Bangalore District Court
It Is True That The 1St Plaintiff Had ... vs Has Vehemently Argued That The Suit In ... on 1 February, 2019
44 OS No.7403/1994
Judgment pronounced in Open Court
vide separate orders:
Suit of the plaintiff is
dismissed.
No order as to cost.
(K.S.Jyothishree),
I Addl. City Civil & Sessions Judge,
Bangalore.
43 OS No.7403/1994
" P-14 certified copy of compromise petition
" P-15 Certificate
" P-16 Brick business endorsement
" P-17 & 18 certified copies of sale deeds
" P-19 & 20 General Power of Attorneys
" P-21 to 25 certified copies of sale deeds
" P-26 to 30 certified copies of encumbrance certificates
" P-31 certified copy of sale deed
" P-32 certified copy of General Power of Attorney
" P-33 Kautumbika Oppandada Kararu Pathra
" P-34 certified copy of plaint in OS No.5479/1989
LIST OF WITNESSES EXAMINED FOR DEFENDANTS
DW.1 B.V.Thammaiah
LIST OF DOCUMENTS MARKED FOR DEFENDANTS
Exs.D-1 Release deed
" D-2 Agreement
" D-2(a) to (c) Signatures
" D-3 certified copy of compromise petition
" D-4 Sale deed
" D-5 Mutation register
" D-6 Record of rights
" D-7 Mutation register
" D-8 to 10 Record of rights
" D-11 Mutation register
(K.S.Jyothishree),
I Addl. City Civil & Sessions Judge,
Bangalore.
42 OS No.7403/1994
ORDER
Suit of the plaintiff is dismissed.
No order as to cost.
(Dictated to the Judgment Writer, typed by her, corrected and then pronounced by me in open Court on this the 1st day of February 2019).
(K.S.Jyothishree), I Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 B.Ashwathamma LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 Original gift deed " P-1(a) to(h) Signatures " P-2 Will " P-3 Outpatient receipt " P-4 Affidavit " P-5 & 6 Original cheques " p.7 & 8 Death Certificates " p.9 certified copy of release deed " p.10 Index of land " p.11 record of rights " p.12 certified copy of order sheet in OS No.5479/1989 " P-13 certified copy of plaint & valuation slip in OS No.5479/1989 41 OS No.7403/1994 Limitation Act is not applicable to the facts of the present case. Since the 2nd plaintiff was aware of the release deed and compromise petition in the year 1989, the present suit filed in the year 1994 by the 2nd plaintiff is barred by limitation. As such, I answer Issue No.10 in the Negative and Addl.Issue No.2 dated 5.7.2017 in the affirmative.
60. Addl.Issue No.1:- Since there is no dispute with regard to execution of registered gift deed dated 12.12.1983, this issue does not survive for consideration.
61. Issue No.11:- The main relief is for partition. The plaintiffs have pleaded their alleged joint possession and enjoyment over the suit properties. The plaintiffs have sought the consequential relief of declaration & cancellation of compromise. So, there is no need to pay additional court fee. As such, I answer this issue in the affirmative.
62. Issue no.12:- With these discussions and reasons, I proceed to pass the following :- 40 OS No.7403/1994
58. In the case on hand, the 2nd plaintiff was aware of the execution of release deed and also submission of compromise petition in the year 1989. So, the period of limitation starts to run from the date of execution of release deed and also from the date of filing of compromise petition. The present suit is filed in the year 1994. In this count also, the suit is barred by limitation.
59. The learned counsel for the plaintiff has argued that limitation commences after party has came to know of the fraud. In this regard, the learned counsel is also relied on the above mentioned Rulings. It is worth to note that, the plaintiffs have not proved the alleged fraud by the defendants no.1 to 6. There are no materials to show that the registered release deed was obtained by fraud. At the same time, the plaintiffs have not placed the materials to establish that the defendants were obtained the signature of the 1st plaintiff on the compromise petition by playing fraud. As such Section 17 of the 39 OS No.7403/1994 worth to note that she had knowledge of the compromise petition as and when it was filed. It is true that the compromise petition was accepted in the year 1992. but, the compromise petition was signed by all the parties and submitted before the court in the year 1989.
57. The learned counsel for the plaintiff has argued that the compromise decree is not binding on the 2nd plaintiff. It is true that the 1st plaintiff had executed the registered gift deed in favour of 2nd plaintiff as per Ex.P.1. But, the 2nd plaintiff was aware of execution of release deed dated 31.10.1989 and compromise petition dated 29.11.1989 as and when they were prepared. So, the limitation starts to run from the date of first knowledge. In these circumstances, it is necessary to look into the Article 137 of Limitation Act . It states that for any other application which no period of limitation is provided, the period of limitation is three years from the date when the right to apply accrues. 38 OS No.7403/1994
adjustment of satisfaction is arrived on basis of any lawful agreement. No appeal shall lie from a decree passed by the court with the consent of the parties. Such decree is valid and binding on the parties to the proceedings.
54. The Hon'ble Apex Court has also held that Order XXIII Rule3(A) clearly bars a suit to set aside the decree on the ground that the compromise on which the decree is based was not lawful. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie. The only remedy available to the party is to approach the court which recorded the compromise and made a decree in terms of it and establish that there was no compromise".
55. In the instant case, the 1st plaintiff was a party to the compromise and as such, he has no locastandi to file a present suit challenging the compromise decree.
56. So far as 2nd plaintiff is concerned, it is true that she was not a party in OS No. 5479/1989 but, it is 37 OS No.7403/1994
52. It is the contention of the defendants that the suit is barred by limitation. The learned counsel for the defendants has vehemently argued that the suit in the present form is not maintainable. The learned counsel has submitted that there is a specific bar Under Order XXIII Rule 3(A) for institution of separate suit by the 1st plaintiff to set-aside the decree on the basis of a compromise.
53. In the present case, it is not in dispute that the 1st plaintiff was a party to OS No. 5479/1989. he was also present before the court and submitted the compromise petition. Order XXIII, Rule 3(A) CPC states that "no suit shall lie to set-aside a decree on the ground that the compromise on which the decree is based was not a lawful". In this regard, the defendants no. 1 to 6 have relied on the Ruling reported in 1993 (1) SCC 581. In this case, the Hon'ble Apex court has held that "court before which compromise petition is filed and which has recorded compromise has to decide question whether 36 OS No.7403/1994 was decreed in terms of the compromise dated 29.11.1989.
51. The partition between the 1st plaintiff and his brothers was already taken place as per the compromise in OS No.5479/1989. Further, the parties were expressed their intention to severe from the joint family, as and when , they filed compromise petition in the year 1989. As such, the joint family was not in existence as on the date of filing of the present suit. According to PW.1, she was aware of the execution of release deed within a week from the date of the registration of the document. If such being so, she never questioned the act of her father, since the latter had already executed Ex.P.1 in her favour. The 2nd plaintiff has failed to take legal action against her father and the defendants in respect of the execution of release deed and also the compromise petition in OS No.5479/1989. Therefore, the question of partition does not arise. The suit properties were already partitioned and the said partition has been acted upon. 35 OS No.7403/1994 properties. The defendants have proved the execution of Ex.D.2 by the 1st plaintiff.
49. It is true that ''Koutumbika Oppandada Kararu' was entered into between the parties after the filing of compromise petition and also after execution of registered release deed. As I have already sated earlier, if at all the defendants were failed to perform their part of the obligation, the only option available to the 1st plaintiff was to file a suit against the defendants for Specific Performance of the agreement dated 16.12.1991. So, the suit in the present form is not maintainable. It is established from the evidence that the 1st plaintiff had received Rs.50,000/- and the defendants executed General Power of Attorney and affidavit in favour of first plaintiff as per the terms of agreement.
50. The learned counsel for the plaintiffs has submitted synopsis of arguments and admitted the execution of Exs.P.19 & 20 and also the mutation entry as per Ex.D.5 to D.8. On 19.8.1992, OS No.5479/1989 34 OS No.7403/1994 played fraud, nothing prevented the 1st plaintiff to object the compromise petition in OS.No.5479/1989. In this regard, the defendants are relied on the Ruling reported in AIR 1969 Ori 63 (Smt.Brajabaladas Vs Radha Kamal Das and others) in this decision, the Hon'ble High Court has held that "there must be a clear pleading with regard to the definite knowledge of facts which constitute fraud".
48. The learned counsel for the defendants has argued that there is no evidence from the plaintiffs to prove the alleged fraud. It is relevant to note that, the 1st plaintiff himself had appeared before the court through his counsel in OS No.5479/1989 and even prior to that, he had executed the registered release deed. It is also established that Byanna had received Rs.50,000/- under Ex.D.2 from the defendants and thereby the said release deed has been acted upon. So, the plaintiffs have failed to prove the alleged fraud. It appears that Byanna had voluntarily executed the registered release deed and thereby relinquished all his rights over the joint family 33 OS No.7403/1994 ruling is not applicable to the facts of the present case since the 2nd plaintiff was aware of the execution of release deed and also the compromise petition during the year 1989. During the cross examination, Pw-1 has admitted that she came to know about the execution of the release deed within week from thereof. She has also admitted that in the year 1989 itself, she had knowledge about the compromise petition in OS No.5479/1989. Pw.1 has further admitted that, after knowing the execution of release deed by her father, she did not lodged any complaint before any authorities. It means the 2nd plaintiff was kept mum till filing of the present suit and never questioned the execution of release deed & also the terms of compromise petition. Now, the 2nd plaintiff is estopped from claiming her alleged share in the suit properties.
47. It is the case of the plaintiffs that, T.Muniswamappa had obtained the registered release deed by playing fraud. If at all the defendants were 32 OS No.7403/1994 KAR 2559 (Siddalingeshwara and others Vs. Virupaksha gowda) and argued that in a partition suit where only the heads of branches are made parties without impleading other members who are entitled to share will be a representative suit for the purpose of Order 23 rule 3(B) of CPC, having regard to the explanation (d) to the said rule. The learned counsel has also canvassed that, in such representative suit, no agreement or compromise can be entered into without the leave of the court, expressly recorded in the proceedings after issuing notice to all the parties interested in the suit.
45. The learned counsel has further argued that the court has not given notice to the plaintiff No.2 and hence, the compromise was void and will not be a bar to a subsequent suit challenging the compromise decree.
46.It is true that the 2nd plaintiff is having right to question the compromise decree by filing separate suit. Accordingly she has filed the present suit. There is no bar for the 2nd plaintiff to file the separate suit. But, the said 31 OS No.7403/1994 registered sale deeds, the entry was made in the encumbrance certificate.
43. As I have already discussed supra, the 1st plaintiff has no right to question the registered release deed and also the compromise decree.
44. The plaintiff no.2 is claiming her alleged right over the suit properties. In this regard, the learned counsel for the plaintiffs has argued that the provisions of Order 23 rule 3(A) of CPC is not applicable so far as plaintiff No.2 is concerned, since she was not a party to the compromise in OS No.5479/1989. The learned counsel has referred the provisions of Order 23 rule 3(B) and its explanation that no agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceedings and any such agreement or compromise entered into without the leave of the court so recorded shall be void. In this regard, the learned counsel has also drawn my attention to look into the ruling reported in ILR 2003 30 OS No.7403/1994 registered release deed is binding on the plaintiffs. From these discussions, it is clear that joint family ceased to exist as and when the compromise petition was filed.
41. The plaintiffs have produced various sale deeds executed by the defendants in favour of 3rd parties. Ex.P.21 is the certified copy of the sale deed dated 9.12.1998. Ex.P.22 is the certified copy of the sale deed dated 8.3.2000. Ex.P.23 is the certified copy of sale deed dated 12.12.2001. Ex.P.24 is the certified copy of the sale deed dated 31.10.2002. Ex.P.31 is the certified copy of the sale deed dated 15.5.1998. Ex.P.32 is the certified copy of GPA dated 28.9.2006. All these documents are the post suit documents i.e. during the pendency of the suit, the defendants were executed the above documents. All these documents are nothing to do with the claim of the plaintiffs.
42. Ex.P.26 to Ex.P.30 are the encumbrance certificates. All these documents are pertaining to the above sale transactions. It means based on the above 29 OS No.7403/1994 in the name of the respective parties, in terms of the compromise.
38. From the above documents, it is clear that the earlier suit for partition in OS No.5479/1989 was filed on 7.10.1989. It appears that after the receipt of court summons and prior to the execution of compromise petition, the 1st defendant had executed Ex.D.1 on 31.10.1989 and thereby relinquished all his rights over the joint family property by receiving Rs.50,000/- cash and a landed property as per Ex.D.2.
39. Ex.P.14 clearly shows that Byanna was appeared before the court though his counsel and signed the compromise petition on 29.11.1989. It means after the execution of Ex.D.1, the 1st plaintiff was agreed to compromise the dispute.
40. It is important to note that as per the terms of Ex.P.33, the defendants were executed Ex.P.19 and P.20 in favour of Byanna. The first plaintiff has failed to demand the specific performance of Ex.P.33. So, the 28 OS No.7403/1994 was agreed to the terms of the compromise petition and thereby accepted Rs.50,000/- as his share and also 1 acre 36 gutnas of land in sy.No.186. As such, the said Byanna never raised his objections to the compromise petition. It is worth to note that though the compromise petition was filed on 29.11.1989, the court was accepted the said compromise petition during 1992 as per Ex.P.12.
37. So, it is clear that the 1st plaintiff had admitted the compromise petition and not produced the release deed and Ex.P.33 before the court, as and when the compromise petition was filed. It is established that the joint family was ceased to exist and it discloses the intention of the parties to severe from the joint family. Hence, as on the date of filing of the present suit, the joint family was not at all in existence. The parties to the suit are enjoying their share as per the compromise. It means, the compromise has been acted upon by the conduct of the parties. The documents are also changed 27 OS No.7403/1994 Ex.D.7 is the mutation extract in respect of 5 guntas of land in Sy.No.6/8. Ex.D.8 is the RTC extract pertaining to 16 guntas of land in Sy.No.6/8. Column No.9 show the name of the 2nd plaintiff that she is in possession of five guntas of land. Ex.D.9 is the record of rights and as per this document, the name of Aswathamma was entered pertaining to one acre 36 guntas of land in Sy.186. Ex.D.10 is the RTC extract pertaining to 1 acre 36 guntas of land in Sy.No.186. This document also discloses the name of the 2nd plaintiff. Ex.D.11 is the mutation extract bearing M.R.No.25/2011-12. It demonstrate that the 2nd plaintiff is enjoying 1 acre 36 guntas of land in Sy.No.186.
36. Exs.P.5 & 6 show that B.V.Thammaiah was a partner in M/S VNB Brick Factory. It appears that, only suit item No.1 to 6 were the joint family properties and the remaining properties are the absolute properties of the defendants, since B.V.Thammaiah was running his own business. Ex.P.14 categorically reveals that Byanna 26 OS No.7403/1994 agreed to receive Rs.50,000/- as his share apart from 'C' schedule property.
34. From the above documents, it is established that the earlier suit for partition was filed prior to the execution of Ex.P.9 and the parties were compromised the matter as per Ex.D.3. Ex.D.1 is the original registered release deed executed by Byanna in favour of the defendants. It appears that at the time of execution of the registered release deed, Byanna had handed over the original document to the defendants and hence, the plaintiffs have produced the certified copy of the same as per Ex.P.9.
35. Ex.D.5 to Ex.D.11 are the revenue documents. As per Ex.D.5, the name of Aswathamma was mutated in respect of the property gifted to her by the 1st plaintiff. It means the 2nd plaintiff has been enjoying the property acquired by her as per Ex.P.1. Ex.D.6 is the RTC extract pertaining to 06 guntas of land in Sy.No.5/1. Column No.9 reveals the name of the 2nd plaintiff Ashwathamma. 25 OS No.7403/1994
33. Issue No.10 & Addl.Issue No.2 dated 5.7.2017:
Both the issues involve common discussion. It is not in dispute that the first plaintiff and the defendants were entered into compromise in OS No.5479/1989. Ex.P.34 is the certified copy of the plaint in OS No.5479/1989. Ex.D.3 is the certified copy of compromise petition. The said suit was filed by the children of late Venkataswamappa against Byanna and T.Muniswamappa for the relief of partition. The plaint was presented on 7.10.1989. It means prior to the execution of Ex.P.9, the suit for partition was filed in respect of 18 items of properties and as per Ex.D.3, the compromise petition was submitted and the matter was compromised among the parties. Ex.D.3 shows that Byanna was represented by his advocate and presented the compromise petition on 29.11.1989. It means prior to the execution of Ex.P.9, the parties were entered into compromise. Ex.D.3 further discloses that Byanna was 24 OS No.7403/1994 the defendants were partially fulfilled their part of the obligation. There are no materials on record to show whether the defendants were procured 2 acres 20guntas of land from Srinivasa and Ramachandra and executed the sale deed in favour of the first plaintiff. But as I have already stated earlier, the remedy available to the first plaintiff was to file a suit for specific performance of Ex.P.33. Moreover, as per Ex.P.33, if the defendants were failed to execute the documents, only the registered release deed shall stand cancelled. There are no recitals in Ex.P.33 about the compromise in OS No.5479/1989. As such, the only option available to the first plaintiff was to demand the specific performance of contract as per Ex.P.33 from the defendants. The first plaintiff had never exercised his right to file suit for specific performance within the stipulated time. Hence, I answer Issue No.7 in the Affirmative and in view of above discussion, Issues No.8 & 9 does not survive for consideration. 23 OS No.7403/1994 necessary implication, it is established that Ex.P.33 has been acted upon. To be precise, the defendants were executed General Power of Attorney and affidavit in favour of Byanna as agreed by them under Ex.P.33.
31. PW.1 has stated that the defendants were failed to act in accordance with agreement dated 16.12.1991 and they did not procure sale deed in respect of 2 acres 20 guntas of land in favour of first plaintiff.
32. It is important to note that, if at all the defendants were failed to comply the terms of Ex.P.33, the remedy available to the first plaintiff was to file a suit for specific performance of contract. Instead of filing a suit on the strength of Ex.P.33, the first plaintiff has claimed the relief of partition. It is important to note that the first plaintiff and his brothers never attempted to produce Ex.P.33 before the court in OS No.5479/1989 for the reasons best known to them. By producing Ex.P.19 and P.20, the plaintiffs have proved the execution of Ex.P.33. By executing these two documents, 22 OS No.7403/1994 and 37 guntas in Sy.No.34/1 were the joint family properties of the first plaintiff and his brothers.
29. Ex.P.19 is General Power of Attorney and affidavit dated 16.12.1991 executed by the children of Muniswamappa in favour of the first plaintiff in respect of 10 guntas of land in Sy.No.5/1. Ex.P.20 is another General Power of Attorney and affidavit dated 16.12.1991 executed by the children of Ventkataswamppa in favour of first plaintiff in respect of 10 guntas of land in Sy.No.6/8.
30. It means as per the terms of Ex.P.33, the defendants were executed the document in favour of the first plaintiff and during the cross-examination of PW.1, she has admitted the execution of General Power of Attorney in respect of the property bearing Sy.No.5/1 and 6/8. She has further admitted that both the properties are in her possession and khata of the said properties are transferred in her name. So, though the defendants were denied the execution of Ex.P.33, by 21 OS No.7403/1994 entered into 'Kautumbika Oppandada Kararu', wherein they agreed to purchase 2 acres 20guntas of land in Sy.No.93 from Srinivasa and Ramachandra in favour of the first plaintiff and further, agreed to execute sale deed in respect of 20 guntas of land in Sy.No.5/1 and 6/B within three months from the date of the agreement.
Ex.P.33 is Kautumbika Oppandada Kararu patra dated 16.12.1991.
27. This document further show that, if at all the defendants were failed to execute General Power of Attorney in favour of the first plaintiff in respect of 20 guntas of land and sale deed pertaining to 2 acres 20guntas, the registered release deed dated 31.10.1989 was stand cancelled. Naturally the defendants 1 to 6 have denied the execution and contents of Ex.P.33.
28. It is an undisputed fact that the properties mentioned in Ex.P.33 i.e., 1 acre 37 guntas in Sy No.5/1, 26 guntas in Sy.No.197, 16 guntas in Sy.No.6/8, 1 acre 13 guntas in Sy.No.19, 4 acre 32 guntas in Sy.No.32/2 20 OS No.7403/1994 had executed Ex.D.2, received Rs.50,000/- cash from B.V.Thammaiah and thereby relinquished all his rights over the joint family properties.
25. It is an admitted fact that Byanna had executed Ex.D.1 and relinquished his right over the joint family properties. The plaintiffs themselves have sought the relief to cancel the registered release deed. So, nothing more discussion is required in respect of the execution and contents of Ex.D.1. Since the joint family was not in existence as on the date of filing of the suit, the plaintiffs have failed to prove the concept of joint family and the joint family properties. There are no materials to establish that the plaintiffs are in the joint possession and enjoyment of the suit schedule properties. Accordingly I answer Issue No.1 to 4 in the Negative and Issue Nos.5 and 6 in the Affirmative.
26. Issue Nos.7 to 9: All these issues involve common discussion. PW.1 has stated that the first plaintiff, defendants and late Muniswamappa were 19 OS No.7403/1994 1st plaintiff had received Rs.50,000/- by way of cash from B.V.Thammiah. The 1st plaintiff had stated in Ex.D.2 that, he had taken two cheques for Rs.25,000/- each, but the said cheques were not presented since he had misplaced both the cheques. Ex.D.2 reveals that 1st plaintiff approached and requested B.V.Thammaih to pay Rs.50,000/- by way of cash, assuring him that he would return the cheques without encashment immediately after the same were traced.
23. It is relevant to note that the plaintiffs have produced the said cheques as per Ex.P.5 & 6 without encashment. It means, the 1st plaintiff had traced the said cheques after he received Rs.50,000/- by way of cash from B.V.Thammaiah.
24. During the cross examination, Pw1 has admitted that the signatures found on Ex.D.2 that it appears to be that of her father. It is important to note that the 2nd plaintiff never denied the signature of Byanna on Ex.D.2. So, it is very much clear that Byanna 18 OS No.7403/1994 and his brothers and the parties were separated from the joint family as and when they filed the compromise petition. Since there was no joint family, there was no occasion for the first plaintiff to act as Karta of the family. Further, there are no materials before the court to establish that the brothers of Byanna were played fraud and got the registered release deed i.e., Ex.D.1.
21. Since the joint family was already severed by expressing their intention for division and accepted the compromise, the said compromise is binding on all the parties in OS No.5479/1989. As such, the first plaintiff is not entitled to any share in the suit properties.
22. It is the case of defendants 1 to 6 that the first plaintiff had executed an agreement dated 25.11.1989 and acknowledged the receipt of Rs.50,000/-. Ex.D.2 is the agreement dated 25.11.1989 entered into between BV.Thammaiah and the 1st plaintiff. Ex.D.2(a) is the signature of B.V.Thammiah and Ex.D.2(b) & (c) are the signatures of the 1st plaintiff. As per this document, the 17 OS No.7403/1994 execution of Ex.D.1, none of the parties were reported the same in OS No.5479/1989, which was pending for consideration of compromise petition. If at all the defendants were obtained Ex.D.1 by playing fraud on Byanna, nothing prevented him to disclose the same before acceptance of the compromise petition. He had an opportunity to re-open OS No.5479/1989 that the said compromise was taken place against to his interest and he was allotted only one property, that too purchased by himself. It means, Byanna was fully aware of the impact of compromise petition and also the execution of registered release deed as per Ex.D.1. Moreover, Byanna had signed Ex.D.1 in English and it appears that he himself was present before the Sub-Registrar at that time of registration of release deed. It means, he was fully aware of the terms of release deed and voluntarily executed the document in favour of his brothers.
20. From the above materials, it is very much clear that the joint family was not in existence among Byanna 16 OS No.7403/1994 defendants 1 to 6 have produced the original registered release deed as per Ex.D.1. These documents disclose that the first plaintiff had relinquished his right in respect of the property bearing sy.No.5/1 measuring 1 acre 37 guntas, Sy.No.97 measuring 26 guntas, Sy.No.6/8 measuring 16 guntas, Sy.No.19 measuring 1 acre 13 guntas, Sy.No.32/2 measuring 4 acres 32 guntas and Sy.No.34/1 measuring 37 guntas and agreed to receive Rs.50,000/- from T.Muniswamappa and his children. Apart from that, the first plaintiff had stated in Ex.P.9 that he had received Rs.50,000/- in lieu of his share in the above properties. It means the first plaintiff Byanna had executed Ex.P.9 in respect of item No.1 to 6 of the suit property. There is no dispute about the execution of registered release deed by the first plaintiff. In the said document, Byanna has specifically contended that he had executed this document in respect of the ancestral properties and agreed to receive Rs.50,000/- towards his share. It is worth to note that, inspite of 15 OS No.7403/1994 earlier, Byanna was represented through his counsel, appeared before the Court, presented the compromise petition by accepting the contents and affixed his signature in English. So, though the partition was unequal, the same is binding on the plaintiffs.
18. It is relevant to note that initially, the plaintiffs have claimed the relief of partition in respect of six items of properties. Later, they got amended the plaint and included item Nos.7 to 17. Further, the property covered under Ex.P.1 & P.2 is not included in the plaint schedule.
19. PW.1 has deposed that Late Muniswamappa had played fraud on the first plaintiff and got the registered relinquishment deed dated 31.10.1989. She has further stated that, at the time of execution of the release deed, she questioned the same with her father as he had already executed registered gift deed in her favour. The plaintiffs have produced the certified copy of the release deed dated 31.10.1989 as per Ex.P.9. The 14 OS No.7403/1994 brothers to treat the above property as the joint family property. It is important to note that Byanna had put his signature in English and it means he was aware of the contents of the compromise petition. It appears that Byanna had consented to include the above property in the compromise petition.
16. The learned counsel appearing for plaintiffs has vehemently argued that the defendants were played fraud on Byanna and entered into compromise. The learned counsel has further argued that the defendants were allotted the self acquired property of Byanna as his share and thereby deprived his right in the joint family properties. According to the learned counsel, the earlier partition by way of compromise was unequal partition and hence, it is liable to be set aside.
17. It may be true that the compromise was unequal and the brothers of Byanna were allotted more properties compared to Byanna. But, it is not the ground to set aside the compromise. As I have already stated 13 OS No.7403/1994
15. It is an admitted fact that the first plaintiff and his brothers were the parties in OS No.5479/1989 and they were entered into compromise and submitted the compromise petition. Ex.P.14 and Ex.D.3 are the certified copy of compromise petition filed on 24.11.1989. As I have already stated earlier, the property purchased by the first plaintiff under Ex.D.4 was included in the earlier suit as item No.15. The first plaintiff herein was appeared through his counsel and never objected the inclusion of the property purchased by him. It is true that Ex.D.4 is standing in the name of the first plaintiff. It is also true that, the first plaintiff had executed registered gift deed as per Ex.P.1 in favour of 2nd plaintiff and gifted 1 acre 36 guntas of land in Sy.No.186. Inspite of these two documents, Byanna not at all raised the objections in the earlier partition suit that the above property is his self acquired property. It means, either Byanna had purchased the above property out of the joint family nucleus or he might have permitted his 12 OS No.7403/1994 the defendants 1 to 3 are the children of late T.Venkataswamappa. Similarly, the defendants 4 to 6 are the children of late T.Muniswamappa.
13. In order to prove the case, the 2nd plaintiff has stepped the witness box as PW.1. She has reiterated the plaint averments. Ex.P.1 is the original registered gift deed dated 12.12.1983 executed by the first plaintiff in favour of the 2nd plaintiff in respect of 1 acre 36 guntas of land in Sy.No.186. Further, the first plaintiff had also executed an unregistered Will dated 17.2.1997 in favour of the 2nd plaintiff as per Ex.P.2 in respect of the property covered under Ex.P.1.
14. Ex.P.18 is the certified copy of sale deed dated 12.1.1959. The defendants 1 to 6 have also produced the original sale deed dated 12.1.1959 as per Ex.D.4. As per these documents, the first plaintiff had purchased 1 acre 36 guntas of land in Sy.No.186. It is relevant to note that, this property was included as item No.15 in the earlier suit for partition in OS No.5479/1989. 11 OS No.7403/1994
(5) Issue No.5 : In the affirmative
(6) Issue No.6 : In the affirmative
(7) Issue No.7 : In the affirmative
(8) Issue No.8 :Does not survive for consideration
(9) Issue No.9 :Does not survive for consideration
(10) Issue No.10 : In the negative
(11) Issue No.11 : In the affirmative
(12) Addl.Issue No.1 :Does not survive for consideration. (13) Addl. Issue No.2 : In the affirmative (14) Issue No.12 : As per the final order for the following:-
REASONS
11. Issue Nos.1 to 6:- For the sake of convenience, I have taken up all these issues together for common discussion.
12. The relationship is admitted. The 2nd plaintiff is the daughter of the first plaintiff. It is not in dispute that the first plaintiff, late T.Venkataswamappa and late T.Muniswamappa were sons of late Thammannappa. It is an admitted fact that during the pendency of the suit, the first plaintiff was dead and his wife Smt.Shettamma @ Akkayyamma predeceased him. Ex.P.7 is the Death Certificate of first plaintiff. Ex.P.8 is the Death Certificate of Shettamma @ Akkayyamma. It is also admitted that 10 OS No.7403/1994 defendant has been examined as Dw.1 and the documents are marked a Ex.D.1 to Ex.D.11.
8. The plaintiffs have submitted the synopsis of arguments and also relied on the Rulings reported in:-
AIR 1967 SC 591 2001 (7) SCC 549 2006(5) SCC 638 2010(3) SCC 251 ILR 2014 KAR 1619 2010(2) SCC 194 1989(2) SCC 163 1969(3) SCC 607 ILR 2003 KAR 2559
9. The defendants No.1 to 6 are also relied on the Rulings reported :-
1993(1) SCC 581 AIR 2015 KAR 204 AIR 1969 ORI 63 2006(5) SCC 566
10. My findings on the above issues are:-
(1) Issue No.1 : In the negative
(2) Issue No.2 : In the negative
(3) Issue No.3 : In the negative
(4) Issue No.4 : In the negative
9 OS No.7403/1994
7. Whether the plaintiffs prove the execution of the Kautumbika Oppandada Kararu dated 16.12.1991 by the defendants as stated in para- 9 of the plaint ?
8. Whether the plaintiffs prove that the defendants committed breach of the Kautumbika Oppandada kararu dated 16.12.1991 ?
9. Whether the defendants prove that under the agreement dated 16.12.1991, they had agreed to pay only the registration charges ?
10. Whether the plaintiffs are entitled to the relief of declaration and for cancellation of compromise decree in OS No.5479/1989 ?
11. Whether the suit is properly valued and court fee paid is sufficient ?
12. What order or decree ?
Additional Issue dated 14.12.2007:
1. Whether the plaintiffs prove that on 12.12.1983 the registered gift deed was executed by the plaintiff No.1 in favour of the 2nd plaintiff pertaining to the ancestral property. Hence, 2nd plaintiff has also interest in the suit schedule property Additional Issue dated 5.7.2017:
2. Whether the suit is barred by Limitation ?
7. The 2nd plaintiff has deposed as Pw.1 and the documents are marked as Ex.P.1 to Ex.P.34. The 1st 8 OS No.7403/1994 the compromise. The suit is barred by limitation. With these contentions, the defendants no.1 to 6 have requested to dismiss the suit with cost.
5. The defendant No.7 to 9 have appeared through their counsel and not filed the written statement. The defendants no.10 to 14 have been placed exparte.
6. From the above pleadings, the following issues are framed:-
1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties and they are in joint possession and enjoyment of the same ?
2. Whether the plaintiffs prove that the 1st plaintiff is the Kartha of the joint family ?
3. Whether the plaintiffs prove that the defendants and T.Muniswamappa prevailed over the 1st plaintiff and obtained the Release Deed dated 31.10.1989 by playing fraud ?
4. Whether the plaintiffs prove that the 1st plaintiff is entitled to 1/3rd share in the suit properties ?
5. Whether defendants prove that the 1st plaintiff executed the Release Deed dated 31.10.1989 by receiving Rs.50,000/- in lieu of his share ?
6. Whether the defendants prove that the 1st plaintiff has executed a document in favour of the 1st defendant on 25.11.1989 acknowledging the receipt of Rs.50,000/- ?7 OS No.7403/1994
plaintiffs. On 31.10.1989, the first plaintiff had executed release deed and relinquished all his rights over the joint family properties by taking Rs.50,000/-, a house property at Yeshawanthapura bearing No.7 & 8 as his share. The defendants were issued two cheques for Rs.25,000/- each to the first plaintiff at the time of execution of release deed. Subsequently, the first plaintiff had misplaced the said cheques and requested the defendants to pay cash. The defendants paid cash of Rs.50,000/- to the first plaintiff. The first plaintiff had executed separate document undertaking that he will not encash the cheque. OS No.5479/1989 was filed for partition and the said suit came to be compromised among the parties. As such, the alleged joint possession of the suit properties is only the concocted story by the plaintiffs. Being a party to the compromise, the first plaintiff has no right to institute the present suit. Nobody had played fraud on the plaintiffs. The first plaintiff had accepted C schedule property and agreed to 6 OS No.7403/1994 6/B of Chikkabanavara within three months from the date of the agreement. It was also agreed that the first plaintiff should not encash the cheque. The defendants were agreed that in the event of default to comply the agreement, the release deed dated 31.10.1989 stands cancelled and the compromise entered into between the parties in O.S.No.5479/1989 was also automatically cancelled. The defendants were failed to act in accordance with the agreement dated 16.12.1991. Therefore as per the contract, the release deed and compromise was cancelled. The plaintiffs are entitled to half share in all the suit properties. The release deed dated 31.10.1989 and the compromise in OS No.5479/1989 are liable to be cancelled. Hence, this suit.
4. The defendants 1 to 6 have filed the common written statement as under:-
The suit is not maintainable. The relationship is admitted. There is no joint family as contended by the 5 OS No.7403/1994 Thus, the suit properties are joint family properties of the plaintiffs and the defendants No.1 to 6. The 1st plaintiff has executed registered gift deed dated 12.12.1983 in favour of the 2nd plaintiff.
3. Late T.Muniswamappa had played fraud on the first plaintiff and obtained Registered Release Deed in respect of the joint family/ancestral properties by delivering two cheques of Rs.25,000/- each drawn in favour of the 1st plaintiff. Later, the second plaintiff questioned the execution of release deed by the first plaintiff. So, the Panchayath was convened, wherein plaintiffs, defendants and late Muniswamppa entered into an agreement styled as 'Koutumbika Oppandada Kararu'. As per the said document, the defendants were agreed to purchase two acres 20 guntas of land in Sy.No.93 from Srinivasa and Ramachandra and get the sale deed executed in favour of the 1st plaintiff. The defendants were further undertook to execute the sale deed in respect of 20 guntas of land in Sy.No.5/1 and 4 OS No.7403/1994 Nature of the suit (suit on Suit for partition and pronote, suit for declaration separate possession and for & possession suit for declaration injunction,etc) :
Date of commencement 8.9.2010
of recording of the
evidence
Date on which the 1.2.2019
Judgment was pronounced
Total duration Year/s Month/s Day/s
24 01 15
(JYOTHISHREE K.S)
I Addl.City Civil & Sessions Judge,
Bangalore.
JUDGMENT
The suit is for partition and declaration.
2. The facts are as under:-
One late Thamannappa had three sons. 1. Byanna (the first plaintiff) 2.T.Venkataswamppa & 3.
T.Muniswamappa. The second plaintiff is a daughter of the first plaintiff. The defendants 1 to 3 are sons late.T.Venkataswamppa. The defendants 4 to 6 are the sons of late T.Muniswamappa. During the lifetime, Thamannappa had purchased the suit properties and he was enjoying the same. Thamannappa died intestate.3 OS No.7403/1994
10. Sri.Manjunatha, Lorry driver, Sy.No.32/2, Chikkasandra village, behind railway station, Yeshwanthpura hobli, Bengaluru North Taluk.
11. Smt.Padma, major, w/o M.K.Manjunathmurthy, Lakshmipura, 1st cross, Arasikere town, Hassan district.
12. Sri.M.K.Manjunathmurthy, Major, s/o late A.Krishnappa Lakshmipura, 1st cross, Arasikere town, Hassan district.
13. Sri.Hanumanthappa, Major, S/o Muniyappa, Doddathumakur, Madurai Hobli, Doddaballapur Taluk.
14. Sri. M.D.Veenamba, Major, W/o T.P.Goma sudevaiah, No.198, 8th cross, 8th main, Hari Hareswara village, MSR Nagar, Bengaluru-560 054.
(D.1 to 6 by Indo Legal Inc., D.7,8 & 12 by Smt.K.S.Manjula, D.9 by Manjunath-Advocates, D.10,11,13 & 14: placed exparte) Date of institution of the 15.12.1994 suit :
2 OS No.7403/1994
are r/a Dasappanapalya, Chikkabanavara village, Bengaluru.
4. Sri.M.Narasimha Murthy, aged about 41 years,
5. Sri. M.Nagaraj, aged about 33 years,
6. Sri. M.Venkatesh, aged about 28 years, D.4 to 6 are the sons of late T.Muniswamappa and r/a Dasappanapalya village, Chikkabanavara, Yeshwanthpur Hobli, Bengaluru North Taluk, Bengaluru.
7. Sri. Keshavalal G.Pakur, S/o Gopal Pakur, major, Shri Ganesha Saw Mill, No.58/1, Tumkur Road, T.Dasarahalli, Near old Tollgate, Bengaluru - 57.
8. Sri. T.M.Lala, major, Sy.No.32/2, Chikkasandra Village, behind railway station, Yeshwanthpura hobli, Bengaluru North Taluk.
9. Sri.Manjunatha, major, Lorry driver, Sy.No.32/2, Chikkasandra village, behind railway station, Yeshwanthpura hobli, Bengaluru North Taluk.
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,BANGALORE CITY.(CCH.NO.2) Dated, this the 1st day of February 2019.
PRESENT Sri.K.S.Jyothishree,B.Com,LLB, I Addl.City Civil & Sessions Judge, Bangalore.
O.S.NO.7403/1994 PLAINTIFF 1. Sri.B.Byanna, Aged about 78 years, S/o late Thammannappa, r/a No.333, 16th cross, RMV II stage, Bengaluru - 560 094.
(Died during the pendency of the suit.)
2. Smt.B.Ashwathamma, W/o Sri.Jayaramaiah, D/o B.Byanna, r/a No.333, 16th cross, RMV II stage, Bengaluru - 560 094.
(By Sri.A.Y.N.Gupta-advocate) VS DEFENDANTs 1. Sri.B.V.Thammaiah, Aged 41 years,
2. Sri.B.V. Narayanaswamy, Aged about 33 years;
3. Sri. B.V.Jayaram, Aged about 30 years, D.1 to 3 are the sons of late Sri.T. Venkataswamappa and