late Ganesh Defendant No.2 threatened Defendant No.1 and by force took signatures on some blank stamp papers in the absence of other family members telling that he wants the documents to give it to K.E.B. (now BESCOM), he also took away forcibly the Original General Power Attorney dated 26-7-86 given to 9 O.S.No.7424/2007 Defendant No.1 by Late Sampangiramiah of the Schedule 'C' property which is pending for partition. Even now the Schedule 'D' property of the plaint is in the name of Defendant No.1 and is due for partition. Schedule 'C' property's rights, possession and ownership were given to Defendant No.1 by one Mr.Sampangiramaiah through a General Power of Attorney dated 26-7-1986 to deal with it in any manner, she likes including the right to sell the property etc., and till today the Defendant No.1 is the absolute owner having full rights over the property. Late Ganesh had constructed ground floor and First Floor and was living in the house along with Defendant No.1 to 3 in Schedule 'C' Property. In the year 1996 Defendant No.1 and Late Ganesh were forced to live with Defendant No.3 at Schedule 'D' Property. Defendant No.2 forcibly started living in Schedule 'C' Property without any rights over Property. Thus defendant No.1 is still the absolute owner of schedule 'C' property and it is due for partition among 10 O.S.No.7424/2007 the Defendants. In the year 1996 Late Ganesh purchased the property where the Plaintiff is now residing in the address mentioned in the cause title of this plaint. The property was registered in the name of Late Purushotham i.e.. the husband of 1st Plaintiff and a sum of Rs.3,00,000/- was paid as consideration amount for purchasing it. Thus Late Purushotham got his due share, consequently, the plaintiff now cannot claim any further share in the properties left by Late Ganesh.
5. The Defendant No.1 and 3 submits that Schedule "D" property mentioned in the plaint is the self acquired property of Late Ganesh and no one has any right over this Schedule Property. Late Ganesh on his own will had Gifted the Schedule 'D' property to the defendant No.3 through a Registered Gift Deed dated 14- 6-2006, Registered on 16-06-06 at Sub-Registrar office, Bangalore. The above said Gift of the Schedule 'D' Property was made to Defendant No.3 taking into 11 O.S.No.7424/2007 consideration the service that was rendered by Defendant No.3 to Late Ganesh and his wife Defendant No.1. The other members of the family, for instance defendant No.2 never looked after the family and maintenance and the deceased Purushotam was not in a condition to look after his parents since he himself was ailing with disease, he was well taken care of by Late Ganesh, the Defendant No.1 and the Defendant No.3 until his death. Thus Schedule 'D' Property which was the self-acquired property of Late Ganesh was gifted to Defendant No.3 without any bickerings in the family and was not objected by any of the family members. As per the understandings and settlements arrived between the family members, Late Ganesh had bequeathed the Schedule 'D' Property through a Will and GPA in which all the family members have signed it as witness to the Will and GPA, i.e., the 1st Defendant, Plaintiff's husband Late G. Purushotaman and 2nd Defendant. 12
O.S.No.7424/2007
6. The Plaintiff has deliberately not included the property bearing No.511, situated at 4 th Cross, M.S.R.Nagar, Bangalore, which property was purchased by Late Ganesh and was registered in the name of Late Purushotam and on his death the Plaintiff continued to live in possession of the Property and is living there till now. The Plaintiff had thus obtained her due share in the property but now is eyeing at other properties in order to make wrongful gain and to knock-off the properties from the Defendant No.1 and 3 who are the true owners of the properties mentioned in Schedule 'A', 'C' and 'D' of the plaint. Considering the age of Defendant No.1 and mental tortures she is undergoing the defendant No.1 is willing to give away by way of partition Schedule 'A' Property which is in the name of Late Ganesh to the Plaintiff and the Defendants. Thus 1/4th share in Schedule 'A' Property is to be given to Plaintiff, Defendant No.1, 2 and 3. Further since Defendant No.2 13 O.S.No.7424/2007 is already in possession of Schedule 'C' property she is willing to give away by way of partition Schedule 'C' Property to Defendant No.2 provided he pays a monthly maintenance of Rs.10,000/- or a one time payment of Rs. 10,00,000/-. It is pertinent to note here that Late Ganesh had during his life time constructed the Ground floor and First floor of Schedule 'C' Property and Defendant No.1 is getting monthly rents from his tenants totally a Sum Rs.50,000/- from all the houses. Hence, it is affordable for Defendant No.2 to pay a monthly maintenance of Rs.10,000/- or a sum of Rs. 10,00,000/- as one time payment for maintenance of Defendant No.1.
7. The Defendant No.1 and 3 submits that the averments made in para 3 of the plaint is false that the said deceased G.Purushotham, the husband of the 1 st Plaintiff had died leaving behind his wife, the 1 st Plaintiff and a son the 2nd Plaintiff herein as legal heirs. It is further false to state that after his death, the plaintiffs 14 O.S.No.7424/2007 have demanded partition with regard to the Schedule Properties with the Defendants, but the Defendants have not agreed to make partition. It is relevant to mention here that the 1st Plaintiff had left her ailing husband long back. The plaintiff never lived with her husband as a dutiful wife. The family is still in debt due to the expenditure made on Late Purushotham. When such being the state of affairs the Plaintiff has no right of whatsoever manner much less 1/4th share as stated in the plaint on the suit Schedule Properties mentioned in the Schedule 'A' to 'F'.
8. The Defendants submit that the Plaintiff who was well aware of the death of her husband did not attend to the funeral and later did not even attend to the other rituals that took place after his death. She had totally considered her husband as a stranger and never considered him as her husband. Just all of a sudden for the sake of this property she has now started singing the 15 O.S.No.7424/2007 song of husband and wife relationships. The Genealogical tree mentioned in para 4 of the plaint is partially true to the effect that the G.Vijayakumar, G.Purushotham and G.Selvi are legal heirs of Late Ganesh and his wife Smt Hamsa (the Defendant No.1) in the plaint. But it is false to state that the 1st Plaintiff still can claim the right as wife of the deceased G.Purushotham. The 1 st Plaintiff not only applied for divorce but had been living separately, totally neglecting her husband when her service was utmostly needed by her towards her husband as true wife during his last stages of life. The Defendant No.1 and 3 submit that the valuation arrived by the Plaintiff is not correct and the fee paid by the Plaintiff is insufficient. On these grounds urged in the written statement, the defendant No.1 and 3 prays to dismiss the suit.
9. The defendant No.2 has filed written statement almost denying the averments of the plaint as under:
The suit of the plaintiff is not maintainable against 16 O.S.No.7424/2007 the Schedule 'C' Property either in law or on facts, hence the relief sought against the said property is not sustainable and the same is liable to be dismissed in limine. There is no estate Schedule 'C' Property left by the deceased Ganesh for division and as such the suit is not sustainable in law. The plaintiff cannot have any right over the property as detailed in the plaint schedule property and therefore, the suit is liable to be dismissed at the threshold.
10. The averments made in Para-2 of the plaint that Ganesh, the father-in law of the 1 st Plaintiff died on 1-8-2006 leaving behind his wife Hamsa, sons Vijaykumar, Purusthotham, the husband of the 1 st Plaintiff and daughter as his legal heirs to succeed to his estate are true and further averments that the said Ganesh, had left behind him various schedule properties which are more fully described in the plaint schedule are also correct, but not the Schedule 'C Property and further 17 O.S.No.7424/2007 averments that after his death, the husband of the plaintiff, his mother, brother and sister were in possession of the schedule properties are all false and baseless. The further averments of the plaint that the husband of the plaintiff had asked his mother and brother to bifurcate the schedule properties and give his due share of 1/4th of each property and further the mother of the Plaintiff's husband had postponing the partition on some pretext are all false and baseless and further it is true that the Plaintiff husband G. Purushotham died prematurely on 22.04.2007. It is the fact that the plaintiff husband, had no avocation and he had parted with the joint family and accordingly, this defendants and his deceased brother were stayed away from the 1st Defendant and the Defendant had taken a shelter with the 3rd defendant and managed all the properties left by the deceased Ganesh as detailed in the Schedule i.e., A, B, D and E Properties which are liable to 18 O.S.No.7424/2007 be partitioned among all the legal heirs.
11. The averments made in Para-3 of the plaint that the deceased G Purushotham, the husband of the 1 st plaintiff had died leaving behind his wife, the 1 st plaintiff and a son, the 2nd plaintiff herein as legal heirs and further after his death, the plaintiffs have demanded partition, demanding the due share of her deceased husband with regard to the schedule properties with the defendants, but the defendants have not agreed to make partition are denied as false.
12. This defendant No.2 has further submits that, he being the absolute owner in possession of the property bearing No.23, new No.30, situated at M.S.R. Nagar, Bangalore, measuring East to West 40 Feet and North to South 33 Feet, has been in peaceful possession and enjoyment of the same ever since from the date of his purchase and this defendant got the power of attorney in his name from the original owner Mr.Sampangiramaiah 19 O.S.No.7424/2007 and by exercising his right under the General Power of Attorney, he has created the sale deed in favour of his wife Smt. V. Bharathi and the Property now in possession and enjoyment of the 2nd defendant is consisting of ground, first and second floor and having assessed to BBMP M.S.R Nagar, Bangalore and therefore, the Plaintiff cannot claim any right, title or interest over the property of this defendant i.e., Schedule 'C' Property and as such, the Plaintiff is not entitled to claim any share in respect of the Schedule C Property. In fact, the plaintiff's husband during his life time had executed a settlement agreement in favour of the 1st defendant and therefore, she is not entitled to claim any right even otherwise, his legal heirs stopped from claiming any right title over the schedule C Property and therefore the plaintiff is not entitled to the property.
13. It is further submitted that, Schedule C' Property was owned and possessed by the 1 st Defendant, 20 O.S.No.7424/2007 who is none other than the mother of this defendant and the mother-in-law of the Plaintiff and the 1 st Defendant had sold the Schedule 'C' Property in favour of this defendant for a total sale consideration of Rs.3,00,000/- under a document Dated 28.02.1996 and the same is within the knowledge of the deceased Purushotham, who is the husband of the Plaintiff. It is further submitted that the deceased Purushotham by receiving a sum of Rs 3,00,000/- from the 1st Defendant, has taken his share and separated from the joint family and therefore, the plaintiff having known all these facts, cannot file any suit for the partition of the Schedule C Property
14. It is further submitted that the said Schedule 'C' Property is now standing in the name of this defendant's wife and defendant No.2 along with his family members have been in peaceful possession and enjoyment of the Schedule 'C' Property by exercising all kind of ownership in respect of Schedule C' Property. It is 21 O.S.No.7424/2007 submitted that, the Plaintiff has not produced any document in order to substantiate that the Schedule A, B, D, E & F Properties belonging to the deceased Ganesh. The property bearing No.511, situated at 4th Cross, Mathikere Extension, Bangalore, is also one among the self acquired property of the deceased Ganeshan and therefore, the aforesaid property is also liable to be partitioned among the legal heirs of the deceased Ganeshan and accordingly, this defendant is also entitled to his share in the aforesaid property and which is in possession and occupation of the Plaintiffs, on behalf of the family of the deceased Ganeshan. This defendant had paid a sum of Rs 3,00,000/- to his mother towards purchase of Schedule 'C' Property. which was standing in the name of 1st defendant and the consideration paid by this defendant has been utilized towards the purchase of the property bearing No.511 in the name of deceased Purushotham. The first plaintiff with mala-fide intention 22 O.S.No.7424/2007 had left the said property from seeking division or partition in the above case and in view of the said circumstances, the property which is in occupation of the 1st plaintiff on behalf of all the legal heirs of deceased Ganeshan is liable to be partitioned. It is further submitted that neither the plaintiff nor her deceased husband have contributed any money towards the purchase of the aforesaid property and has been purchased out of the sale consideration paid by this defendant and therefore, the property in which the plaintiffs have been residing is also to be partitioned among the defendants and the plaintiffs.
15. It is submitted that the vacant site bearing No.22, situated at Nagasettyhalli village, Kodigehalli Grampanchayath, Yelahanka Hobli, Bangalore North Taluk, measuring East to West 30 feet and north to south 40 feet, standing in the name of the third defendant is also one among the properties of the deceased Ganeshan 23 O.S.No.7424/2007 and the said property is also not included by the plaintiffs.
16. It is also further submitted that the Schedule B' Property was owned and possessed by deceased Ganeshan and since he died intestate on 1-08-2006, leaving behind the defendants and the 1 st plaintiff as his legal heirs, the said property is also required to be partitioned.
17. It is further submits that, the Schedule A, B, D & E properties are available for partition belonging to the deceased Ganesh and said properties has to be divided among his legal heirs and therefore, this defendant is also entitled to 1/4th share in the aforesaid properties and therefore, this defendant claiming his right over the aforesaid A, B, D and E Properties. Accordingly, the defendant No.2 prays to dismiss the claim of the Plaintiff against the Schedule C' Property and to pass appropriate order in the light of the statement filed by this defendant 24 O.S.No.7424/2007 for his share in the interest of justice and equity.
18. Based of the rival pleadings of the parties and the records, this court has framed the following issues :-
1. Whether the plaintiffs prove that schedule properties are the joint family properties?
2. Whether the plaintiffs prove that they are in joint possession of the schedule properties?
3. Whether the defendant No.1 and 3 prove that the husband of the plaintiff No.1 has received Rs.3,00,000/- towards his share?
MODIFIED/ AMENDED ISSUE NO.4
4. Whether the defendant No.1 and 3 prove that suit schedule D property is the self acquired property of the late Ganesh and he had gifted the same to defendant No.3 through a registered gift deed dated 14/06/2006?
5. Whether the valuation of the suit is proper and court fee paid is sufficient?
6. Whether the plaintiffs are entitled for the relief claimed?
7. What order or decree?
25
O.S.No.7424/2007 ADDITIONAL ISSUE
1. Whether the suit is bad in law for non inclusion of the properties as contended by defendant No.1 and 3 in their written statement?
19. In order to prove the case of the plaintiff, the plaintiff No.1 has been stepped into the witness box and examined as PW.1 and Ex.P.1 and 2 documents are marked. The defendant No.2 has filed affidavit in lieu of examination in chief by reiterating the averments of the written statement and Ex.D.1 to 22 documents are marked through him. The defendant No.3 has been examined as DW.2 and Ex.D.23 to 46 documents are marked on her behalf.
20. Having heard the arguments of the both side and upon careful perusal of the records, now the findings of this court to the aforesaid issues are as under:-
Issue No.1: Partly in the affirmative 26 O.S.No.7424/2007 Issue No.2: Affirmative in part Issue No.3: As negative Modified Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: As negative Additional issue No.1: In the affirmative Issue No.7: As per the final order, for the following;-
REASONS
21. Issue No.1, 2 and modified Issue No.4: Since these issues are intrinsically interconnected, they are taken up together for discussion together in order to avoid the repetition of the law and the alleged facts.
It is specific case of the plaintiff in brief that Sri. Ganesh had married to Hamsa, the defendant No.1 and and from their wedlock, they begotten to three children namely G.Vijayakumar(D-2), G.Purshotham (Died on 22.04.2007), and G.Selvi (D-3). The Plaintiffs are the wife and son of deceased Purushotham. The said Ganesh has died on 01.08.2006. The husband of the plaintiff No.1 27 O.S.No.7424/2007 and father of the plaintiff No.2 by name Purushotham has died on 22.04.2007. It is the further case of the plaintiffs that, the said Ganesh died leaving behind the plaintiffs and defendant No.1 to 3 to succeed his estate. The said Ganesh had left behind the suit schedule properties, which are more fully described in the schedule. Though, the defendants were requested to effect partition, they failed to allot the shares of the plaintiffs. Hence, the present suit for the relief of partition and separate possession is filed.
22. In order to prove the case of the plaintiffs, the plaintiff No.1 being the wife of deceased Purushotham stepped into the witness box and filed affidavit by reiterating the averments of the plaint. Ex.P.1 is the certified copy of the Sale Deed dated 19.10.1994. Ex.P.2 is the encumbrance certificate pertains to Site No.61 measuring 45X30 feet, which is the suit schedule 'A' property. According to the plaintiffs, the suit schedule 28 O.S.No.7424/2007 properties are joint family properties belonging to Sri. Ganesh and the plaintiffs and defendant No.1 to 3 being the legal representatives of the deceased, entitled to 1/4 share in the suit schedule properties. The relationship between the parties is not in dispute. It is also not in dispute that the parties are Hindus and governed by Mitakshara School of Hindu law. Now it is to be seen whether the plaintiffs are able to prove their case by preponderance of probabilities. In other words, the burden of proof lies on the plaintiffs as per Section 101 and 102 of the Indian Evidence Act. Now it is to be seen whether the plaintiffs are able to prove that the suit schedule properties are the joint family properties and still the said properties are available for partition and if so to what extent the parties are entitled.
23. Ex.P.1 is the Sale Deed and on perusal of said Sale Deed, it appears that, the said document pertains to suit schedule 'A' property only. Ex.P.1 is a registered 29 O.S.No.7424/2007 Sale Deed dated 19.10.1994. The initial burden to prove that the suit schedule properties are the joint family properties and still the said properties are available for partition is on the party who asserts that the properties are the joint family properties. Where property is held by any members of family burden of proof as regards joint- ness or self-acquisition upon person who asserts that it is a joint family property. Proof of the existence of a joint family does not lead to the presumption that the property held by any members of the family is in joint. In a case where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question might have been acquired, the burden shifts to party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
30
O.S.No.7424/2007
24. The legal position is that, the joint and undivided family is the normal condition of Hindu society. An undivided family is not only joint in estate but also in food and worship. The existence of joint estate is not essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. The presumption of union is the greatest, in case of father and sons. It is also settled law that the proof of existence of a joint family does not lead to the presumption that it possess joint property. The property held by a member of a joint family can not also be presumed to be joint family property. In a suit for partition, a party who claims that any item of suit property is joint family property, the burden of proving that it is so, rests on the party who asserts it.
25. In the instant case, the defendant No.1 and 3 are contending that suit schedule 'A' property is a joint family property and the said property is available for 31 O.S.No.7424/2007 partition. With regard to 'B' schedule property, it is contended that the said property had acquired by Ganesh, who authorized his wife the defendant No.1 herein, through GPA dated 28.01.2000 to alienate the property and as per the said GPA she sold the said property to one Krishnappa through Sale Deed dated 07.02.2007 and therefore, the said property is not available for partition. It is further case of the defendant No.1 and 3 that, suit schedule 'C' property is also a joint family property. Though, the defendant No.1 and 3 prays to dismiss the suit for the reasons detailed in their written statement, they admits that, suit schedule property 'A' and 'C' properties are available for partition.
26. Defendant No.2 has filed detailed written statement contending that, the suit schedule 'C' property is self acquired property of the defendant No.1, who acquired the same from one Sampangi Ramaiah and in turn she executed the GPA in favour of the defendant no.2 and 32 O.S.No.7424/2007 subsequently, the defendant no.2 has executed the registered sale deed in favour of his wife Smt. Bharathi and therefore, the suit schedule 'C' property is not available for partition.
27. As could be seen from Ex.P.1, it is crystal clear that the said sale deed pertains to suit schedule 'A' property only. Ex.P.2 the encumbrance certificate also pertains to the suit schedule 'A' property. On plain reading of the plaint it appears that, though the plaintiffs have stated that, the properties are the joint family properties, the nature of acquisition and from whom the suit properties are acquired is not forthcoming.
28. Per contra the defendant No.2 has contended that the suit schedule 'C' property is his self acquired property and therefore, he sold the same to his wife vide sale deed dated 01.02.2008. it is further contended by the defendant No.2 that, originally the suit schedule 'C' property belonged to one M.R. Sampangi Ramaiah, who 33 O.S.No.7424/2007 executed the GPA dated 26.07.1986 in favour of Hamsamma and in turn the defendant No.1 executed the GPA dated 22.02.1996 in favour of the defendant No.2 and subsequently the defendant No.2 executed sale deed as per Ex.D.13 and therefore, 'C' schedule property is the absolute property of the defendant No.2. Ex.D.2 and 3 GPAs are unregistered documents. The sale deed dated 01.02.2008 marked at Ex.D.13 was executed subsequent to the filing of the suit. The plaintiffs have not produced any documents to show that suit 'C' schedule property is the joint family property. On the other hand, Ex.D.1 and 2 goes to show that, the said property has derived to the defendant No.1 through GPA. Ex.D.1 is the consent deed, which is unregistered document. As per Ex.D.1, husband of the plaintiff No.1 has relinquished his right in respect of the 'C' schedule property but reserving his right to claim share in the joint family properties. Combined reading of Ex.D.2, 3 and Ex.D.13 the sale 34 O.S.No.7424/2007 deed, it is crystal clear that, the 'C' property was held by the defendant No.1. It is settled position of law that, a GPA holder being an agent can not sub-delegate his authority. In other words, the GPA holder can not execute another GPA in the absence of contract to the contrary. The counsel for the defendant No.1 and 3 has placed reliance on the ruling of Hon'ble Supreme Court reported in (2012) 1 SCC 656 in case of Suraj Lamp and Industries private Limited V/s State of Haryana and another, wherein it is held that immovable property can be transferred/ conveyed only by deed of conveyance duly stamped and registered as required by law. Though, certain genuine transactions are saved in the said judgment, in the instant case both the GPAs are unregistered and for the reason that an agent can not sub delegate his authority, the GPA holder do not acquire any right and title over the property. That apart, Ex.D.13 the sale deed is executed subsequent to the suit. As per 35 O.S.No.7424/2007 Section 52 of the Transfer of property Act, the property can not be transferred so as to affect the rights of the any other party during they pendency of the suit except under the authority of the court and on such terms as it may impose. This suit is filed in the year 2007 and whereas Ex.D.13 has executed on 01.02.2008. The said sale transaction is hit by provision of Section 52 of TP Act.
29. Now it is to be seen, whether 'C' schedule property can be termed as joint family property. As discussed herein above the plaintiffs have not produced any documents to show that the said property was held by deceased Ganesh. Ex.D.2, 3 and Ex.D.13, the sale deed depicts that the defendant No.1 had acquired it through GPA. Admittedly, the defendant No.1 has died on 02.04.2023 that is subsequent to the suit. Since, 'C' schedule property was owned and possessed by the defendant No.1 and no title would pass on to the 36 O.S.No.7424/2007 defendant no.2 and inturn the wife of the defendant No.2, it can be said that the said property is female property and not the joint family property.
30. The plaintiffs have not produced document to show that except the suit schedule 'A' property the other properties are owned and possessed by deceased Ganesh and the said properties are joint family properties. As could be seen from the evidence of PW.1 the parties are residing separately. Since the plaintiffs have not produced documents to show that the remaining properties are joint family properties and thus failed to discharge their burden, it is difficult to hold that the suit schedule properties are the joint family properties. No doubt, since the defendant No.1 died subsequent to the suit, the plaintiffs and defendants are entitled to the share in the said property i.e suit schedule 'C' property.
31. As per Sec.190 of the Contract Act an agent cannot lawfully employ another to perform acts which he 37 O.S.No.7424/2007 has expressly or impliedly undertaken to perform personally. As per Sec.202 of the said Act Where the agent has himself an interest in the property, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. In the instant case, the defendant No.1 being the GPA holder of Sampangiramaiah in turn executed GPA infavor of the defendant No.2. The defendant No.2 based on the said GPA executed sale deed at Ex.D.13 infavor of his wife. As discussed herein above, since the delegated power cannot be sub-delegated as per Sec.190 of Contract Act, the sale deed executed by defendant No.2 infavor of his wife is not a valid sale deed.However one thing is clear that the property is still remains in the family of the defendant No.1,who died subsequent to the suit. As per Sec.15 of the Hindu Succession Act the children of a female Hindu being the class-1 legal heirs entitled to succeed the estate of the deceased.
38
O.S.No.7424/2007
32. The defendant No.1 and 3 have contended that the suit schedule 'D' property was the self acquired property of Ganesh and during his life time he executed the Will dated 29/02/1996 bequeathing the property to the defendant No.3 Selvi. He also executed GPA dated 29/02/1996 as per Ex.D.25 infavor of the defendant No.3 herein. Ex.D.34 is the sale deed dated 26/08/1974 executed infavor of one Ramanna Sen. Ex.D.33 is the sale deed dated 16/01/1976 executed by said Ramanna Sen infavor of the deceased Ganesh.Ex.D.33 and 34 the sale deeds makes it clear that the suit schedule D property is the self acquired property of deceased Ganesh. Ex.D.46 is the gift deed 14-06-2006 executed by Ganesh infavor of defendant No.3 Selvi. All the said documents makes it clear that the suit schedule D property is the self acquired property of deceased Ganesh, who during his life time gifted the same to his daughter, the defendant No.3 herein. Hence, the very 39 O.S.No.7424/2007 contention of the plaintiffs and defendant No.2 that the suit schedule D property is the joint family property and the said property is also available for partition is not tenable.
33. The plaintiffs have not produced any documents to show that the except suit schedule A property the other properties are joint family properties and thus they failed to discharge the initial burden. Suit schedule 'C' property can be termed as a female property. No document is forthcoming to show the existence of the remaining properties and the said properties are available for partition. As discussed herein above, suit schedule D property is the self acquired property of Ganesh, who during his life time gifted the same to his daughter. Hence, the said property is the self-acquired property of defendant No.3 herein. Since the existence of properties and they are available for partition is not established by the plaintiffs, it can be said that the 40 O.S.No.7424/2007 plaintiffs have also failed to prove the alleged joint possession of the properties. Hence, issue No.1 is answered partly in the affirmative to the effect that the plaintiffs have proved that only suit schedule A property is the joint family property and the said property is available for partition. Except the suit schedule A property the plaintiffs have failed to prove the joint possession and therefore, the issue No.2 is answered in the affirmative in part accordingly. In view of the foregoing discussion and on account of the fact that the defendant No.1 and 3 have proved that the suit schedule D property is their self-acquired property the modified issue No.4 is answered in the affirmative.
34. Issue No.3:- The defendant No.1 and 3 have contended that the husband of the plaintiff No.1 had received Rs.3,00,000/- in lieu of his share. The defendant No.2 has also contended that the husband of the plaintiff has relinquished his right by executing 41 O.S.No.7424/2007 consent deed dated 29/02/1996 marked as Ex.D.1. The said consent deed is an un-registered document. As could be seen from the said deed there is a recital to the effect that the deceased had retained his right over the joint family properties. As Ex.D.1 is a un-registered document and no witnesses are examined to prove the execution of the said document, it cannot be said that the deceased had relinquished his right in the joint family. As per Sec.17 of the Registration Act 1908 any document which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of Rs.100/- (One Hundred) and upwards, to or in immovable property shall be registered. Ex.D.1 is an un-registered document. None of the witnesses have been examined to prove the payment of Rs.3,00,000/- to deceased Purushotam. Hence, in the absence of evidence, this court cannot come to the 42 O.S.No.7424/2007 conclusion that deceased Purushotham had relinquished his right by accepting Rs.3,00,000/-in lieu of his share. Accordingly, issue No.3 is answered as negative.
35. Additional issue No.1 dated 27/05/2024:-
Defendant No.1 and 3 have contended that plaintiffs have not included all the properties. It is further contended that in a suit for partition all the co-sharers and the properties shall be impleaded. PW.1 in the course of cross examination by counsel for defendant No.1 and 3 deposes as under:-
ನನ್ನ ತಂದೆಯವರು ಬೆಂಗಳೂರಿನ ಪ್ರಕಾಶ್ ನಗರದ 3 ನೇ ಅಡ್ಡ ರಸ್ತೆಯಲ್ಲಿ ಮನೆ ಮಾಡಿಕೊಂಡು ನೆಲೆಸಿದ್ದ ರು. ನನ್ನ ತಂದೆಯವರಿಗೆ ಕುರುಬರಹಳ್ಳಿಯಲ್ಲಿರುವ ಜೆ.ಸಿ.ನಗರದಲ್ಲಿ ಮನೆ ನಿವೇಶನ ಸಂಖ್ಯೆ 16 ರಲ್ಲಿ ಒಂದು ಮನೆ ಇದೆ. ಪ್ರಕಾಶ್ ನಗರದಲ್ಲಿ ಮನೆ ನಿವೇಶನ, ವೇಲೂರು ಜಿಲ್ಲೆಯ ಕುಮ್ಮ ರಗುಂಟ ಗ್ರಾಮದಲ್ಲಿ ವ್ಯ ವಸಾಯದ ಜಮೀನು ಮತ್ತು ಬೇರೆ ಬೇರೆ ಜಮೀನುಗಳು ಇವೆ, ಆದರೆ ಅವುಗಳ ಬಗ್ಗೆ ನನಗೆ ಮಾಹಿತಿ ಇಲ್ಲ . ನಾನು ಹೇಳಿದಂತಹ ಆಸ್ತಿಗಳನ್ನು ಬಿಟ್ಟು ಬೇರೆ ಯಾವುದೇ ಅಸ್ತಿಗಳು ಇರುವುದಿಲ್ಲ .
36. Similarly, in the cross examination dated 02/02/2018 she admits about the properties which are 43 O.S.No.7424/2007 not included in the plaint schedule. The said admissions are as under:-
ನಮ್ಮ ಮಾವನವರಾದ ಗಣೇಶ್ರವರಿಗೆ ಹೂಸೂರ್ನಲ್ಲಿ 2 ಸೈಟ್, ತಿಂಡ್ಲು ನಲ್ಲಿ 1 ಸೈಟ್ ಮತ್ತು ಎಂ.ಎಸ್.ಆರ್.ನಗರದಲ್ಲಿ 2 ಬಹುಮಹಡಿ ಕಟ್ಟ ಡಗಳು ಇವೆ.
ಈ ಮೇಲೆಳಿದ ಅಸ್ತಿಗಳ ದಾಖಲಾತಿಗಳನ್ನು ನಾನು ನೋಡಿರುವುದಿಲ್ಲ . ಹೂಸೂರ್ನಲ್ಲಿರುವ ಖಾಲಿ ಸೈಟ್ನ್ನು ನಾನು ನೋಡಿರುತ್ತೇನೆ. ಆದರೆ ಅದರ ಅಳತೆ, ಖಾತೆ ಸಂಖ್ಯೆ ಮತ್ತು ಚಕ್ಬಂದಿ ಗೊತ್ತಿರುವುದಿಲ್ಲ .
37. The above unequivocal admissions by PW.1 makes it clear that there are some other properties which were owned and possessed by deceased Ganesh and the said properties are not included in the plaint schedule. As discussed herein above, no document is forthcoming in respect of the suit schedule properties except the A schedule property to show that the said properties are joint family properties. As rightly contended by the counsel for the defendant No.1 and 3 in a suit for partition all co-sharers and all the properties shall be included. In other words, the suit is bad in law for non- 44
O.S.No.7424/2007 inclusion of properties. It is also settled position of law that the plaintiffs cannot pick and choose the properties to file a suit for partition. The learned counsel for defendant No.1 and 3 has placed reliance on the rulings of Hon'ble High Court rendered in RFA No.345/2019 dated 26/10/2023 in the case of K.R. Ravishankar and Another V/s Vijayamma and Others wherein at paragraph No.14 it is held that the suit of the plaintiff for partial partition is not maintainable. Similarly, the Division Bench of Hon'ble High Court in a ruling reported in the case of G.M.Mahendra V/s G.M. Mohan at paragraph No.18 it is held that inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpot, the suit for partition of the share of the members of the joint family in one property which amounts to partial partition is not maintainable. 45
O.S.No.7424/2007
38. Similarly, in a ruling rendered in RFA No.345/2019 in the case of K.R. Ravishankar cited supra at paragraph No.17 held as under:-
17. In view of the principle laid down by the Division Bench as well as the Co-ordinate bench in the above said case, the suit filed by the plaintiff for partial partition is not maintainable. The Trial Court not considered this aspect and erred in giving findings against the defendants. Hence, answered the point No.1 in favour of the appellant/defendant Nos.5 and 6.
39. There are categorical admissions made by Pw.1 in the course of cross examination that they are other landed properties which are owned and possessed by deceased Ganesh in Bangalore and State of Tamil Nadu and those properties are not included in the present suit. As per Sec.58 of the Indian Evidence Act the fact admitted need not be proved. In other words, combined reading of the oral and documentary evidence available on record, makes it clear that the plaintiffs have failed to 46 O.S.No.7424/2007 include all the properties. That apart, the initial burden is not discharged by producing relevant documents to show that the suit schedule properties are joint family properties. Hence, this court is of the considered opinion that the suit is bad in law for non-inclusion of the landed properties. Accordingly, additional issue No.1 is answered in the affirmative.
40. Issue No.5:- The suit is one for the relief of partition and separate possession of the suit schedule properties. The plaintiffs have contended that the properties are the joint family properties and they are in joint possession of the said properties. The defendants have contended that the plaintiffs have to pay the court fee under Sec.35 (1) of the Karnataka Court Fee and Suit Valuation Act 1958. In the instant case, the court fee is paid under Sec.35(2) of C.P.C. The Division Bench of Hon'ble High Court in a ruling reported in ILR 2014 KAR 47 O.S.No.7424/2007 3707 in the case of Sampangi Gowda and others V/s Muddanna and another at paragraph No.12 held that to take the case out of Sec.35(2) their should be a clear and specific averment in the plaint that the plaintiffs has been excluded from joint possession. If there is a clear and specific averment in the plaint that they have been excluded from joint possession to which they are entitled to in law, then the case would fall under Sec.35 (1) of the Act. In the instant case, the plaintiffs have specifically pleaded the joint possession. Hence, this court is of the considered opinion that whatever the court fee paid by the plaintiffs is sufficient. Accordingly, issue No.5 is answered in the affirmative.
41. Issue No.6:- This suit is one for the relief of partition and separate possession of the suit schedule properties. Ex.P.1 and 2 pertains to suit schedule A property. No document is forthcoming to show the 48 O.S.No.7424/2007 remaining properties are joint family properties. The suit schedule 'C' property was owned and possessed by defendant No.1 and the plaintiffs and defendants have got equal right in the said property. However, the suit of the plaintiff cannot be decreed for the non-inclusion of many landed properties admitted by PW.1. In other words, PW.1 specifically admits the fact that the many landed properties are not included in the plaint schedule. That apart, there is serious inconsistency in the plaint schedule. In the original plaint filed at the very inception there are 6 properties whereas in the amended plaint there are 4 properties i.e A to D. In view of the reasons assigned on the above issues and findings thereon, the suit schedule D property is the self-acquired property of the defendant No.3. The plaintiffs have failed to discharge initial burden and an account of the fact that many landed properties are not included in the suit, they are not entitled to the relief of partition and separate 49 O.S.No.7424/2007 possession. Accordingly, issue No.6 is answered as negative.
42. Issue No.7:- In view of the foregoing discussion on the above issues and the findings thereon, this court proceeds to pass the following;
ORDER The suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 9th day of July, 2024.) (DODDEGOWDA.K) XLIV ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side :50
O.S.No.7424/2007 PW.1 Poongodi
(b) Defendant's side :
DW.1 Vijaykumar.
DW.2 Smt. Selvi
DW.3 Thanuush Ram
List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of the Sale Deed dated 19.10.1994 Ex.P.2 Encumbrance certificate
(b) Defendants' side :
Ex.D.1 Consent deed,
Ex.D.2 and 3 GPA's Unregistered documents
Ex.D.4 Certificate
Ex.D.5 Fee receipt
Ex.D.6 BBMP notice
Ex.D.7 & 8 Revenue receipts
Ex.D.9 Notice
Ex.D.10 Bank pass book
Ex.D.11 & 12 Katha certificates
Ex.D.13 Power of attorney
Ex.D.14 ಋಣ ಭಾರ ರಹಿತ ಪತ್ರ
51
O.S.No.7424/2007
Ex.D.15 Uttarapathra
Ex.D.16 Katha certificate
Ex.D.17 Certified copy
Ex.D.18 Revenue receipt
Ex.D.19 Legal notice
Ex.D.20 Postal acknowledgment
Ex.D.21 Certificate of post
Ex.D.22 Certified copy of order sheet in
Crl.Misc. No.634/2003
Ex.D.23 Sale deed dated 17/11/1994
Ex.D.24 Will dated 29/02/1996
Ex.D.25 GPA dated 29/02/1996
Ex.D.26 to 28 Three property tax paid receipts Ex.D.29 Certified copy of katha extract Ex.D.30 Demand notice dated 26/07/2006 Ex.D.31 Death certificate of G. Ganesh Ex.D.32 Encumbrance certificate Ex.D.33 Sale deed dated 16/01/1976 Ex.D.34 Sale deed dated 26/08/1974 Ex.D.35 Encumbrance certificate Ex.D.36 Gift deed dated 30/05/2015 Ex.D.37 Receipt issued by police Ex.D.38 Copy of police complaint dated 52 O.S.No.7424/2007 30/12/2006 Ex.D.39 Affidavit of this witness Ex.D.40 Paper publication Ex.D.40(a) Relevant portion of paper publication Ex.D.41 Paper publication Ex.D.41(a) Relevant portion of paper publication Ex.D.42 Certified copy of encumbrance certificate Ex.D.43 Sale deed dated 14/11/1994 Ex.D.44 Certified copy of RTC Ex.D.45 Certified copy of sale deed dated 06/10/1997 Ex.D.46 Gift deed dated 14/06/2006 XLIV ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
53 O.S.No.7424/2007