Bangalore District Court
Sri.Chandrashekar.A vs Sri.B.C.Ankappa on 13 December, 2017
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU
NGALURU (C.C.H.No.7).
(C.C.H.No.7).
Dated This the 13th Day of December, 2017.
Dated:
Present: Ms.VELA. D.K., B.A., LL.B.(Hons.)
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No. 8 5 8 0 / 2006
Plaintiffs 1. Sri.Chandrashekar.A,
s/o.Sri.B.C.Ankappa,
aged about 28 years,
residing at No.407, 6th Cross,
Bellandur Post, Bengaluru-560037.
2. Smt.Hemavathi,
D/o.Sri.B.C.Ankappa,
W/o.Munireddy.V,
Aged about 33 years,
Residing at 251, 2nd Cross,
Opp. PCMIL, Begur Road,
Bommanahalli, Bengaluru-560068.
3. Sri.P.Shivakumar,
s/o.Papanna,
aged about 24 years,
residing at No.75, 6th Cross,
Bellandur Post, Bengaluru-560037.
4. Smt.Nanda,
D/o.Sri.Papanna,
W/o.Yellappa Reddy,
Aged about 34 years,
Residing at No.199, Yellappa Reddy,
Doddathogur, Electronic City,
Begur Post, Bengaluru-560100.
2 O.S.No.8580/2006
5. Smt.Prabhavathi,
W/o.Murali Kumar, D/o.Sri.Papanna,
Aged about 31 years,
Residing at Murali Kumar,
# 453/13, 6th 1st Main Road,
Kengeri Upanagara, Kengeri Post,
Bengaluru-560060.
6. Smt.Shobha,
W/o.L.Venkatesh Reddy,
d/o.Sri.Papanna,
Since dead, represented by her
legal representatives:
(a) Sri.L.Venkatesh Reddy,
Age 56 years,
s/o.Laxmaiah Reddy.
(b) Sri.V Hanumesh,
Age 17 years,
s/o.L.Venkatesh Reddy.
(c) V.Yogesh,
Age 15 years,
s/o.L.Venkatesh Reddy.
Plaintiffs No.6(a) to (c) are
resident at # 39/24, Thimma Reddy
Road, Appareddy Palya, Indiranagar
Post, Bengaluru-560038.
P1 to P5-by Sri. K.Sree Rangarajan, Advocate.
LRs.of P6-by Sri.K.S.Sreenivasa Iyer, Advocate.
Vs.
Defendants 1. Sri.B.C.Ankappa,
s/o.late Chinnappa,
aged about 62 years.
2. Sri.Papanna,
s/o.late Chinnappa,
aged about 58 years.
3 O.S.No.8580/2006
Defendants 1 & 2 residing at
Bellandur Village, Varthur Hobli,
Bengaluru East Taluk,
Bengaluru-560037.
3. Sri.M.Pillappa,
s/o.Munegowda, residing at 92/8,
29th Main, B.T.M. 1st Stage,
Old Madivala, Near BTM Bus Depot,
Bengaluru-560076.
4. Sri.Narayanappa,
s/o.Muniswamy,
Sri.Balaji fancy & Gift Centre,
Nagesh Reddy Building,
A.P.R.Kalyana Mantapa Cross,
Begur Main Road, Hongasandra,
Bengaluru-560068.
5. M/s.Salarpuria Soft Zone,
A partnership Firm,
Having its business at No.100,
K.H.Road, Bengaluru-560027,
Represented by its Partners:
1) M/s.Blue Heaven Griha,
Nirman (P) Ltd., a company
Incorporated under the Companies
Act 1956, having its registered
Office at 7, Chitranjan Avenue,
Kolkata-700072.
2) M/s.Orchid Griha Nirman (P) Ltd.,
a company incorporated under the
Companies Act 1956, having its
registered Office at 7,
Chitranjan Avenue, Kolkata-700072.
3) M/s.Command Constructions
(P) Ltd., a company incorporated
under the Companies Act 1956,
having its registered Office at 7,
Chitranjan Avenue, Kolkata-700072.
4 O.S.No.8580/2006
4) M/s.Well Growth Griha Nirman
(P) Ltd., a company
incorporated under the
Companies Act 1956, having its
registered Office at 7,
Chitranjan Avenue, Kolkata-700072.
The Firm is represented by its
Managing Partner,
Mr.Bijay Kumar Agarwal.
6. Smt.Papri Raj,
W/o.Sumith Kumar Raj.
7. Sri.Sumith Kumar Raj,
s/o.A.B.Rao.
6 & 7 are residing at No.M-4,
"Aishwarya", 6th Main, 11th Cross,
LIC Colony, Sector-X,
Jeevan Bhim Nagar,
Bengaluru-560075.
D1 & D2-by Sri.Kanzal S.Raghuram, Advocate.
D3 & D4-Exparte,
D5-by Sri.H.Kumaraswamy, Advocate,
D6, D7-by Sri.M.A.Sebastian, Advocate.
Date of institution of suit 20-09-2006
Nature of the suit Partition and Separate
Possession,
Mesne Profits
Date of commencement of 06-01-2011
recording of evidence
Date on which Judgment 13-12-2017
was pronounced
Total duration Years Months Days
11 02 23
5 O.S.No.8580/2006
JUDGMENT
This is a suit for Declaration that the plaintiffs are entitled for 1/6th share in the suit schedule property and for Separate Possession and Mesne Profits.
2. The case of the plaintiffs has been that, the 1st defendant to be the father of the plaintiffs 1 and 2 and 2nd defendant to be the father of plaintiffs 3 to 6. The defendants 1 and 2 are said to be sons of late Chinnappa and late Muniyamma. Chinnappa and his wife Muniyamma are said to be the members of the undivided Hindu Joint Family and have been put in joint possession during the lifetime of the father. The properties are said to have been not divided among the members of the family. In respect of the joint family properties, Sy.No.80/1, measuring one acre 34 guntas of Bellandur Village, there was said to be a sale agreement dated:13-4-1994 executed by Smt.Muniyamma, wife of Chinnappa and her major sons Ankappa and Pappanna, along with minor children Chandrashekar and Shivakumar in favour of PIllappa-defendant No.3, for sale consideration amount of Rs.1,95,000/- and paid a sum of Rs.1,90,000/- by way of cheque. Said cheque is said to not bear any number and in which bank drawn also is said to be unknown. The possession of the property was to be handedover to the purchaser-the 6 O.S.No.8580/2006 3rd defendant at the time of execution of the registration of the sale deed. The vendors are said to have delivered all the relevant original documents to the purchaser as on the date of agreement itself. In case of breach committed by either party, the party at fault was to make up the loss and consequent damages suffered by without prejudice to the right of each party to sue the other for specific performance of the contract.
On 13-4-1994, the very same vendors are said to have executed registered G.P.A. in favour of Naryanappa-the 4th defendant, wherein he was authorized to open a Bank account in the schedule bank and receive the deposit and operate the bank account. Of course, sale agreement purchaser, nor the G.P.A. holder is said to have opened any bank account in favour of land owners. Further is said to have not credited all the transaction amount in the said bank and to have used for themselves, without paying any of the money to the land owners and thereby played fraud over the land owners and sold the property to several persons and also to have drawn the BDA compensation amount of Rs.5,61,409/- by virtue of acquisition of 37 guntas in Sy.No.80/1 for Ring Road.
7 O.S.No.8580/2006The defendants 3 and 4 are said to have no right or interest over the properties which are joint family properties. Plaintiffs 1 to 6 are said to have not signed the sale transaction between defendants 3 to 5 and defendants 1 and 2. There was said to be no legal necessity to either execute the agreement of sale or the G.P.A. to the 3rd party. Agreement of sale and the G.P.A. was said to be without the previous permissionof the Court for disposal of the immovable property, which is said to be not necessary or reasonable for the benefit of the minor. Hence, alienation made in favour of defendants 3 to 5 by the 1st and 2nd defendants is said to be not binding on the plaintiffs and to be null and void and the alienation made in favour of the purchaser by the 1st and 2nd defendant is said to be neither in the interest of the joint family nor to discharge the legal necessities. The defendants 6 and 7 are said to have purchased the portion in the suit schedule property, but that sale is said to not bind the plaintiffs, as it is not for legal necessity. The suit schedule property is said to be the ancestral and joint family property, as it is not divided among the plaintiffs and defendants 1 and 2 by metes and bounds. It is said to be liable to be partitioned between the plaintiffs and defendants 1 and 2. The sale transaction if any, ought to be restricted only to individual share in the joint family property of the defendants 1 and 2. The 8 O.S.No.8580/2006 plaintiffs are said to be entitled to their legitimate share in respect of suit schedule property. It is said to be learnt that the defendants 3 to 5 to have been making hectic attempts to alienate the properties in favour of the prospective buyers taking undue advantage of the revenue entries in their names. The defendants 1 and 2 are said to have issued public notice in 'Sanje Vani' withdrawing the registered sale agreement dated:13-4-1994 bearing No.224/94-95 in favour of the 3rd defendant. Hence, caveat petition was said to be filed and thereafter the plaintiffs instituted the above suit.
3. The 1st defendant in the written statement has contended that defendant No.4 nor defendant No.5 to have fulfilled the terms and conditions stipulated in the Sale Agreement. Further that, till date, no amount, except amount paid on the date of Agreement to be paid to the vendors of Agreement of Sale dated:13-4-1994. That Agreement of Sale is said to be null and void as the purchasers not to have fulfilled the terms of the Agreement. Due to old age, is said to be unable to figure out any case. The registered sale deed No.224/94-94 is said to be not binding on the first defendant, as terms of Sale agreement to be not honoured and fulfilled. Hence, sought to sought to pass such Order as the Court deems fit.
9 O.S.No.8580/20064. The counsel for defendant No.2 has filed a Memo adopting the written statement of defendant No.1, vide Memo dated:13-3-2007.
5. The 5th defendant, in the written statement has contended that the 5th defendant to be a Partnership Firm with its partners-defendants 5(1) to 5(4). Prior to 1950, suit schedule property was said to be the part and parcel of larger area measuring 3 acres 30 guntas of Bellandur Village, owned by one Ankappa, who is said to have passed away intestate in 1958-59, leaving behind him his three sons-Chinnappa, Abbaiah and Ramaiah. Chinnappa is said to have passed away, leaving behind his wife Muniyamma and two sons- defendants 1 and 2. Prior to 1968, Abbaiah, Ramaiah and sons of late Chinnappa are said to have divided the entire family properties by oral partition, including the land bearing Sy.No.80/1. In the said partition, the suit schedule property was said to be allotted jointly to the defendants 1 and 2 and their mother-Muniyamma. An extent of one acre in Sy.No.80/1 was said to be allotted to the share of said Abbaiah and the remaining extent of 36 guntas in Sy.No.80/1 was said to be allotted to the share of said Ramaiah. Plaintiffs 1 and 2 are said to be the son and daughter of 1st defendant and plaintiff No.3 to be the son and plaintiffs 4 to 6 to be the daughters of 2nd defendant.
10 O.S.No.8580/2006The State Government is said to have acquired 15 guntas in Sy.No.81 for the purpose of laying the irrigation pipeline, vide Preliminary and Final Notification dated:6-9-1985 and 18-6-1987, respectively. Subsequent to the said partition, the entire land in Sy.No.80/1, including suit schedule property, was said to be the subject matter of number of sale transactions. Those sale transactions are said to be the registered sale dated: 24-5-1975, registered Sale Agreement dated:13-4-1994. One acre in Sy.No.80/1 was allotted to Abbaiah in the partition, was said to be sold vide registered sale deed dated:24-5-1975 in favour of Lakshmamma, who in turn is said to have entered into an understanding with the 3rd defendant to sell that portion and therefore, had executed the G.P.A. in favour of 4th defendant. The registered sale agreement dated:13-4-1994 was said to be executed by plaintiffs 1 and 3, defendants 1 and 2 and said Muniyamma is said to have agreed to sell the suit schedule property in favour of 3rd defendant for sale consideration amount of Rs.1,95,000/-. Already a sum of Rs.1,90,000/- on the execution of agreement, was said to be given and the plaintiffs 1 and 3 were said to be minors and represented by their father and natural guardian defendants 1 and
2. In pursuance of said registered sale agreement, plaintiffs 1 and 3, defendants 1 and 2 and 11 O.S.No.8580/2006 Muniyamma are said to have executed registered G.P.A. in favour of 4th defendant. 36 guntas in Sy.No.80/1 is said to have fallen to the share of Ramaiah in the partition, along with his sons and is said to have entered into an agreement to sell in favour of defendant No.3 and executed G.P.A. dated:
28-9-1994 in favour of 4th defendant. At the instance and request of the 3rd defendant, all the owners of the land in Sy.No.80/1 are said to have made separate applications before the Special Deputy Commissioner, Bangalore District, for conversion of land in Sy.No.80/1 and upon such applications before the Special Deputy Commissioner, for conversion of the land in Sy.No.80/1 and upon such applications made by the owners of the said land, the Deputy Commissioner, Bangalore District, is said to have accorded permission to use Sy.No.80/1 from agricultural purposes to residential purposes. The Conversion Order in respect of the suit schedule property and the land to belong to said Lakshmamma, were said to be based on 8-8-1991 and the order in respect of the land held by Ramaiah was said to be based on 13-8-1991. The 3rd defendant is said to have paid entire costs of the conversion in the name of respective owners. The State Government is said to have acquired further extent of one acre 3 guntas out of remaining 3 acres 15 guntas in Sy.No.80/1 for the purpose of 12 O.S.No.8580/2006 formation of Outer Ring Road by the BDA.
Thereupon, the LAO, BDA, is said to have passed Award dated:20-10-1997 in LAC No.150/95-96. In total, one acre 18 guntas out of 3 acres 30 guntas in Sy.No.80/1 was said to be acquired by the State Government and the remaining extent was 2 acres 12 guntas. Thereafter, 3rd defendant with the consent of the respective owners, is said to have formed a layout in 1992, comprising of several plots of different dimensions in the land measuring 2 acres 12 guntas. This was said to be on obtaining approval of Bellandur Village Panchayat. Further, the 3rd defendant is said to have also furnished the betterment charge and other such expenditures, including the taxes to the concerned Panchayat. In total, 15 plots were said to be formed in Sy.No.80/1 and the Village Panchayat is said to have assigned House List Numbers to all such plots. They are said to be bearing Nos.10 to 13, 80/1/16 and 80/1/17, measuring 48,494.5 square feet. The Plot Nos.14 to 20, 80/1/14 and 80/1/15 are said to be the plots formed in the remaining area of Sy.No.80/1. After formation of the layout in the said land, 3rd defendant is said to have paid the entire balance sale amount due under the aforesaid agreements of sale and requested the said owners to complete the same. All the owners of the land in Sy.No.80/1, including the family members of the plaintiffs, are 13 O.S.No.8580/2006 said to have executed various sale deeds through their G.P.A., namely, the 4th defendant, in favour of persons nominated by the 3rd defendant.
The plaintiffs 1 and 3, defendants 1 and 2 and Muniyamma, represented by their G.P.A.-the 4th defendant, are said to have sold the sital area measuring 48,494.5 square feet being the plot Nos.17 to 20, 80/1/16 and 80/1/17 formed in the schedule property in favour of one Mr.Reddy Veeranna and M/s.Olivia Apparels Pvt. Ltd. (nominees of 3rd defendant). The concerned sale deeds are all dated:24-2-1995 in respect of plot Nos.17 to 20, with Khatha Nos.610 to 613. These were said to be said to be in favour of Reddy Veeranna. The plots Nos.80/1/16 and 80/1/17 were said to be sold in favour of M/s.Olivia Apparels Pvt. Ltd. vide sale deed dated:16-3-1999. Said Ramaiah and his children, represented by their G.P.A.- defendant No.4, are said to have sold an area measuring 27,440 square feet, comprised in plot Nos.14 to 16 and 80/1/15, formed in their share in Sy.No.80/1 to Mr.Reddy Veeranna and M/s.Olivia Apparels Pvt. Ltd., The Plots sold to Mr.Reddy Veeranna are said to be bearing Nos.14 to 16 with Khatha No.607 to 609, sale deeds dated:24-2-1995, Plot Nos.80/1/15 were said to be sold to M/s.Olivia Apparels Pvt. Ltd., 14 O.S.No.8580/2006 vide sale deed dated:16-3-1999. Lakshmamma and her children, represented by the G.P.A.-4th defendant, are said to have sold the Plot Nos.10 to 13, Plot No.80/1/14, in favour of Reddy Veeranna and M/s.Olivia Apparels Pvt. Ltd., vide sale deed dated:23-2-1995 in favour of Reddy Veeranna. Plot Nos.80/1/14, 80/1/15 are said to have been sold to M/s.Olivia Apparels Pvt. Ltd., vide registered sale deed dated:16-3-1999.
Mr.Reddy Veeranna is said to have purchased site Nos.10 to 20, in all measuring 1,72,660 square feet from the family of the plaintiffs, said Ramaiah and Lakshmamma in turn are said to have conveyed the same in favour of M/s.Mascot Systems Ltd. vide sale deed dated:25-5-2001. M/s.Olivia Apparels Pvt. Ltd., who had purchased the plot Nos.80/1/14, 80/1/15, 80/1/16 and 80/1/17, is said to have in turn sold the said property in favour of M/s.Mascot Systems Ltd. vide registered sale deed dated:
25-5-2001. M/s.I Gate Solutions is said to have purchased the said sites in Sy.No.80/1 and also the entire sites of Sy.No.81/1 and 81/2 in all total 3,12,092 square feet. Subsequently, this M/s.I Gate Solutions is said to have executed an agreement dated:14-6-2004 with M/s.Blue Heaven Griha Nirman Pvt. Ltd. in respect of Khatha No. 799/80/1/81/1/81/2 (Sy.No. 80/1, 81/1 and 81/2) for consideration amount of Rs.22,36,79,266/-15 O.S.No.8580/2006
subject to survey and the sale price was said to be modified to Rs.21,87,76,492/-. In pursuance of that agreement, M/s.I Gate Solutions Pvt. Ltd. is said to have granted G.P.A. in favour of M/s.Blue Heaven Griha Nirman Ppvt. Ltd. to carry out the development work and to file necessary application before the BDA nd other planning authorities in respect of Sy.No.80/1, 81/1 and 81/2. Accordingly, the Blue Heaven Griha Nirman Ltd. is said to have filed an application to the BDA for the change of the use of the land from residential, road, transport and communication, to use to Industrial (Software). The Government of Karnataka, vide separate Orders bearing Nos.Na.Aa.E 126, 127 and 129, all dated:
29-6-2001, is said to have accorded change of use of the land. Thereby, commencement certificates dated:21-10-2004 was said to have been issued by the BDA for Industrial (Software) purpose. Subsequently an application was said to have been made by M/s.Blue Heaven Griha Nirman Pvt. Ltd. on behalf of M/s. I Gate Solutions Pvt. Ltd. in favour of Bellandur Village Panchayat for clubbing and amalgamation of all Khathas of the said lands. By an order passed by the Bellandur Village Panchayat, all the Khathas of the said lands were said to be amalgamated and assigned Panchayat Khatha No. 799/80/1/81/1/81/2, upon which, M/s.Blue Heaven Griha Nirman Pvt. Ltd., on behalf of M/s. I Gate 16 O.S.No.8580/2006 Solutions Pvt. Ltd. is said to have paid property tax and other such related taxes. Therefore, Sy.No.80/1, 81/1 and 81/2, in all is said to be measuring 3,12,092 square feet has the composite block, known as industrially converted land bearing Khatha No.799/80/1/81/1/81/2 and this is said to be bounded on East by Part of lands in Sy.Nos.80/2, 81/1 and 81/3 of Bellandur Village, West by remaining portion of lands in Sy.Nos.81/2, 83 and 84 of Bellandur Village, North by lands in Sy.Nos.85/1 and 85/3 of Bellandur Village and South by Bangalore-Varthur Outer Ring Road. Building plan was said to have been obtained subsequently and this M/s.Blue Heaven Griha Nirman Pvt. Ltd. is said to have requested M/s. I Gate Solutions Private Ltd. to convey by way of absolute sale of said properties jointly in its name and in the name of other group of companies, namely, M/s.Orchid Griha Nirman Pvt. Ltd., M/s.Commando Constructions Ltd. and that was accepted and these Companies are said to have paid entire sale consideration and were given possession of these properties. Thereafter, those lands were said to have been conveyed in favour of those Companies, vide registered sale deed dated: 30-3-2005. After the sale, the said Companies are said to have appointed the contractors to construct the building as per the plan approved by the concerned authorities and the building work is said 17 O.S.No.8580/2006 to be under progress. The said Companies are said to have entered into partnership agreement with M/s.Well Growth Griha Nirman Pvt. Ltd. and the said partnership is said to be now known as M/s.Salarpuria Softzone and the ownership of the property was said to be purchased under sale deed dated:30-3-2005 and transferred in the name of 5th defendant. Therefore, the 5th defendant is said to have become the absolute owner and in possession of the suit property and the suit property being part and parcel of composite block bearing No. 799/80/1/81/1/81/2. On account of the subsequent sale transactions and the order of amalgamation, suit schedule property is said to have been merged with the other lands in Sy.No.81/1 and 81/2. Therefore, the suit property, as described in the plaint, is said to be not in existence Further, 5th Defendant is said to have completed construction of the multistoried office building and multi level car parking in the plaint schedule properties and other properties owned by it as composite Block.
The BDA is said to have approved the plan vide LP No.8170 dated:29-12-2005. The 5th defendant is said to have paid the taxes in respect of that property to the BBMP, which has issued the Occupation Certificate in respect of entire Salarpuria Softzone built on said lands. It is said to be now known as Salarpuria Softzone. Subsequently it is 18 O.S.No.8580/2006 said to be vested with BBMP and assessed by the Corporation and assigned Municipal No.799/80/1, 81/1 and 81/2 Bellandur Mahadevapura Zone.... Further, the 5th defendant is said to have leased the office units constructed in that Softzone to the various tenants. In terms of recitals of the agreement of sale dated:13-4-1994 executed by the plaintiffs 1 and 2, defendants 1 and 2 and Muniyamma in respect of the suit schedule property, the interest was said to be acquired by the 3rd defendant and then the sites to have been formed, which was the subject matter of the sale in favour of Mr.Reddy Veeranna and M/s.Olivia Apparels Pvt. Ltd. of the year 1995-1999 respectively and the recitals of the said sale deeds are said to clearly establish that the fact of delivery of possession of the sites formed in suit schedule property to the said purchasers. Subsequently, the ownership of the sites was said to be vested with M/s.I Gate Solutions Pvt. Ltd., who is said to have amalgamated the suit schedule property along with other properties to form a single unit that was sold to defendants No.5(1) to (3) subsequently, who secured the plan and license to construct the building. Thus, the plaintiffs and defendants 1 and 2 are said to have parted with the possession in the year 1995. The ownership of the suit schedule property is said to have been validly transferred under the 1st sale 19 O.S.No.8580/2006 transaction in favour of Reddy Veeranna and M/s.Olivia Apparels Pvt. Ltd. On the date of the sale transactions, plaintiffs 1 and 2 were said to be minors and to have undivided share in the suit schedule property. They are said to have been joined as parties to the agreement of sale, G.P.A. and the sale deeds. The defendants 1 and 2 are said to have executed the said agreements, sale deeds as natural guardian of the plaintiffs. That sale was said to be for the need of the family. Therefore it is said to be binding upon the plaintiffs and defendants 1 and 2. The plaintiffs are said to be totally aware of the said transactions and thereby, estopped from raising any issue on this subject and governed by the Principles of Estoppel. The plaintiffs and the defendants 1 and 2 are said to have been staying under common roof and colluded with each other.
The plaintiffs and defendants 1 and 2 are said to be in joint possession of certain other properties and therefore the suit is said to be bad for partial partition. Mr.Reddy Veeranna and M/s.Olivia Apparels Pvt. Ltd., M/s. I Gate Solutions, being purchasers, are said to be proper and necessary parties to the above suit. So, the suit is said to be bad for non-joinder of necessary parties. The suit is said to be not maintainable as there is said to be no declaration sought for cancellation of various sale deeds.
20 O.S.No.8580/2006The joint family status of the plaintiffs, defendants and late Muniyamma was said to be up to 1995. The execution of the registered sale agreement dated: 13-4-1994, G.P.A. in favour of 4th defendant are admitted facts. The interest of the 3rd defendant in the suit schedule property is said to be created by virtue of registered agreement of sale dated:13-8-1994. Even though the plaintiffs have not signed or consented for the sale in favour of this defendant, the plaintiffs 1 and 3 are said to have been joined as parties to the earlier sale transaction. Therefore the consent of these plaintiffs were said to be unnecessary. The plaintiffs being minors, are said to have only undivided interest in the suit schedule property. The alienation is said to have taken place for family necessity and the suit schedule property was not the estate of the minor. Therefore, the permission of the Court to dispose the suit schedule property was said to be un-required. The defendants 1 and 2 being the Kartha and said to have the right to alienate the joint family property, without the consent of the plaintiffs.
After handingover the possession by virtue of the sale deeds executed by defendants 1 and 2, several sale transactions are said to have taken place and this defendant is said to be in possession of the sites formed in the suit schedule property by virtue of sale deed dated:30-3-2005 executed by the 21 O.S.No.8580/2006 previous owner of the suit schedule property, namely, M/s.I Gate Global Solutions Pvt. Ltd. The nature of the suit schedule property, therefore, is said to be not in joint ownership or possession. The plaintiffs are said to be not entitled for any right in the suit schedule property. This defendant is said to be a developer purchased vide sale deed dated:
30-3-2005. As a Developer, this defendant is said to have every right to develop the property and alienate or developmental benefits.
The narration of the facts stated above is said to be that, the possession of the suit schedule property was parted long back in the year 1995 and therefore, the property being not in existence, the present suit is said to be barred by limitation.
6. The defendants 6 and 7 in the written statement have admitted that, Muniyamma along with others, to have entered into agreement of sale dated:13-4-1994 and received sale consideration amount of Rs.1,90,000/-. The G.P.A. in favour of Narayanappa s/o.Muniyappa is admitted, but that Narayanappa was said to be the nominee of the agreement holder Sri.Pillappa. In case the G.P.A. holder had not credited all the transaction amount for the account of the owners, he is said to be entitled to sue the G.P.A. Holder. The G.P.A. was authorized for conversion of the land and develop 22 O.S.No.8580/2006 the schedule property into a layout. Accordingly, the G.P.A. holder is said to have got the property converted and invested huge amount towards conversion and development into the layout. The 4th defendant is said to have acted in terms of the G.P.A. Under clause 12 of the Hindu Minority and Guardianship Act, the permission of the Court is said to be not necessary to dispose the immovable property by the guardian of the minor children.
Therefore, the sale of the portion of the schedule property in favour of the said defendants are said to be binding upon plaintiffs and defendants 1 and 2.
The schedule property is said to be not ancestral or joint family property. It is said to have belonged to Smt.Muniyamma and under Section 14 of the Hindu Succession Act, she is said to be the exclusive owner of the property and the transactions executed by her is said to be binding upon the plaintiffs and defendants 1 and 2. The property being sold, therefore it is said to be unavailable for partition. In deed, the BDA is said to have acquired 37 guntas for the construction of the Ring Road and the BDA is said to be not made as a party, thereby, the suit is said to be bad for non-joinder of necessary parties. The paper publication is said to show that whatever act was done by the GPA holder till the date of paper publication, is said to be binding upon the plaintiffs and defendants 1 and 2.
23 O.S.No.8580/2006These defendants are said to be bonafide purchasers for valuable consideration of the portion of the land in the suit schedule property measuring 2673 square feet, vide registered sale deed dated:
5-11-2003 and registered as Document No.BNG(U) BLR(S) 15206 of 2003-04. A portion of the schedule property is said to be sold by Smt.Muniyamma and 4 others through their G.P.A. holder Narayanappa in favour of one Kallappa, vide registered sale deed dated:6-1-1999. Similarly, another portion of the property was said to be sold to one Ravindra, vide registered sale deed dated:
31-3-2003, who purchased the very same property. Kallappa and Ravindra are said to be not made as parties to the suit and that there is no cancellation of the sale deed executed by Muniyamma and others through their G.P.A. holder. It is said to be a composite property and that Mr.Ravindra had purchased the property under two separate registered sale deeds. Accordingly, these defendants are said to be its absolute owners and in possession by constructing compound wall around the property. All the revenue records are said to be standing in the name of the defendants 1 and 2.
Additional written statement has been filed by the defendants 6 and 7, contending that the portions that were sold vide sale deed dated:6-1-1999, 31-3-2003 to have been described as schedule II in 24 O.S.No.8580/2006 the sale deed dated:5-11-2003 in favour of these defendants. The portion sold by Smt.Muniyamma through the G.P.A. holder Sri.Narayanappa,is said to be measuring 1163.75 square feet in Sy.No.80/1 to P.Ravindra which is described as Schedule II in the composite sale deed dated:5-11-2003. The sale deeds in the revenue records in favour of these defendants are said to be already marked as Exhibits D3 to D19 and D25 to D32.
The plaintiffs are said to have challenged the sale deeds dated:5-11-2003 and the sale deed in favour of their vendor Sri.Ravindra in O.S.No. 9603/2006, wherein the 3rd defendant has been a party as the 1st defendant and Ravindra as the 2nd defendant and further that the defendant 6 and 7 to be the defendants 3 and 4. The reliefs sought for has been for Declaration that the sale deed dated:31-3-2003 executed by the 1st defendant in favour of 2nd defendant and the sale deed dated:5- 11-2003 to be null and void and further that they are not binding to the extent of the share of tl plaintiffs., with consequential relief of Permanent Injunction.
That suit was said to be dismissed vide Judgment and Decree dated:19-9-2011 marked as Ex.D1 and D2. Against that, RFA 2021/2011 was preferred which was dismissed on 23-7-2013. That Judgment in the Appeal is said to have attained finality as it has not been challenged.25 O.S.No.8580/2006
The relief of declaration sought against defendants 6 and 7 and their vendors in regard to the portion of the schedule properties conveyed under the registered sale deed dated:5-11-2003 is said to be binding on the plaintiffs and any relief sought for by the plaintiffs in the above suit in respect of the property conveyed under the sale deed dated:5-11-2003 in favour of these defendants is said to be barred under Section 35 of the Specific Relief Act. In O.S.No.9603/2003, the plaintiff is said to have admitted that the suit schedule property to be a part of the converted land in Sy.No.80/1 when the plaintiffs to be not in its possession, but in the above suit, the plaintiff is said to have sought for Declaration of their legitimate share in the suit schedule property, as well as for possession. Therefore, the court fee is to be paid under Section 24(a) of the Karnataka Court Fees and Suits Valuation Act, in view of the conversion of the land. The plaintiffs 1 and 3, along with defendant No.1 and 2 are said to be party to the sale deed in favour of the vendors of the defendants 6 and 7, thereby the decree in O.S.No.9603/2003 is said to be binding on the plaintiffs. Denying all the other averments of the plaint specifically, therefore, the contesting defendants have sought for the dismissal of the suit.
7. The Defendants 3 and 4 have been placed exparte, vide Order dated:8-2-2007.26 O.S.No.8580/2006
8. My Predecessor-in-Office had framed the following Issues:
1. Whether the plaintiffs prove that suit property is undivided family property of the plaintiffs and defendant No.1 and defendant No.2?
2. Whether the plaintiffs prove that alienation made by defendant No.1 and defendant No.2 in favour of defendant No.3 to defendant No.5 is not binding on the plaintiffs?
3. Whether the plaintiffs have a share in suit property?
4. Whether defendant No.5 proves the prior partition of 1968 between late Abbaiah, Ramaiah and sons of Chinnappa?
5. Whether defendant No.5 proves that the plaintiffs have validly alienated suit property?
6. Whether defendant No.5 proves that plaintiffs are estopped in view of the alienations from pleading contrary?
7. Whether suit for partial partition is not maintainable?
8. Whether suit is barred by time?
9. Whether defendant No.6 and defendant No.7 are bona fide purchasers for value?
10. Whether suit is bad for non-joinder of necessary parties?
11. What Order or Decree?27 O.S.No.8580/2006
Additional Issue framed on 17-03-2017:
12. Whether the plaintiffs prove that, the purchase of portion of suit property by defendants No.6 and 7, is not binding on plaintiffs?
9. In order to prove the case, the 3rd plaintiff has got examined himself as P.W.1 and got marked Exs.P1 to P22A. The 7TH defendant is examined as D.W.1, Authorized Signatory of defendant No.5 is examined as D.W.2 and got marked Exs.D1 to D75.
10. Heard arguments of Learned Counsel for both the parties.
11. The findings on the above Issues are as under:
Issue No.1 - in the negative, Issue No.2 - in the negative, Issue No.3 - in the negative, Issue No.4 - in the affirmative, Issue No.5 - in the affirmative, Issue No.6 - in the affirmative, Issue No.7 - in the negative, Issue No.8 - in the negative, Issue No.9 - in the affirmative, Issue No.10 - in the negative Addl. Issue No.12- in the negative, Issue No.11 - as per Final Order, for the following:28 O.S.No.8580/2006
Reasons
12. Issue Nos. 1, 2, 4 to 6, 9 and Additional Issue No.12 : The plaintiffs have claimed the suit schedule property as undivided family property of the plaintiffs and defendants 1 and 2 and that the alienation made in favour of defendants 3 to 5 by the defendants 1 and 2 to be not binding upon the plaintiffs. The 5th defendant has contended prior partition in 1968 between Abbaiah, Ramaiah and Chinnappa and that the plaintiffs to have validly alienated the schedule property, thereby estopped from pleading contrary. The 6th and 7th defendants have contended to be bonafide purchasers and therefore the plaintiffs have claimed that the purchase of the portion of the schedule property by the defendants 6 and 7 to be not binding upon the plaintiffs. These Issues being inter-linked, are therefore, discussed and answered together, in order to avoid repetition.
At the outset, it is necessary to note the description of the suit schedule property, which has been described as follows:
"All that piece and parcel of an immovable property bearing Sy.No.80/1 measuring to an extent of 1 acre 34 guntas out of total extent of 3 acres 30 guntas of Bellandur Village, Varthur Hobli, Bengaluru South Taluk, together with all appurtenances and structure standing therein and bounded on the:29 O.S.No.8580/2006
East by : Sy.No.80/2 K.B.Krishna Reddy land West by : Sy.No.80/1 Ramaiah's land North by : Sy.No.81/1 P.Narayanappa's land South by : Ambalipura Boundary."
Genealogy as per Ex.P1 is that Chinnappa and Muniyamma had 5 children. Among them, 3 are the daughters and 2 are the sons. The sons are the defendants 1 and 2. Plaintiffs 1 and 2 are the sons of defendant No.1 and plaintiffs 3 to 6 are the children of defendant No.2. It is an admitted fact that the suit schedule property is the ancestral property and that there has been execution of agreement of sale dated:13-4-1994, that G.P.A. was executed on the same date 13-4-1994 in favour of defendant No.4, at present the defendant No.5 to be in possession of the schedule property and the various sale transactions in respect of suit schedule property. From the oral evidence of P.W.1, the only fact which is stated by him is that he is not aware of all these transactions and that he became aware of the alienation, etc. only in the year 2005, whereupon has instituted the above suit. Another important admitted fact is that the alienations have taken place by the defendants 1 and 2 on behalf of the minor children. The minor children shown in the agreement of sale, G.P.A. has been only the sons plaintiff No.1 and plaintiff No.3. The daughters of defendants No.1 and 2 are not at all parties to any of the sale transactions or such related deals. But the 30 O.S.No.8580/2006 daughters, along with the sons, have instituted the suit seeking declaration that they have 1/6th share in the suit schedule properties.
P.W.1 in the oral evidence has stated that, in deed his great grand father Ankappa to own other properties, details of which is not known to him. The great grand father owned the house property and one house is said to be in his possession and the other house to be in possession of the elder brother. P.W.1 examined is the 3rd plaintiff, i.e., son of the 2nd defendant. It is interesting to note that the father defendant No.1 of plaintiffs 1 and 2 and the father defendant No.2 of plaintiffs 3 to 6 have filed a written statement in such a manner that they have sought only to pass appropriate orders as the Court deems fit. The only significant contention from their written statement is that the 4th defendant, who had entered into registered agreement of sale dated:
13-4-1994 and the 5th defendant who had obtained the G.P.A. to have never fulfilled the terms and conditions stipulated in the sale agreement. Further that there has been no amount paid, except the amount that was paid on the date of agreement to the vendors, dated:13-4-1994. Ex.P2 is the certified copy of the agreement of sale dated:13-4-1994 executed by Smt.Muniyamma w/o. late Chinnappa, defendant No.1, defendant No.2, plaintiff No.1 being minor, represented by the father defendant No.1, 31 O.S.No.8580/2006 plaintiff No.3 being minor, represented by the father and natural guardian defendant No.2 in favour of defendant No.3 and it is in regard to the suit schedule property, which is already noted above. On the very same day, there has been registered G.P.A.
-Ex.P3, which is same as Ex.D40, executed by the very same executant of Ex.P2 in favour of defendant No.4. Clauses 2 to 4 and 9 of Ex.P2 reads as follows:
" 2. The purchaser has already paid to the Vendors a sum of Rs.1,90,000/- (Rs. One lakh ninety thousand only) by cheque and the receipt of which the Vendors acknowledge herewith at the time of signing of this agreement of sale before the witnesses.
3. The entire remaining balance sale consideration shall be paid at the time of registration of the sale deed of the schedule property.
4. The entire vacant possession of the schedule property will be handed over to the purchaser only at the time of regular registration of the sale deed of the schedule property.
9. The vendors further assure and undertake with the purchaser that all the minor rights, and any other interests, claims, etc. are protected and any such claims that may arise if arises at their cost and risks out of their other assets and properties and the vendors shall keep the purchaser indemnified towards any such claims/ losses that may arise against the purchaser or against the schedule property."32 O.S.No.8580/2006
Thereby, from the above clauses it means that, possession was not handedover to the purchaser, i.e., defendant No.3. Defendant No.3 has chosen to remain Exparte in the above case. Ex.P3 is the Court of registered G.P.A. dated:13-4-1994. The relevant clauses in Ex.P3 are:
"2. To appear before the revenue authorities to file petitions applications, affidavits, statements, counter claims, demands etc. for the conversion of the schedule property from agricultural to non agricultural purposes such as residential commercial and industrial purposes etc.
3. To appear before the ULC Department, B.C.C, B.D.A, K.E.B., BWSSB, Village Panchayat, Survey Department, Police Department, concerned office of the Tahsildar, District Commissioner and various other authorities to present documents of the schedule property for obtaining the necessary permission to develop the schedule property.
4. To pay the layout/betterment charges and taxes to the concerned authorities and obtain any other endorsement.
6. To appear before the various authorities, like B.D.A, B.C.C., all Government bodies and other corporate offices to get the schedule property denotified and to get sanctions of plans for development of the schedule property on our behalf.33 O.S.No.8580/2006
8. Open Bank account in any of the schedule bank on behalf of us and to receive, deposit and operate the bank account and also to receive the award amount on behalf of us in respect of the schedule property if any.
9. It is made clear that the non mention of any specific item of work in this power of attorney, in relation to the purpose for which it is given, shall not be deemed to limit the authority or power of our attorney to do any act, deed or thing, which according to the subjective satisfaction of our attorney acting in good faith, deem fit, necessary or proper. In this connection our aforesaid attorney shall have authority and power to execute any necessary deed, document or instrument with liberty to file, present, produce or admit the same before any authority as may be found necessary.
10. To negotiate the schedule property in favour of any prospective purchaser/s partly or wholly and receive sale consideration on our behalf and also execute necessary agreement etc.
11. To execute the instrument of sale, mortgage, agreement lease and to present the instruments, to admit the execution of take delivery of the documents, in the government offices."
Thereafter, following alienations have taken place:
34 O.S.No.8580/2006Ex.P4 and its typed copy Ex.P4A, is the certified copy of the sale deed dated:24-2-1995, executed through G.P.A. holder in favour of Reddy Veeranna, which is same as Ex.D44 and the property described herein has been:
"All that piece and parcel of plot bearing No.17, Khatha No.610, survey No.80/1, situate at Bellandur Village, Varthur Hobli, Bangalore South, measuring East to West 171 feet, North to South 58 feet, totally measuring 9918 sq. ft. and bounded on the:
East by : Survey No.80/2, West by : Site No.16, North by : Sy.No.80/1, South by : Site No.18."
Ex.P5 and its typed copy Ex.P5A, is the certified copy of the sale deed dated:24-2-1995 executed through G.P.A. in favour of Reddy Veeranna, which is same as Ex.D46 and the property described herein has been:
"All that piece and parcel of site without square house/shed constructed thereon bearing No.19, Plot No.19, Khatha No.612, in survey No.80/1, situated at Bellandur Village, Varthur Hobli, Bangalore South, measuring East to West 171 feet, North to South 58 feet, totally measuring 9918 sq. ft. and bounded on the:
East by : Survey No.80/2, West by : Site No.14, North by : Site.No.18, South by : Site No.20."35 O.S.No.8580/2006
Ex.P6-Document No.7746 is the certified copy of the sale deed dated:16-3-1999 executed by the very same G.P.A. holder in favour of M/s.Olivia Apparels Pvt. Ltd. which is same as Ex.D48 and the property described herein has been as follows:
" Schedule -I All that piece and parcel of the immovable property with half square AC sheet house/shed without any civic amenities bearing Site No.80/1/16 in Sy.No.80/1, situated at Bellandur Village, Varthur Hobli, Bangalore South Taluk, measuring East to West (30+46)/2 feet, North to South (150+300)/2 feet, totally measuring 8550 sq. ft. and bounded on:
East by : Site No.80/1/17, West by : Ramaiah's land North by : Reddy Veeranna's land South by :150 ft. Ring Road.
Schedule -II All that piece and parcel of Site No.80/1/17 in Sy.No.80/1, situated at Bellandur Village, Varthur Hobli, Bangalore South taluk, measuring East to West (20+30)/2 feet, North to South (21+40)/2 feet, totally measuring 762.5 sq. ft. and bounded on:
East by : Kothanur Krishna Reddy's land West by : Site No.80/1/16 North by : Reddy Veeranna's land South by :150 ft. Ring Road."36 O.S.No.8580/2006
Ex.P7-Document No.6079 is the certified copy of the sale deed dated:6-1-1999 executed by G.P.A. holder in favour of B.S.Kallappa and the property described herein has been:
"All that piece and parcel of the immovable property in Sy.No.80/1, situated at South side of 150 feet outer Ring Road, Bellandur Village, Varthur Hobli, Bangalore South taluk, measuring East to West -South side 40 feet, North side 49 feet and North to South - East side 50 feet, North side 19 feet, totally measuring 1380 sq. ft. and bounded on the:
East by : Sy.No.80/2 West by : remaining portion in Sy.No.80/1 North by : 150 ft. outer Ring Road South by : Sy.No.12 of Amblipura Village."
The same copy if Ex.D4.
Ex.P8-Document No.18672 and the same document produced by defendant is Ex.D6, is the certified copy of the sale deed dated:31-3-2003 executed by G.P.A. holder in favour of P.Ravindra, which is same as Ex.D8, wherein the property described is:
"All that piece and parcel of the property bearing converted Survey No.80/1, converted for Residential purpose, situated at Bellandur Village, Varthur Hobli, Bangalore South taluk, now Bangalore East Taluk, measuring East to West-on the northern side 47'-5" feet, on the southern side:47'-5" and North to South-On the eastern side:22-0" feet and on the western side: 27'-0" feet and bounded on the:37 O.S.No.8580/2006
East by : Survey No.80/2 West by : remaining portion in Sy.No.80/1 North by : Ring Road South by : remaining portion of Sy.No.80/1"
Ex.P9-Document No.2370/01-02, is the certified copy of the sale deed dated:25th May 2001, document No.2370, executed by Reddy Veeranna in favour of Mascot Systems Ltd. which has the reference of the earlier sale deeds, which is same as Ex.D58 and the property sold has been:
"All that piece and parcel of converted land admeasuring 1,72,660 sq. ft. bearing Plot Nos.10,11,12,13,14,15,16,17,18, 19 and 20(together measuring 89,675 sq.ft.) formed in survey No.80/1 and plot Nos.1 to 9 (together measuring 82,985 sq.ft.) formed in survey No.81/2, both situated at Bellandur Village, Varthur Hobli, Bangalore South taluk, Bangalore District, bounded on:
East by:land in Sy.No.80/2 of Bellandur Village, West by:land in Sy.No.83 of Bellandur Village, North by:land in Sy.No.81/1 of Bellandur Village, South by : remaining land in Sy.No.80/1 of Bellandur Village, belonging to Olivia Apparels Pvt. Ltd.
The said land bears a single Khatha No.806 and is delineated within the letters F, E, D, G, H, I, J, K, L, M and F in the sketch annexed hereto. The said land is exclusive of land acquired for irrigation Pipeline."
From the above noted Schedule it means that, already there has been formation of plots and the specific plot numbers have been sold out.
38 O.S.No.8580/2006Ex.P10-Document No.7566 is the certified copy of the sale deed dated:25th May 2001 between Olivia Apparels Pvt. Ltd. in favour of Mascot Systems Ltd., which is same as Ex.D59, wherein the property sold are the plots, the details of which has been:
"All that piece and parcel of converted land admeasuring 29,903 sq. ft. comprised in survey No.80/1 (Plot Nos.80/1/14, 80/1/15, 80/16 and 80/1/17 together measuring 22,097.5 sq.ft.) and survey No.81/2, (plot Nos.81/2/21 and 81/2/22 together measuring 7,805.5 sq. ft.) both situated at Bellandur Village, Varthur Hobli, Bangalore South taluk, Bangalore District and bounded on the:
East by:land in Sy.No.80/2 of Bellandur Village, West by:land in Sy.No.81/2 belonging to Olivia Apparels Pvt. Ltd.
North by:Partly remaining land in survey No.80/1 and partly land in Survey No.81/2 both belonging to Reddy Veeranna South by : Ring Road."
Ex.P11-Document No.33956 is the certified copy of Sale deed dated: 30-3-2005 executed by M/s.I Gate Global Solutions Ltd. formerly known as Mascot Systems Ltd., in favour of defendants No.5(1) to (3), which is same as Ex.D60 and the property described has been:
39 O.S.No.8580/2006"All that piece and parcel of industrially converted land bearing Khatha No. 799/80/1/81/1/81/2, issued by the Bellandur Village Panchayat, carved out of survey Nos.81/1, 80/1 and 81/2 al of Bellandur Village, Varthur Hobli, Bangalore East Taluk, measuring 3,12,092 square feet (earlier comprising of (a) KhathaNos.799, 895, 885, 887, 889, 891 and 893, formed in survey No.81/1 (b) plot Nos. 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 formed in survey No.80/1 and Plot Nos.1 to 9 formed in survey No.81/2 and (c) plot Nos.80/1/14, 80/1/15, 80/1/16 and 80/1/17 in survey No. 80/1 and Plot Nos.81/2/21 (Part) and plot No.81/2/22 in survey No.81/2) and bounded as follows on the:
East by:Partly land in Sy.No.80/2, partly land in Sy.No.81/3 and partly remaining land in Sy.No.81/1 of Bellandur Village;
West by: remaining portion of Sy.No.81/2 and land bearing Sy.Nos.83, and 84 of Bellandur Village, North by: land in Sy.No.85/1 and 85/3 of Bellandur Village.
South by:Bangalore-Varthur Outer Ring Road."
It also shows the formation of the plots in the suit survey number.
Ex.P12-Document No.18669 is the certified copy of Sale deed dated: 31-3-2005 executed by B.S.Kallappa in favour of P.Ravindra, which is same as Ex.D5 and the property described herein has been:
40 O.S.No.8580/2006"All that piece and parcel of the property bearing No.80/1, formed in converted Sy.No.80/1, Khatha No.833/1, situated at Bellandur Village, Varthur Hobli, Bangalore South taluk, now Bangalore East Taluk, and measuring East to West -on the southern side: 40'-0" feet and on the northern side:49'-0" feet and North to South -On the Eastern side:50-0" feet and on the western side: 19'-0" feet, totally measuring 1380 sq. feet together with all rights, appurtenances whatsoever whether underneath or above the surface and bounded as follows:
East by : Survey No.80/2 West by : remaining portion in Sy.No.80/1 North by : remaining portion of Sy.No.80/1 South by :Sy.No.12 of Ambalipura Village.
Ex.P13-Document No.15206 is the certified copy of Sale deed dated: 5-11-2003 executed by P.Ravindra in favour of defendants 6 and 7, which is same as Ex.D7 and description of the property is:
" Schedule -1 All that piece and parcel of converted residential site bearing Khatha No.1099 in Bellandur Village, Varthur Hobli, Bangalore South Taluk, measuring East to West-
on the northern side 47 feet 5 inches. on the southern side 47 feet 5 inches North to South -
on the eastern side 22 feet on the western side 27 feet in all measuring 1163.75 square feet and bounded on:41 O.S.No.8580/2006
East by :remaining land in Survey No.80/2 West by :remaining portion of land in Sy.No.80/1 North by : Ring Road South by : Schedule -2 property Schedule -2 All that piece and parcel of converted residential site bearing Khatha No.833/1 in Bellandur Village, Varthur Hobli, Bangalore South taluk, measuring East to West-
on the northern side 47.5 feet on the southern side 40 feet North to South on the eastern side 50 feet on the western side 19 feet in all measuring 1509.375 square feet and bounded on:
East by :remaining land in Survey No.80/2 West by : remaining portion of land in Sy.No.80/1 North by : Schedule -1 Property South by :land in Sy.No.12 of Ambilipura village.
Composite Schedule (Schedule 1 and Schedule 2 property) "All that piece and parcel of converted residential sites bearing Khatha No.1099 and Khatha No.833/1 in Bellandur Village, Varthur Hobli, Bangalore South taluk, measuring 42 O.S.No.8580/2006 East to West-
on the northern side 47 feet 5 inches. on the southern side 40 feet North to South -
on the eastern side 72 feet on the western side 46 feet in all measuring 2673 square feet and bounded on:
East by :remaining land in Survey No.80/2 West by :remaining portion of land in Sy.No.80/2 North by : Ring Road South by : Land in Sy.No.12 of Ambilpura Village."
Ex.D7 is the same copy. In this sale deed there is reference about the purchase of this property as per Ex.P12 and that this Khatha No.833/1 was previously Sy.No.80/1, which is the suit schedule property.
Endorsement has been issued by the B.D.A., dated: 18-8-2006, which has been addressed to defendants 1 and 2, stating that 1 acre 3 guntas to have been acquired in Sy.No.80/1 for the purpose of the road and the compensation to have been distributed to the owners of the land-Muniyamma, late Chinnappa, B.C.Ankappa, Papanna, Chandrashekar s/o.Chinnappa, G.P.A.Holder and Ramaiah s/o.late Ankappa, Nanjundareddy, Munireddy, Venkatesh Reddy s/o.Ramaiah Reddy, G.P.A.holder Narayanappa, who are all the parties to 43 O.S.No.8580/2006 the sale transaction above noted and among them are the defendants 1, 2, plaintiff No.1 and plaintiff No.3.
Ex.P21 is the certified copy of Sale deed dated:
24-2-1995 and its typed copy is Ex.P21(A), which is executed by Narayanappa as G.P.A. holder in favour of Reddy Veeranna. It is document No.9068, which is same as Ex.D45 and the property described herein has been:
" All that piece and parcel site No.18, Khatha No.611 in Sy.No.80/1, situated at Bellandur Village, Varthur Hobli, Bangalore South taluk, together with one square house shed constructed thereon, bearing house list No.18, measuring East to West 171 feet, North to South 58 feet, totally measuring 9918 sq. feet, bounded on:
East by : Survey No.80/2 West by : site No.15 North by : site No.17 South by : site No.19."
Ex.P22 and its typed copy-Ex.P22A, is the certified copy of Sale deed dated: 24-2-1995 of document No.9-61, also executed by the same G.P.A. holder in favour of Reddy Veeranna, which is same as Ex.D47 and the description of the property is:
44 O.S.No.8580/2006" All that piece and parcel site with one square house shed constructed thereon bearing house list No.20 in plot No.20, Khatha No.613 in Sy.No.80/1, situated at Bellandur Village, Varthur Hobli, Bangalore South Taluk, measuring East to West (171+175)/2 feet, North to South (65+44)/2 feet in all measuring totally 9428 sq. ft. and bounded on East by : Survey No.80/2 West by : site No.14 North by : site No.19 South by : Ring Road."
Therefore, the sale deeds above noted goes to show that they have been described as the House List numbers and the Plot Numbers and the Khatha numbers in Sy.No.80/1, whereas, in the plaint the suit schedule property is only described as 1 acre 34 guntas out of 3 acres 30 guntas in Sy.No.80/1. There is no reference at all about the plots, etc. or such details which are forthcoming in the sale deeds in the schedule property. The remaining documents produced by the plaintiffs has been the RTC extracts- Exs.P16 and P17 for the years 2004-05 to 2005-06, which has the name of the 1st defendant, 2nd defendant Lakshmamma w/o.Pillappa and Ramaiah in reference to the sale, inheritance IHC 19/83-84, MR 32/83-84. The House Land Assessment extract for the year 2004-05 is Ex.P18, which has the name of I Gate Global Solutions Ltd. the reference of which is noted above in the sale deed and the description is 45 O.S.No.8580/2006 RCC house in Sy.No.81/1/81/2/80/1, extent is 319086 square feet, with particular boundaries. The Demand Register extract for the years 2004-05 with same details as per Ex.P18 is Ex.P19. Certified copy of the Mutation Register 53/95-96 is Ex.P20 and it has the reference of sale deeds noted above, dated:
2-3-1995.
Chikkamuniyamma w/o.late Chinnappa Reddy, has passed away on 18-6-2002, as per the Death Certificate-Ex.P15. Relevancy of this death certificate is that, much prior to Chikkamuniyamma to have passed away, sale deeds have been executed. It is only after the mother passed away, then, in 2005 that the suit has been instituted. Until that time these sale deeds, revenue entries have remained unchallenged. In 1995, age of the minor sons has been shown as 14 years and 6 years, respectively, pertaining to the 1st plaintiff and 3rd plaintiff.
The documents have been produced by the defendants. Ex.D3-Document No.522, is the certified copy of the G.P.A. dated:2-9-2006 executed by defendant No.6 in favour of defendant No.7. Similar such sale deed is produced as per Ex.D49, document No.9064/94-95, dated:24-2-1995 and it is pertaining to House List No.14, Plot No.14, in Sy.No.80/1 and has reference of sale deed dated:24-2-1995. Ex.D50 is the certified copy of sale deed Document No.9057, 46 O.S.No.8580/2006 wherein the property has been described as House List No.15, Plot No.15, Khatha No.608 in Sy.No.80/1 and has reference of sale deed dated:24-2-1995. Ex.D51 is document No.9059 dated:24-2-1995 pertaining to House List No.16, Plot No.16, Khatha No.609 in Sy.No.80/1 and has the reference of sale deed dated:24-2-1995. Ex.D52 is certified copy of sale deed document No.7747 dated:16-3-1999 executed by Ramaiah s/o.late Ankappa, Nanjappa Reddy s/o.Ramaiah, Muniireddy s/o.Ramaiah, Venkatesh Reddy s/o.Ramaiah and Olivia Apparels Pvt. Ltd., which has the reference of conversion order and it is pertaining to the property as follows:
" All that piece and parcel of site with half square house/shed constructed thereon bearing No.80/1/15 in Sy.No.80/1, situated at Bellandur Village, Varthur Hobli, Bangalore South Taluk, measuring East to West (46+55)/2 feet, North to South (78+133)/2 feet, totally measuring 5237 sq. ft. and bounded on East by : B.C.Ankappa's land West by : Lakshmamma's land North by : Reddy Veeranna's land South by : 150 ft. Ring Road."
Ex.D53 is the certified copy of sale deed document No.9107/94-95, House List no.10, Plot No.10 in Sy.No.80/1. Ex.D54 of certified copy of sale deed in document No.9109/94-95 pertaining to plot No.11, Khatha No.604 in Sy.No.80/1. Ex.D55 is 47 O.S.No.8580/2006 the sale deed dated:23-2-1995 of Document No.9100/94-95 House List No.12, Plot No.12, Khatha No.605 in Sy.No.80/1. Ex.D56 is the certified copy of document No.9102/94-95 also dated:23-2-1995 pertaining to House List No.13, Plot No.13, Khatha No.602 in Sy.No.80/1. Ex.D57 is the certified copy of sale deed dated:16-3-1999 of document No.7748 executed by G.P.A.holder defendant No.4 in favour of Olivia Apparels Pvt. Ltd. and the property described is:
" All that piece and parcel of site with half square house/shed constructed thereon bearing No.80/1/14 in Sy.No.80/1, situated at Bellandur Village, Varthur Hobli, Bangalore South Taluk, measuring East to West (44+77)/2 feet, North to South (86+140)/2 feet, totally measuring 7458 sq. ft. and bounded on East by : Ramaiah's land West by : Papaiah's land North by : Reddy Veeranna's land South by : 150 ft. Ring Road."
Ex.D59-Document No.2340 is the certified copy of sale deed dated:25-5-2001 between Olivia Apparels Private Limited and Mascot Systems Limited of Sy.No.80/1, Plot Nos.80/1/14, 80/1/15, 80/16, 80/1/17 and Sy.No.81/2, Plot Nos.81/2/21 and 81/2/22. Ex.D60 is the certified copy of sale deed dated:30-3-2005 in Document No.33956 by IGate 48 O.S.No.8580/2006 Global Solutions Limited in favour of M/s.Blue Haven Griha Nirmal (P) Limited and the property is:
" All that piece and parcel of industrially converted land bearing Khatha No.799/80/1/81/1/81/2, issued by the Bellandur Village, Varthur Hobli, Bangalore East Taluk, measuring 3,12,092 Square Feet (earlier comprising of (a) Khatha Nos.799, 895, 885, 887, 889, 891, and 893, formed in survey No.81/1, (b) Plot Nos.10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 formed in survey No.80/1 and Plot Nos.1 to 9 formed in survey No.81/2, and (c) Plot Nos.80/1/14, 80/1/15, 80/1/16 and 80/1/17 in survey No.80/1 and Plot Nos.81/2/21 (part) and Plot No.81/2/22 in survey No.81/2), and bounded as follows:-
On the East by: Partly land in survey No.80/2, partly land in survey No.81/3 and partly remaining land in survey No.81/1 of Bellandur Village;
West by: Remaining portion of survey No.81/2, and land bearing survey Nos.83, and 84 of Bellandur Village;
North by: Land in survey No.85/1 and 85/3 of Bellandur Village;
South by:Bangalore-Varthur Outer Ring Road."49 O.S.No.8580/2006
13. The photographs pertaining to the property have been marked as Exs.D69 to D73, with CD Ex.D74. Ex.D41 is the Sanction of conversion of one acre 34 guntas in the land of Sy.No.80/1 of Office of the Deputy Commissioner, Bangalore District, bearing No.B.DIS. ALN.SR(B)188/90-91 and it is dated:8-9-1991. This document states that sanction plan accorded to the alienation of one acre 34 guntas in Sy.No.80/1 of Bellandur for non- agricultural residential purposes in favour of defendants 1 and 2. Ex.D42 is the Official Memorandum dated:8-8-1991 bearing DIS.ALN.SR. (S)189/90-91 pertaining to sanction of conversion of one acre in Sy.No.80/1 in favour of Lakshmamma for non-residential purposes. Ex.D43 is the similar such conversion order bearing No.B.DIS.ALN.SR(S) 187/90-91, in regard to 36 guntas of Sy.No.80/1 in favour of Ramaiah.
14. From the nature of the documents discussed above, it goes to show that the property has been alienated and there has been further again alienation to the subsequent purchasers and sanction plan accorded for the conversion into non- agricultural purpose issued by the Deputy Commissioner's Office. Father defendant No.2 and defendant No.3 of the plaintiff 1 and plaintiff No.3 are parties in this Memorandum-Ex.D41.
50 O.S.No.8580/2006Exs.D8 to Exs.D32 and D37 are the certified copies of revenue documents pertaining to Encumbrance Certificate, tax paid receipts and Khatha. D.W.2 has been authorized to depose in the above suit as per Ex.D33-Board Resolution dated:
4-2-2013. Ex.D34 is the certified copy of Partition Deed dated:19-1-2006 between M/s.Blue Heaven Griha Nirman P Ltd., M/s.Orchid Griha Nirman (P) Ltd., M/s.Command Constructions (P) Ltd. and M/s.Well Growth Griha Nirman (PP) Ltd., wherein Schedule A is described as follows:
" Schedule -'A' East by:Partly land in Sy.No.80/2, partly land in Sy.No.81/3 and partly remaining land in Sy.No.81/1 of Bellandur Village;
West by: remaining portion of Sy.No.81/2 and land bearing Sy.Nos.83, and 84 of Bellandur Village, North by: land in Sy.No.85/1 and 85/3 of Bellandur Village.
South by:Bangalore-Varthur Outer Ring Road."
Ex.D35 is the certified copy of Deed of Reconstituted Partnership Deed dated:1-5-2008 between M/s.Blue Heaven Griha Nirman (P) Ltd., M/s.Orchid Griha Nirman (P) Ltd., M/s.Command Constructions (P) Ltd. M/s.Wel Growth Griha Nirman (P) Ltd., M/s.Rudranath Realtors (P) Ltd., M/s.Kalppeshwar Realtors (P) Ltd. and M/s.Tunganath Realtors (P) Ltd. and the property is 51 O.S.No.8580/2006 as per Ex.D34. Ex.D38 is the certified copy of Notification of agricultural land in Sy.No.80/1, 81/1, which is undisputed. Certified copy of registered sale deed dated:24-5-1975 is Ex.D39. Ex.D40 - Document No.742/94-95 is certified copy of G.P.A. dated:28-9-1994 executed by Ramaiah, Nanjunda Reddy, Munireddy and Venkatareddy in favour of defendant No.4 and the property described is:
" All that piece and parcel of immovable property Sy.No.80/1, measuring to an extent of 36 of Bellandur Village, Varthur Hobli, Bangalore South Taluk and bounded on East by : Sy.No.80/1 B.C.Ankappa's land West by : Lakshmamma's land North by : Sy.No.81/1 P.Narayanappa's land South by : Ambalipura Boundary."
In the written statement, these defendants have not contested the case apart from stating to pass appropriate orders. From the nature of the documents produced before the Court, it means that there has been alienation of the property as described in the schedule and that the same has been converted for non-agricultural purpose. It is admitted fact of P.W.1 that at present 5th defendant to be in possession of the suit schedule property.
52 O.S.No.8580/200615. At this juncture, it is necessary to note the oral evidence of P.W.1 adduced before the Court, which are as follows:
"It is true to suggest that Venkatesh and his children were living separately and Venkatappa was managing their family. It is true to suggest that, likewise, family of Papanna, his wife and children were managed by Papanna only. Further he has stated, it is true to suggest that if they had taken any decision, it is in the better interest of the family only. It is true to suggest that when we were young, there was no need of they taking our consent to take any acts of the family."
16. His great grand father Ankappa is said to be owner of 3 acres 30 guntas of land. Balance of extent excluding one acre 34 guntas claimed by him is said to have belonged to the other two branches of the family, i.e., brothers of the grand father, namely, late Abbaiah and Ramaiah, but they themselves have alienated the property, which is noted above. Though he has stated not to know about the partition, but he himself has stated it is true to suggest that at the said partition, one acre 34 guntas of the land in Sy.No.80/1 had fallen to the share of Muniyamma, defendant No.1, Ankappa and defendant No.2-Papanna, who are my grand mother, my father and uncle, respectively. He has also stated as follows:
53 O.S.No.8580/2006"It is true to suggest that my father had signed to the said agreement of sale for himself and on behalf of his children. He has also stated that Ankappa had signed such agreement for himself and on behalf of his son plaintiff No.1. "
Through out his evidence he has stated not to know about the agreement of sale, if the other plaintiffs had attained age of majority, about Ex.P2, sale transactions noted above, sub-division of Sy.No.80, conversion order, formation of plots and sale of plots, everything according him has come to his knowledge only in the year 2005. Further has stated, it is true to suggest that neither the family of Ankappa, nor my father have ever challenged the alienation so made till filing of the present suit. When the suit was filed, he is shown as 24 years and he was said to be minor when there were execution of G.P.A. and sale agreement in favour of defendants 3 and 4. In deed, G.P.A. is said to have been not cancelled as on date, but he does not know about that. His admitted fact that defendants 6 and 7 have purchased suit property and therefore made as parties, goes to show that possession is no longer in the family of the plaintiffs as joint possession averred in the plaint. He has also admitted about the purchase of the property by defendants 6 and 7 from one Ravindra, the sale deed of which is noted above. Two sites were said to be in possession of Ravindra 54 O.S.No.8580/2006 when the suit was filed. All the revenue records are said to have been entered in the name of defendants 6 and 7.
17. Defendant No.7 examined as D.W.1 has stated to have purchased the property from the G.P.A. holder Mr.Ravindra. He has also admitted about the agreement of sale-Ex.P2, in favour of Pillappa and that is not to have been mentioned that Narayanappa to be the nominee of Pillappa in Ex.P2. At this juncture, it is to be noted that this Pillappa is also a party to the suit as defendant No.3 and possession being not delivered at Ex.P2, it means that it was document only on paper. This defendant No.7 is said to have constructed building consisting of 5 floors in the suit property and that construction was after the final decree in O.S.No.9603/2006. He is being not aware about the interim order granted in Ex.D75. He is said to be aware that on account of alienation, contempt petition to be pending against him before the Hon'ble High Court. Authorised Signatory of defendant No.5 examined as D.W.2 has stated that defendant No.5 was converted as Joint Stock Company on 21-10-2008, for which Ex.D36 is produced and it is dated:21-10-2008. He has further stated as follows:
55 O.S.No.8580/2006"It is stated in our written statement that the defendant No.3 holds a deed of agreement of sale deed 13.4.1994 in respect of portion of survey No.80/1. It is also mentioned that the said land was converted for residential purpose under the Order of the Deputy Commissioner dated:8.8.1991. It is also stated that defendant No.3 has also paid the conversion fees."
Oliva Apparels is said to have sold the property in favour of Mascots Systems. D.W.2 has admitted that 5th defendant to have acquired title, right, etc. under the sale deed. He has also stated as follows:
"It is true that the 5th defendant is a bonafide purchaser of the suit property."
He has admitted not to have produced the sale deed executed by defendants 1 to 3 in favour of 5th defendant in respect of the suit property. In fact there is said to be no sale deed executed. The Khatha pertaining to the construction of the building in the suit property has been identified by him as Ex.D61 and the Assessment extracts have been marked as Ex.D62. The BDA, as per Ex.D64 dated:
1-8-2013 in response to RTI query-Ex.D63, stated that conversion to have been accorded for non agricultural purpose in respect of Sy.No.80/1 and 81/1 and it has been issued to the Authorised Signatory of I-Gate Global Solutions Ltd. The certified copy of the Special Power of Attorney 56 O.S.No.8580/2006 Ex.D65 has been executed in favour of D.W.2 and Ex.D5 is copy of Special Power of Attorney marked only for evidence of D.W2.
18 In respect of the litigation which has taken place earlier, Ex.D66 is the certified copy of the plaint in O.S.No.9603/2006 instituted by plaintiffs against defendants No.5, 6, 7 and Ravindra, seeking for Declaration that the sale deed dated: 31-3-2003, sale deed dated:5-11-2003 to be null and void. The property described herein is as per Ex.P13.
The certified copy of the Issues framed in that suit is Ex.D67 and Ex.D68 is the Affidavit secondary evidence affidavit pertaining to Exs.D69 to D74. Certified copy of the Judgment of this suit is Ex.D1 and it has been dismissed. The certified copy of the Decree is Ex.D2. Sale deeds which are produced in the above case are also produced in this suit. Against this Judgment, RFA 2021/2011 was preferred before the Hon'ble High Court. The appeal has been dismissed. Exs.P8 and P11 to P13 have been subsequent to the death of Muniyamma, but the sons of Muniyamma are parties to the suit and they have chosen not to contest the suit. In this regard, learned counsel for defendant No.5 has referred to the citation referred in (1996) 8 SCC 54 {Sri Narayan 57 O.S.No.8580/2006 Bal and others vs. Sridhar Sutar and others } wherein it is held as under:
"Hindu Law-Alienation-Karta or adult members of a joint Hindu family can sell/dispose of joint family property involving undivided interest of minor of the family therein-S.8 of HMGA, 1956 not attracted to such sale/disposal-S.8 has to be read conjointly with Ss.6 and 12-Scheme of the provisions stated-Hindu Minority and Guardianship Act, 1956, Ss.8 and 6 & 12.
....
Held:
With regard to the undivided interest of the Hindu minor in joint family property, Sections 6, 8 and 12 of the Act are beads of the same string and need to be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the respondent of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule 58 O.S.No.8580/2006 that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situation justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. "59 O.S.No.8580/2006
2011 SCC OnLILNE Kar. 3908{M.Harish vs. Kum.Sindhu and another} wherein it is held as under:
" 6. The argument of the Learned Counsel for the appellant is, the concept of seeking permission in case of disposal of the property of the minors as per Section 8 of the Act is only applicable to the properties to be disposed of by the guardian, if the property is available to the minors-in the usual course and not in the joint family property. To substantiate his contention, he referred to Sections 6 and 12 of the Act and also relied upon the Judgment of the Apex Court in the case of Sri Narayan Bal v. Sridhar Sutar, (1996) 8 SCC 54: AIR 1996 SC 2371: 91996 (1) ICC (S.C.) 174], wherein it is clearly held that the Joint Hindu family property in which minor had an undivided share is sold/disposed of by Karta, as per Section 8, previous permission of Court before disposing of immovable property is not required. Further, it is held that the joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the Joint Hindu Family property. Thus, Sections 6 and 12 excludes the applicability of Section 8 in so far as Joint Hindu family property is concerned.60 O.S.No.8580/2006
10. In view of the ratio laid down by the Apex Court (supra) and when it is very much clear that the respondent in/question is a Joint Hindu family property, it may not be necessary for the 1st defendant to seek prior permission of the Court before alienating the suit property. In that view of the matter, the reasoning assigned by the Trial Court in para- 35 of the Judgment that the1st defendant has not obtained any permission from the competent authority to execute the sale deed and sold the properties of the minor plaintiffs, appears to be without reference to Sections 6 and 12 of the Act. Moreover, in the case, on hand, the suit property Item No.1 is not exclusively available to the plaintiffs since they are minor children. For the welfare of the minor children, the 1st defendant has sold the suit property in favour of the 2nd defendant. In the circumstances, the appeal is allowed. The impugned Judgment and decree passed by the Trial Court is set-aside. "
The written statement of defendant No.5 is signed by Special Power of Attorney. This P.W.1 in the oral evidence has indeed stated about the partition whereby has claimed only to the extent as per suit property. The remaining extent according to him belonged to other branches of the family. The defendant No.1, defendant No.2 as Karta, have executed the G.P.A. and thereby the sale transaction have taken place. The right of the minor in the Joint 61 O.S.No.8580/2006 Family property is only of undivided interest. At this stage it is necessary to refer the citations reported in 2012(1) SCC page 656 {Suraj Lamp and Industries Private Limited (2) Through Director vs. State of Haryana and Another} wherein it has been held as under:
"However, certain protections granted to SA/GPA/Living will transactions entered into, prior to date of present judgment."
Further in Para Nos.26 and 27 it is held as follows:
"26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/will transactions" may also be used to obtain specific performance or to defend possession under Section 53-A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to 'SA/GPA/will transactions" have been accepted/ acted upon by DDA or other developmental authorities or by the municipal or Revenue 62 O.S.No.8580/2006 Authorities to effect mutation, they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For examine, a person may give a Power of Attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments development agreements and Power of Attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/will transactions" are not intended to apply to such bona fide/genuine transactions. "
19. The plaintiff No.1 and plaintiff No.3, as per Ex.P4A, are shown as aged 14 years and 6 years respectively, as on 24-2-1995. The suit has been instituted in 2006. As on the date of institution of the suit, the age of the 1st plaintiff and 3rd plaintiff is shown as 28 and 24 years respectively. Age of 1st plaintiff in Ex.P4A is shown as 14 years and 10 years 63 O.S.No.8580/2006 less from the date of the institution of the suit in 1995 means, he was about 18 years in 1995, because, his age is shown in 2006 is shown as 28 years for instituting the suit. Similarly, age of the 3rd plaintiff is shown as 6 years in Ex.P4A. His age in the suit is shown as 24 years less 10 years, means he was about 14 years. In respect of the ancestral property, right of the minors is only undivided interest. The manager of the joint family can alienate the joint family properties so as to bind the interest of the minor coparceners. Such alienation has to be for legal necessity or for the benefit of the estate. In the written statement, as above noted, the 1st and 2nd defendants have in deed stated not to have alienated any property pertaining to the joint family property. Though there was agreement of sale dated:13-4-1994, the purchasers are said to have not fulfilled the terms of that agreement of sale. Further that, in regard to the registered document bearing No.224, which is Ex.P2, terms of the same were said to be not honoured or fulfilled. But, Ex.P2 has been executed in favour of defendant No.2, who is very much a party before the suit and not contested the suit. Therefore, defendants 1 and 2 cannot be concerned to this Ex.P2. But that is a registered document. Irrespective of the same, on the same date, this Ex.P3 has been executed. Based upon that, the subsequent sale transactions noted 64 O.S.No.8580/2006 above has taken place. Thereby, the basis for the sale is the registered G.P.A. Ex.P3. The right claimed by the minor has been on the ground that the suit property is the ancestral property. The scope of the suit has been only for Partition and Separate Possession. Possession, admittedly, is not at all with the plaintiffs, because there is change in the structure of the suit schedule property on account of number of plots constructed, for which concerned documents have been produced by the defendants. A minor, on attaining the age of majority, has to challenge those sale deeds. The relief sought for by the plaintiff is not challenging those sale deeds. In respect of undivided interest in the ancestral property of the minor, the kartha can alienate the property.
Much prior to the said rulings, the alienation has already taken place in the year 1995 itself.
Another important fact is that the suggestion to D.W.2 indeed has been that G.P.A. Holder had executed sale deed in favour of 5th defendant. Existence of joint family property is not forthcoming in the materials placed before the Court. Moreover, D.W.2 himself has stated that the 5th defendant to be the absolute owner, as well as the bonafide purchaser of the property. It is in fact the suggestion put-forth to him.
65 O.S.No.8580/200620. In the citation relied upon by the learned counsel for the defendants reported in (2016) 4 SCC 68 {Uttam vs. Saubhag Singh} : 2016 SCC OnLine SC 212 wherein it is held as under:
" Family and Personal Laws-Hindu Succession Act, 1956-Ss.6 proviso (as it stood prior to amendment in 2005), 8, 4, 19 and 30- Sucession to joint family property prior to 2005 amendment-Principles summarized- When male Hindu, having interest in Mitakshara coparcenary property, died intestate after commencement of HAS, leaving behind a Class I female heir (his widow in present case) and sons, then by operation of proviso to S.6 deceased's interest in coparcenery property would devolve by intestate succession under s.8 and not by survivorship under S.6-After devolution of joint family property as per S.8 HAS upon death of male Hindu intestate, property would cease to be joint family property and said female heir and other coparceners succeeding to the same would hold their respective share in property as tenants-in-common and not as joint tenants-Therefore, grandson born after death of the male Hindu cannot maintain suit for partition claiming his share by division of alleged joint family property."66 O.S.No.8580/2006
In (2001) 6 SCC 163 {Vishwambhar vs. Laxminarayan} it is held as under:
" A. Hindu Minority and Guardianship Act, 1956-Ss. 8(1), 8(2), 8(3) and 8(4)-Challenge to alienation by natural guardian of property of minor without court sanction and without legal necessity-Such alienation is voidable and not void ab initio-Proper relief must be sought and within limitation period-Where plaintiffs had filed a suit for possession contending that sale deeds executed by their mother-guardian were void, inoperative and not binding on them as alienation had been affected without court permission under S.8(2) and without legal necessity, but had added a prayer for setting aside the Sale deeds only after the expiry of the limitation period under Art.60, held, the Sale deeds were voidable under S.8(3) subject to Art.60 of Limitation Act- Therefore, even through trial court and first appellate court had concurrently found that there was no legal necessity for the transfer, the suit of the appellant-plaintiffs was rightly dismissed-High Court rightly dismissed their second appeal-Limitation Act, 1963, Arts. 60 and 65-Alienation by guardian-Suit for possession-Civil Procedure Code, 1908, Or.2 R.2, Or.6 Rr.2 & 17-Pleadings-Proper relief- Amendment."67 O.S.No.8580/2006
Written Arguments are filed by the counsel. In view of the facts and circumstances of the case, the plaintiffs are not entitled to the reliefs claimed for. Consent of minor cannot arise for undivided interest in joint family.
The benefit of citations referred by learned counsel for defendants in: 1997 SCC OnLine Kar.554: 2009(15) SCC 184 (M.Yogendra and others vs. Leelamma N and others), (1986) 3 SCC 567 (Commissioner of Wealth Tax, Kanpur and others vs. Chander Sen and others), (1999) 1 ICC 93 {Tukaram vs. Sambhaji}, 1942 SCC OnLine Bom 101: AIR 1942 BoM 339: (1942) 44 Bom LR 727 {Hirachand Himatlal Marwari vs.Kashinath Thakurji Jadhav}, (2014) 2 SCC 269 : (2014) 2 SCC (Civ) 66 : 2014 SCC OnLine SC 20 {Union of India vs. Vasavi Coop.Housing Society Ltd.,}, (1996) 6 SCC 660 {United Bank of India vs. NareshKumar}, AIR 1998 Del.204 {Asman Investment Ltd. vs. K.L.Suneja}, 2016 SCC Online Bom 7025 {Sai Service Station Ltd. vs. Shri Ratnakar M.Chopdekar}, (2011) 11 SCC 275 (K.K.Vesusamy vs. N.Palaniswamy), 2015 SCC OnLine Bom.3645: 2015 4 Mah.L.J. 885 (Mukund Iron Staff Association Co.Op.Housing Soceity Ltd., Bombay versus Vasant Ramchandra Patil (since deceased) through Legal Heirs Mrs.Sandhya Prashant Koli and others), (2016) 2 SCC 36 {Prakash and others vs. Phulavati and others}, MANU/ SC/0264/1996=AIR 1966 SC 1332 {Sheodan 68 O.S.No.8580/2006 Singh vs. Smt.Daryao Kunwar}, ANU/SC/0003/1958 =AIR 1958 SC 886 {Raia Begum vs. Sahebzadi Anwar Begum and Ors.}, MANU/GJ/0033/1961=AIR 1961 GuJ 68 {Appellants: In Re:Krishnakant Maganlal}, MANU/PH/ 0146/1983=AIR 1983 P&H 114 {Surta Singh vs. Pritam Singh}, MANU/TN/2664/2002=AIR 2003 MAD/129 {G.Murugan and Ors. Vs. Manickam}, cannot be availed, in view of the facts and circumstances of the present case.
Accordingly, Issue Nos.1 and 2 and Additional Issue No.12 are answered in the negative. Issue Nos.4 to 6 and 9 are answered in the affirmative.
21. Issue No.3 : There is no joint family, consequently, being entitled for share cannot arise and this Issue is answered in the negative.
22. Issue No.7: The suit is filed for Partition and Separate Possession of suit property as described in plaint. Hence, benefit of citation reported in ILR 1998 Kar.681 (Sri Tukaram vs. Sri Sambhaji & Ors.) cannot be availed. What are the details of other properties, is not produced and this Issue is answered in the negative.
69 O.S.No.8580/200623. Issue No.8: Right for partition is absolute right and it could be filed at any time. Taking into consideration the nature of the relief claimed by the plaintiff, this Issue is answered in the negative.
24. Issue No. 10: Main sharers are only sufficient to seek for partition. Right of purchasers if any could be decided in F.D.P. Hence, this Issue is answered in the negative
25. Issue No.11 : Due to the findings as above, the following:
ORDER Suit of the plaintiff is dismissed.
In the circumstances of the case, parties to bear their own costs.
Draw Decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 13th day of December, 2017.) (VELA.D.K.) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.70 O.S.No.8580/2006
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1 P.Shiva Kumar List of witnesses examined for defendants:
D.W.1 Sumit Kumar Ray D.W.2 Ashwin Sancheti
List of documents exhibited for the plaintiffs:
Ex.P1- Family Tree Ex.P2- Certified copy of Agreement of Sale dtd: 13.4.1994 Ex.P3- Certified copy of GPA dtd:3.4.1994 Ex.P4- Certified copy of Sale deed dtd:24.2.1995, Ex.P4(A) -Typed copy Ex.P5- Certified copy of Registered Sale Deed dtd: 24.2.2002 Ex.P5(A)-Typed copy Ex.P6- Certified copy of Registered sale deed dtd: 24.2.95 Ex.P7- Certified copy of Sale deed dtd: 24.2.95 Ex.P8- Certified copy of Sale deed dtd: 21.3.2003 Ex.P9- Certified copy of sale deed dtd: 25.5.2001 Ex.P10-Certified copy of Sale deed dtd: 25.5.2001 Ex.P11- Certified copy of Sale deed dtd: 30.3.2005 Ex.P12- Certified copy of Sale deed dtd: 31.3.2005 Ex.P13- Certified copy of Sale deed dtd: 5.11.2003 Ex.P14- Endorsement issued by BDA dtd: 18.8.2006 71 O.S.No.8580/2006 Ex.P15-Death Certificate of Chikkamuniyamma Exs.P16 & P17- RTC extracts Exs.P18 & P19-Assessment Extracts Ex.P20-Certified copy of Mutation Extract Ex.P21- Certified copy of Sale deed dtd: 24.2.1995 Ex.P21(A) - Typed copy Ex.P22- Certified copy of Sale deed dtd: 24.2.95 Ex.P22(A) - Typed copy List of documents exhibited for defendants:
Exs.D1 & D2-certified copy of Judgment and Decree in O.S.No.9603/1996 Ex.D3- certified copy of GPA dated:2-9-2006 executed by Defendant No.6 in favour of defendant No.7.
Ex.D4- certified copy of sale deed dtd. 6/1/1999 Exs.D5 & D6- certified copy of sale deed dtd.
31/3/2003 Ex.D7- certified copy of sale deed dtd. 5/11/2003 Exs.D8 to D19- certified copy of katha extracts Exs.D20 to D24- certified copy of Encumbrance Certificates Exs.D25 to D32- certified copy of tax paid receipts Ex.D33- copy of Board Resolution dated 4.2.2013 authorizing D.W.2 to conduct this case Ex.D34- Certified copy of Partnership Deed dated 9.1.2006 Ex.D35- Certified copy of Deed of Reconstitution dated 1.5.2008 72 O.S.No.8580/2006 Ex.D36-Certificate of Incorporation dated 21.10.2008 Ex.D37- certified copy of Inheritance Certificate (IHC) No.19 of 1983-84 issued by Tahsildar, Bangalore East Taluk, K.R.Puram.
Ex.D38- Final Notification dated 19.6.1987issued by Additional Secretary of Land Acquisition, Revenue Department.
Ex.D39- Certified copy of registered sale deed dated 24.5.1975 Ex.D40- Certified copy of registered GPA dated 28.9.1994 Ex.D41- Certified copy of Conversion Order dated 8.8.1991 Ex.D42- Certified copy of Conversion Order dated 8.8.1981 passed by Special Deputy Commissioner, Bengaluru District, to an extent of 1 acre in Sy.No.80/1 of Bellandur Village, Varthur Hobli, Bengaluru. Ex.D43- Certified copy of Conversion Order dated 13.8.1981 passed by Special Deputy Commissioner, Bengaluru District to an extent of 36 guntas of Sy.No.80/1.
Ex.D44- Certified copy of the registered sale deed dated 24.2.1995 Ex.D45- Certified copy of registered sale deed dated 24.2.1995 Ex.D46- Certified copy of registered sale deed dated 24.2.1995 Ex.D47- Certified copy of registered sale deed dated 24.2.1995 Ex.D48- Certified copy of registered sale deed dated 16.3.1999 Ex.D49- Certified copy of registered sale deed dated 4.2.1995 73 O.S.No.8580/2006 Ex.D50- Certified copy of registered sale deed dated 24.2.1995 Ex.D51- Certified copy of registered sale deed dated 24.2.1995 Ex.D52- Certified copy of registered sale deed dated 16.3.1999 Ex.D53- Certified copy of registered sale deed dated 23.2.1995 Ex.D55- Certified copy of registered sale deed dated 23.2.1995 Ex.D55- Certified copy of registered sale deed dated 23.2.1995 Ex.D56- Certified copy of registered sale deed dated 23.2.1995 Ex.D57- Certified copy of registered sale deed dated 16.3.1999 Ex.D58- Certified copy of registered sale deed dated 25.5.2001 Ex.D59- Certified copy of registered sale deed dated 25.5.2001 Ex.D60- Certified copy of registered sale deed dated 30.3.2005 Exs.D61 & D62- Khata certificate and Khatha extract dated:19-8-2013 issued by Asst.Revenue Officer, Marathalli Division, BBMP, Bengaluru.
Ex.D63- Application filed to BDA Ex.D64- Commencement certificate issued by BDA dated:21-10-2004 Ex.D65- copy of SPA dtd;8-11-2006 Exs.D66 & D67 Certified copy of plaint and Issues in OS.No.9603/06 Ex.D68 Certificate u/s 65B for photos and CD Exs.D69 to D73 -Five photos 74 O.S.No.8580/2006 Ex.D74 CD Ex.D75 Certified copy of Judgment in RFA No.2021/11 (VELA.D.K.) XXII Addl. City Civil & Sessions Judge, Bengaluru.
75 O.S.No.8580/2006....-2017 Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
Order XXXXXXXXXXX XXII A.C.C. & S.J., Bengaluru.