Bangalore District Court
Sri. D.R.Hanumantharaju vs Smt.D.R.Premaleela on 20 February, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL & SESSIONS
JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 20th DAY OF FEBRUARY, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.4165/1998 c/w O.S.No.7731/2009
PLAINTIFF/S : Sri. D.R.Hanumantharaju,
in O.S.No.4165/1998 S/o Late D.Ramaiah Setty,
Hindu major,
R/at New No.255, Old No.236,
Chamarajpet,
Bangalore - 560 018.
(By Sri.NPK, Advocate)
--Vs.---
DEFENDANT/S : 1. Smt.D.R.Premaleela,
in O.S.No.4165/1998 D/o D.Ramaiah Setty,
Hindu major,
2. Smt.D.R.Sathyaleela,
Since dead by LRs (1) & (3)
3. Smt.D.R.Sundaralakshmi,
D/o D.Ramaiah Setty,
Hindu major,
All are residing at No.255,
(Old No.236),
2 O.S.No.4165/1998 c/w O.S.No.7731/2009
III Main road,
Chamarajpet,
Bangalore - 560 018.
(D1, D3 By Sri.KS, Advocate
D2 dead)
PLAINTIFF/S :1. Smt.D.R.Premaleela,
in O.S.No.7731/2009 Aged about 69 years,
2. Smt.D.R.Sathyaleela,
Aged about 69 years,
Since deceased by LRs the plaintiff
No.1 and 3
3. Smt.D.R.Sundaralakshmi,
Aged about 66 years,
All daughters of late
D.Ramaiah Setty,
And all are residing at No.255,
III Main, Chamarajapet,
Bangalore - 560 018.
(By Sri.KS, Advocate)
--Vs.---
DEFENDANT/S : 1. Sri. D.R.Hanumantharaju,
in O.S.No.7731/2009 S/o Late Sri. D.Ramaiah Setty,
aged about 77 years,
R/at No.255,
III Main, Chamarajpet,
Bangalore - 560 018.
2. Sri.P.R.Srinivasa Babu,
Aged about 55 years,
3 O.S.No.4165/1998 c/w O.S.No.7731/2009
3. Smt.P.R.Shantha Kumari,
Aged about 53 years,
4. Sri.P.R.Viswanath,
Aged about 51 years,
5. Smt.P.R.Shashikala,
Aged about 49 years,
6. Sri.P.R.Prakash,
Aged about 47 years,
7. Sri.P.R.Shekar,
Aged about 45 years,
8. Smt.P.R.Usha,
Aged about 43 years,
Defendants No.2 to 8 are children of
Late Smt.P.R.Sarojamma,
R/at No.254, III Main,
Chamarajapet,
Bangalore - 560 018.
9. Sri.D.H.Pralash,
S/o Sri. D.R.Hanumantharaju,
Aged about 49 years,
At No.255, III Main,
Chamarajapet,
Bangalore - 560 018.
10. Sri.D.H.Manohar,
S/o D.R.Hanumantharaju,
Aged about 46 years,
At No.255, III Main,
Chamarajapet,
Bangalore - 560 018.
4 O.S.No.4165/1998 c/w O.S.No.7731/2009
(D1 By Sri.NK, Advocate
D2 to D8 - Exparte
D9, D10 by Sri.MRV, Advocate)
Date of institution of suit
in O.S.No.4165/1998 : 27.05.1998
Date of institution of suit
in O.S.No.7731/2009 : 04.11.2009
Nature of suit : Declaration &
in O.S.No.4165/1998 possession
Nature of suit : Partition
in O.S.No.7731/2009
Date of commencement
of recording of evidence : 16.07.2005
in both O.S.No.4165/1998
& O.S.No.7731/2009
Date on which the judgment 20.02.2016
was pronounced :
Duration of the suit: year/s month/s day/s
in O.S.No.4165/1998 18 08 24
Duration of the suit: year/s month/s day/s
in O.S.No.7731/2009 07 03 16
* * * * *
5 O.S.No.4165/1998 c/w O.S.No.7731/2009
JUDGMENT
The plaintiff has filed O.S.No.4165/1998 to declare him as the owner of 'B' schedule property which is part of 'A' schedule property and seeking directions to defendants or anyone of them who is found to be in possession of the 'B' schedule property to deliver possession of the same to him and O.S.No.7731/2009 is filed seeking for partition by dividing the suit schedule properties by metes and bounds by allotting 3/5th share to them, to declare the gift deed executed by defendant No.1 in favour of defendant No.9 in respect of a portion of schedule 'C' property as null and void and not binding upon them and also to declare the gift deed executed by defendant No.1 in favour of defendant No.2 in respect of portion of the schedule 'C' property as null and void and for mesne profits.
2. The case of the plaintiff in O.S.No.4165/1998 is as under:
That the plaintiff and defendants are son and daughters of late D.Ramaiah Setty. It is further contended that plaintiff 6 O.S.No.4165/1998 c/w O.S.No.7731/2009 and his father D.Ramaiah Setty jointly purchased the entire property bearing old No.235-236, then numbered 254-255, III Main road, Chamarajapet, Bangalore city, under registered sale deed dated 12/5/1956. It is further contended that D.Ramaiah Setty wanted to divide the said property by metes and bounds, as such plaintiff and his father divided their property under registered partition deed dated 29/3/1965. It is further contended that under the said partition 'A' schedule property of the partition deed was allotted and taken to the share of the father of the plaintiff D.Ramaiah Setty and 'B' schedule property of the said document was allotted to and taken to the share of the plaintiff with common passage to both, etc. The said portion out of the entire property allotted to the share of plaintiff measuring 30 ½ x 60, new No.255, III Main, Chamarajpet, Bangalore.
3. It is further contended that after the said partition the revenue records are made out in the name of plaintiff and he has been paying outgoings and exercising all rights of ownership. It is further contended that plaintiff has also spent 7 O.S.No.4165/1998 c/w O.S.No.7731/2009 amounts and also improved the said property, as such the plaintiff is the full, absolute and exclusive owner in possession and enjoyment of 'A' schedule property and none else has any right, title or interest to any extent in any manner whatsoever including the rights in common portions mentioned in the partition deed. It is further contended that the plaintiff is also in possession of the lumbar room in common passage.
4. It is further contended that when the matter stood like this, the father of the plaintiff, D.Ramaiah Setty was not well and died in the year 1986. The defendants being his daughters continued to reside in the said ground floor allotted to father D.Ramaiah Setty, after the death of father intestate. Plaintiff and his family members are residing in I floor of property belonging to him. It is further contended that the defendants who are sisters of plaintiff requested plaintiff in the year 1990 to accommodate them to use two rooms in the first floor of the property belonging to plaintiff for the purpose of sleeping, etc., as there was dearth of accommodation to them and plaintiff taking pity on defendants allowed them to use, as 8 O.S.No.4165/1998 c/w O.S.No.7731/2009 such the defendants are in possession of the said two adjoining rooms in the first floor of 'A' schedule property since 1990. It is further contended that the said two rooms, measuring 13 ½ x 18 in the first floor of 'A' schedule property is in occupation of the defendants. It is further contended that as the family of plaintiff grew, plaintiff requested defendants to deliver possession of 'B' schedule property in their occupation, as there was dire necessity for his family. Defendants have developed a hostile attitude and have not heeded to the request of plaintiff. In vengence defendants in collusion tried to obstruct the usage of common passage by plaintiff and his tenants, so the plaintiff instituted suit for injunction in O.S.No.3052/1993 against the defendants and the said suit is pending in CCH-10 and interim order is operating against the defendants. It is further contended that the defendants have also instituted another suit for injunction in O.S.No.8209/1997 against the plaintiff herein putting forward false and untrue allegations and the said suit is also pending in CCH-10.
9 O.S.No.4165/1998 c/w O.S.No.7731/2009
5. It is further contended that the plaintiff being the owner of the property entire 'A' schedule is entitled to possession of the said two rooms (B schedule property) which is portion of 'A' schedule property from the defendants, as the defendants have no right to be in possession of the same. It is further contended that the defendants are liable to deliver possession of the 'B' schedule property to the plaintiff. It is further contended that inspite of repeated requests and demands, the defendants have failed to deliver possession of the 'B' schedule property. It is further contended that the property is situated in Chamarajpet and the 'B' schedule property will fetch atleast Rs.250/- per month if let out and the defendants, who are in possession of the same are liable to pay plaintiffs mesne profits atleast from the date of refusal to deliver possession from December 1997 until delivery of possession at the rate of Rs.250/- per month, as such plaintiffs also prays for enquiry under Order 20 Rule 12 C.P.C. So in view of his above contention he has come up with the present suit and accordingly prays for to decree the suit. 10 O.S.No.4165/1998 c/w O.S.No.7731/2009
6. In pursuance of the suit summons sent by this court the defendants appeared before the court through their counsel and filed their detailed written statement by denying all the plaint averments.
7. The defendants in their written statement contended that the suit of the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed. They further contended that the property No.235-236, have been numbered as 254-255, III Main road, Chamarajpet, Bangalore city, purchased by their father. So also they admitted with regard to the registered partition deed dated 9/3/1965 and the portions of the properties fallen to the respective shares of the sharers and also admit with regard to the factum of 'A' schedule property fallen to the share of plaintiff in the said partition. They further contended that the plaintiff earlier to his marriage and also after his marriage, which took place in the year 1952 was working in a partnership firm called as "Malakala Shiva Ramaiah Setty and Sons" on salary of Rs.50/- per month upto the year 1996. It is 11 O.S.No.4165/1998 c/w O.S.No.7731/2009 further contended that the plaintiff had no income and source to construct the building on the schedule property. Infact it is the defendant and their mother who contributed their jewelry and out of the sale proceeds the ground floor building constructed in the year 1966 and the 1st floor of the building constructed in the year 1963-64, the plaintiff had no money at that time and he has not made any contribution for the construction of the building. It is further contended that on 2/9/1966 the joint family business was started in the name and style "D.R.Hanumantharaju and Company" at No.65, I cross, New Tharagupet, Bangalore - 560 002, and later the business shifted to Yeshwanthpur in the year 1980, since the partnership firm was allotted the shop in the RMC yard. The plaintiff and his father were the partners of the said firm. It is further contended that defendant No.3 Sundara Lakshmi contributed a sum of Rs.30,000/- and the defendant No.2 Sathya Leela contributed Rs.12,500/- which were deposited in the partnership firm towards capital on 6/10/1995 and it was agreed to pay interest at 1% per month to them, but till today 12 O.S.No.4165/1998 c/w O.S.No.7731/2009 no interest is paid to them even though the partnership firm is earning good income and profits.
8. It is further contended that the father of the plaintiff and defendants died in the year 1986 and after the death of father of plaintiff and defendants became the partners by succession, but the plaintiff has not paid any profit to the defendants and he is alone enjoying the profits. It is further contended that the plaintiff has failed in his duty to help the defendants in any manner after the death of the father and also he has not provided any food to the defendants and they are starving.
9. It is further contended that the plaintiff also not made any efforts to perform the marriage of the defendants and settle in their life. Since the defendants have contributed money for business and also construction of the first floor premises, they are entitled to remain and continue in occupation of the two rooms in the first floor without rent. It is further contended that the defendants have been in 13 O.S.No.4165/1998 c/w O.S.No.7731/2009 continuously uninterrupted possession and enjoyment of the first floor two rooms from the year 1963-64 till date to the knowledge of the plaintiff. Thus the defendants have perfected their right and title to the suit schedule property by law of adverse possession. It is further contended that D.Ramaiah Setty was doing business at old Tharagupet, Bangalore. The government passed an order that whole sale grant business should be shifted to APMC yard, Yeshwanthpur, Bangalore and the shop was allotted to the firm name called "M/s. D.R.Hanumantharaju and Company", which is a registered partnership firm with the partners namely D.Ramaiah Setty and the plaintiff. It is further contended that there was good business and the income from the said business was being utilized for the welfare of the entire family. The business in the shop at old Tharagupet was being continued in the name of M/s.Prakash Traders and D.R.Hanumantharaju and company.
10. It is further contended that in the year 1962-63, D.Ramaiah Setty had constructed building of ground and first 14 O.S.No.4165/1998 c/w O.S.No.7731/2009 floor in the hind portion out of his savings and also the sale proceeds of his wife's jewels. After the construction of the building all the family members namely the father, mother and their son, i.e., plaintiff and daughters, i.e., defendants were living jointly in the said newly constructed building. The father was the kartha of the family and he was managing the affairs of the family and the property. It is further contended that even the sister of Sri.D.Ramaiah Setty namely Smt.Ramalakshmamma and her husband Sri.Nagaiah Setty were living together with the family of plaintiff and the defendants. It is further contended that subsequently the said Ramalakshmamma and Nagaiah Setty died in the year 1976- 1980 respectively. So it is contended that the defendants have been continuously living in the said two rooms right from the date of construction as family members. At no point of time the defendants had requested the plaintiff to accommodate them in the two rooms of the first floor and there was no such necessity for them to request to accommodation with the plaintiff.
15 O.S.No.4165/1998 c/w O.S.No.7731/2009
11. It is further contended that infact the defendants are residing in the first floor in their own rights having contributed funds for construction of the building and they are in continuous uninterrupted peaceful possession and enjoyment of the said premises from the date of its construction in the year 1963-64 till date. The defendants have perfected the right and title to the suit schedule properties by law of adverse possession, as such the plaintiffs have no locus standi to file the present suit seeking declaration and possession of the first floor premises against the defendants. It is further contended that the mother of the defendants died on 10/9/1976 and their father died on 13/3/1986. Even after the death of their parents, the defendants continued to reside in the first floor two rooms, i.e., B schedule property in their own rights without any let or hindrance from anybody much less the plaintiff. It is further contended that the defendants are all spinsters. During the life time of their father, he was looking after the defendants and after the death of the parents of defendants, the plaintiff looked after the welfare of the defendants only for a short 16 O.S.No.4165/1998 c/w O.S.No.7731/2009 period. Thereafter the plaintiff, his wife and children started giving pinpricks to the defendants, in order to deprive the defendants from the property. The plaintiff stopped supply of food and clothing to the defendants and he used to harass them in all sorts. The plaintiff has neglected his obligation to perform the marriages and settle the defendants in their own family. The defendants are leading a miserable life, since the plaintiff has neglected their welfare and the defendants have no source of income to eke their livelihood. It is further contended that the father of the defendants had deposited their money of Rs.5,000/-, Rs.12,500/- and Rs.31,000/- respectively in the partnership firm M/s.D.R.Hanumantharaju and Company at Tharagupet, Bangalore. The said amounts are still lying in the books of accounts of partnership firm. After the death of D.Ramaiah Setty the plaintiff who has continued the business, has not cared to refund the deposit amounts to the defendants or to pay any interest on the said deposit, inspite of repeated requests and demands. The plaintiff is utilizing the said deposit amounts and gaining profits from the same, as such the plaintiff is liable to account 17 O.S.No.4165/1998 c/w O.S.No.7731/2009 for the income on the deposit by way of interest. It is further contended that the defendants reserve the right to file a suit for recovery of deposit amount with interest. It is further contended that in the partnership firm only two partners were there, namely D.Ramaiah Setty and plaintiff. After the death of D.Ramaiah Setty the defendants being the daughters and legal heirs have succeeded to the estate of their father, the plaintiff has utterly failed and neglected to take the defendants as partners in the firm or to share the profit derived from the business with the defendants. The shop property at APMC yard was allotted to the name of partnership firm. The defendants as legal heirs of their father have legitimate right and share in the said property.
12. It is further contended that there is lumbar room in the common passage and in fact the said lumbar room belongs to one of the defendants. The plaintiff has no right over the said lumbar room or to have possession of the same. It is further contended that the plaintiff has illegally trespassed into the room and forcibly took possession of the same. The 18 O.S.No.4165/1998 c/w O.S.No.7731/2009 plaintiff had tried to let out the lumbar room on a monthly rent of Rs.500/- and the defendants on coming to know of the same, objected and prevented the letting of lumbar room to anybody else. There is also a room under the stair case in the common passage which is common to both plaintiffs and defendants. The plaintiff is exclusively using the said room under the stair case and deprived the defendants from the common usage of the same. It is further contended that if they let out the lumbar room and the room made under stair case, it would fetch Rs.750/- per month. Since the plaintiff is in illegal possession of the lumbar room and stair case room, he is liable to pay Rs.750/- per month to the defendants. It is further contended that the entire property bearing No.254 and 255, III Main road, Chamarajpet, Bangalore - 18, was purchased by D.Ramaiah Setty in the year 1956 out of his own earning and as such it was self acquired property. It is further contended that at that time D.Ramaiah Setty was a partner in the business M/s.Malakala Shivaramaiah Setty and Sons at New Tharagupet, Bangalore, having 19% share in the said firm. At that time his only son D.R.Hanumantharaju who 19 O.S.No.4165/1998 c/w O.S.No.7731/2009 is none other than the plaintiff though married was not having any job. Therefore their father gave him the job as an Assistant in the said firm with a salary of Rs.50/- per month. Likewise D.R.Hanumantharaju worked in the said firm till 1966.
13. It is further contended that in the year 1966, D.Ramaiah Setty out of his own earnings established his own shop at No.65, I cross, New Tharagupet, Bangalore - 560 002, taking the same on lease from the Muzrai Department. In the said shop, D.Ramaiah Setty on 2/9/1966 started a firm, out of his love and affection towards his only son and also to enable him to settle in his life with prosperous carrier and also to look after and celebrate the marriage of his three unmarried sisters and also to take the responsibility of the entire family in the name and style of "D.R.Hanumantharaju and Company Rice and General Merchants and Commission Agents. In the said shop he offered his son an equal share of 50% out of profits and loss. The capital for the said sum was a sum of Rs.5,000/- each by two partners though a sum of Rs.5,000/- 20 O.S.No.4165/1998 c/w O.S.No.7731/2009 of the share, D.R.Hanumantharaju was also contributed by D.Ramaiah Setty alone. The firm was also registered. It is further contended that the said firm had a bank account with M/s.Syndicate Bank, Chamarajpet, Bangalore - 560 018. The said firm represented by D.R.Hanumantharaju applied for advance fresh of Rs.20,000/- and declared D.Ramaiah Setty net worth individually of Rs.1,40,000/- and his capital in business was Rs.5,101/- and D.R.Hanumantharaju, the plaintiff was net worth individually of Rs.1,40,000/- and his capital in business was Rs.5,112/-. It is further contended that likewise the business in the firm continued and flourished. In the year around 1981 with a view to shift the entire business establishment run in New Tharagupet, Bangalore, including the above stated firm, alternative shops were allotted in the newly formed APMC yard at Yeshwanthpur, Bangalore, for the existing shop owners / establishment at New Tharagupet. Accordingly one site bearing No.635 measuring 30 x 60 (for sale consideration of Rs.27,050/-) and also one shop bearing No.111 and 112/A, 4th main road, Yeshwanthpur, Bangalore - 560 022 was allotted 21 O.S.No.4165/1998 c/w O.S.No.7731/2009 to the said firm D.R.Hanumanthaiah and Company. To the knowledge of the defendants as the said site was surrendered, the shop was conveyed and the sale deed was also executed by the authorities of M/s. APMC yard to the said firm M/s. D.R.Hanumantharaju and Company. The firm continued the business in the shop at APMC yard also and the said D.Ramaiah Setty and D.R.Hanumantharaju continued as partners in equal shares not only in old business at New Tharagupet and also business at APMC yard, being the joint owners of both the properties / shops.
14. It is further contended that the shop at New Tharagupet was quite large and as such the bifurcating wall was put up to divide the same into two shops and a portion of it an allied business was being run by the said firm, but in the name and style of M/s.Prakash Traders. Likewise the shop at APMC yard was quite large and such a bifurcating wall was put up to divide the same into two shops and one shop was let out to a tenant on a monthly rent of Rs.6,000/- and an advance of Rs.6,00,000/-.
22 O.S.No.4165/1998 c/w O.S.No.7731/2009
15. It is further contended that D.Ramaiah Setty died on 13/3/1986. After the demise of the said D.Ramaiah Setty his share in the business at New Tharagupet in the old firm and also the business run under the name and style of M/s.Prakash Traders, the business run in the shop and also the entire shop premises at APMC yard and at New Tharagupet, devolved equally on his children. It is further contended that prior to 1975 itself, D.Ramaiah Setty had deposited Rs.5,000/- in the name of D.R.Premaleela, Rs.12,500/- in the name of D.R.Sathyaleela, and Rs.31,000/- in the name of D.R.Sundaralakshmi in the firm then existing. M/s. D.R.Hanumantharaju and Company at New Tharagupet, Bangalore. It is further contended that the details of the deposit made have also been mentioned by D.Ramaiah Setty in the registered release deeds executed in favour of defendants in the year 1975.
16. It is further contended that as the entire property bearing No.254 and 255, III Main road, Chamarajpet, 23 O.S.No.4165/1998 c/w O.S.No.7731/2009 Bangalore was acquired by D.Ramaiah Setty out of his own earnings and as such it was his self acquired property, only with an intention to save huge stamp duty and registration charges to have a convenient arrangement the said property was partitioned into two portions, but it was the self acquired property of D.Ramaiah Setty. It is further contended that the partition effected was illegal and as such continued to be the absolute property of D.Ramaiah Setty. So they contended that after the demise of D.Ramaiah Setty, the entire property bearing No.254 and 255 devolved upon all his children in equal shares. It is further contended that the plaintiff at any point of time did not care for the welfare of the defendants. He neither celebrated the marriage of the defendants nor cared for the well being of his unmarried sisters and on the other hand he is trying his level best to make claim that all the business establishments are of his own.
17. It is further contended that whenever the defendants did not have any money for their livelihood, if they request and demand with the plaintiff, he was giving small 24 O.S.No.4165/1998 c/w O.S.No.7731/2009 amounts out of huge profits earned in the business. The defendants reserve their rights to seek for partition of their shares in the properties and also in the business establishments and also to claim in respect of the principal and the interest accrued for their deposits in the said firm, the rents accrued, in a separate proceedings. So they contended that they are in joint possession and enjoyment of the entire property bearing No.254 and 255, III Main road, Chamarajpet, Bangalore. As such the suit of the plaintiff is not maintainable in law.
18. It is further contended that when the defendants demanded for their right, the plaintiff started giving them troubles and dragged them to unnecessary litigation by filing suits against them seeking different reliefs in O.S.No.3052/1993 and O.S.No.7835/1998 and the present suit, etc. On these grounds and among other grounds they sought for the dismissal of the suit.
25 O.S.No.4165/1998 c/w O.S.No.7731/2009
19. The case of the plaintiff in O.S.No.7731/2009 is as under:
That the plaintiffs and defendant No.1 and late P.R.Sarojamma are the children of late D.Ramaiah Setty, and late D.R.Susheelamma. The defendants No.2 to 8 are the children of late P.R.Sarojamma. It is further contended that D.Ramaiah Setty was carrying on his avocation as a partner in the business M/s.Malakala Shivaramaiah Setty and Sons at New Tharagupet, Bangalore having 19% share in the said firm.
It is further contended that the entire property bearing No.254 and 255, III main road, Chamarajpet, Bangalore - 18, was purchased by the said D.Ramaiah Setty, the father of the plaintiffs, defendant No.1 and grand father of defendants No.2 to 8 in the year 1956 out of his own earnings, as such it was self acquired property. It is further contended that at that time, the defendant No.1 was aged about 22 years and was already married four to five years. As the defendant No.1 did not evince any interest in his studies, so he discontinued his studies. The defendant No.1 got married at an age of 18 years itself. It is further contended that the defendant No.1 was 26 O.S.No.4165/1998 c/w O.S.No.7731/2009 jobless and did not had any social status, even though married, so D.Ramaiah Setty got included the name of defendant No.1 in the said sale deed, as one of the purchasers and also for the purpose of saving income tax. Defendant No.1 did not pay any amount towards the sale transaction and the entire sale transaction was paid by D.Ramaiah Setty alone. As such the said property was the absolute self acquired property of D.Ramaiah Setty.
20. It is further contended that D.Ramaiah Setty demolished the old building in the hind portion of the said property and put up four walls in the year 1962 and a house in the first floor in 1964. The old house situated in front portion was renovated and D.Ramaiah Setty and his wife and children including defendant No.1 started living in the newly constructed house in the first floor. The entire construction and renovation was done by D.Ramaiah Setty out of his earnings. Defendant No.1 has not contributed any sum either towards the purchase of the property or for the construction and renovation as stated above. It is further contended that 27 O.S.No.4165/1998 c/w O.S.No.7731/2009 only with an intention to provide the social status to defendant No.1, the said property was partitioned into two portions, one portion was allotted to D.Ramaiah Setty and another portion was allotted to defendant No.1 in the year 1965 vide a registered partition deed. The portion alleged to be allotted to defendant No.1 is 'A' schedule property. It is further contended that as the said property was self acquired property of D.Ramaiah Setty, the partition effected was only nominal and not acted upon. The plaintiffs, the defendant No.1 and Ramaiah Setty and his wife continued to live together in the schedule 'A' property as joint family members both in food and worship as such schedule 'A' property continued to be absolute property of D.Ramaiah Setty. Defendant No.1 being aware of all the facts conceded to the fact that the self acquired property was the absolute property of D.Ramaiah Setty did not object for continuing the same as the self acquired property of D.Ramaiah Setty. As such after the demise of D.Ramaiah Setty, the said entire schedule 'A' property devolved upon all his children in equal shares. The remaining portion of the said property, apart from the 28 O.S.No.4165/1998 c/w O.S.No.7731/2009 schedule 'A' property was conveyed in portions to the plaintiffs during his life time and to P.R.Sarojamma through 'Will' executed by him.
21. It is further contended that in the year 1966 after the demise of the said Malakala Shivaramaiah Setty, his sons who were in occupation of a shop on lease from Muzrai Department, got transferred the shop on lease in favour of D.Ramaiah Setty to facilitate him to start fresh business and in the said shop premises, out of his own earnings, D.Ramaiah Setty established his own shop at No.65, I cross, New Tharagupet, Bangalore - 560 002, taking the same on lease from the Muzrai Department. In the said shop D.Ramaiah Setty on 2/9/1966 started a firm. Out of his love and affection towards his only son and also to enable him to settle in his life with a prosperous carrier and also to look after and celebrate the marriages of his three unmarried sisters, i.e., plaintiffs and also to take the responsibility of the entire family, he name the said firm as D.R.Hanumantharaju and Company Rice and General Merchants and Commission 29 O.S.No.4165/1998 c/w O.S.No.7731/2009 Agents". In the said shop he offered nominally to his son an equal share of 50% out of the profits and also loss. The capital for the said sum was a sum of Rs.5,000/- each by the two partners, though the sum of Rs.5,000/- being the share of D.R.Hanumantharaju, the defendant No.1 was also contributed by D.Ramaiah Setty alone. As such the entire business belonged to D.Ramaiah Setty alone. The firm was registered and the lease hold rights of the business investment along with capital in the said shop is as shown in the 'B' schedule property. It is further contended that the said firm had a bank account with M/s.Syndicate Bank, Chamarajpet, Bangalore - 560 018. The said firm represented by defendant No.1 applied for advance fresh of Rs.20,000/- and declared that D.Ramaiah Setty was net worth individually of Rs.1,40,000/- and his capital in business was Rs.5,101/- and D.R.Hanumantharaju, the plaintiff was net worth individually of Rs.1,40,000/- and his capital in business was Rs.5,112/-. The lease hold rights and the business investigation along with capital in the said shop is described and referred as 'B' schedule property.
30 O.S.No.4165/1998 c/w O.S.No.7731/2009
22. It is further contended that likewise the business in the said firm continued and flourished in the year 1981 with a view to shift the entire business establishment run in New Tharagupet, Bangalore, including the above said firm, alternative shops were allotted in the newly formed APMC yard, Yeshwanthpur, Bangalore, for the existing shop owners/establishments at New Tharagupet. Accordingly one site bearing No.635, APMC yard, Bangalore, measuring 30 x 60 (for a sale consideration of Rs.27,050/- and also one shop bearing No.111/112/A, 4th main road, Yeshwanthpur, Bangalore - 560 022 was allotted to the said firm D.R.Hanumantharaju and Company. It is further contended that to the knowledge of the plaintiffs as the said site was surrendered, the said shop bearing No.111/112/A was conveyed and the sale deed was also executed by the authorities of M/s.APMC yard, said firm M/s. D.Ramaiah Setty and Company. The firm continued the business in the shop at APMC yard also. As such the said D.Ramaiah Setty and D.R.Hanumantharaju continued as partners in the equal 31 O.S.No.4165/1998 c/w O.S.No.7731/2009 shares not only in the old business at New Tharagupet in suit 'A' schedule property and also business at APMC yard and the said shop property, being the joint owners of both the properties / shops. The said shop property, along with the business investment and capital bearing No.111-112/A is described and referred as 'C' schedule property.
23. It is further contended that the schedule 'B' property at New Tharagupet was quite large, as such a bifurcating wall was put up to divide the same into two shops and a portion of it has been leased on monthly rent of Rs.10,000/- to M/s. Prakash Traders. Likewise the 'C' schedule property was also quite large, as such a bifurcating wall was put up to divide the same into two shop and one shop was let out to a tenant on a monthly rent of Rs.6,000/- and for an advance of Rs.6,00,000/-. It is further contended that D.Ramaiah Setty died on 13/3/1986 and after his demise the schedule 'A' property, the business at New Tharagupet in the old firm, along with lease hold rights and also the business run under the name and style of M/s.Prakash Traders in the 32 O.S.No.4165/1998 c/w O.S.No.7731/2009 'B' schedule property the business run in the shop and also the entire shop property at APMC yard schedule 'C' property and at New Tharagupet, devolved equally on his children. i.e., plaintiffs, defendant No.1 and P.R.Sarojamma. It is further contended that P.R.Sarojamma died on 20/5/2008 and the defendant No.2 to 8 are her children and accordingly they are made parties to the suit. It is further contended that in the year 1975 itself D.Ramaiah Setty had deposited a sum of Rs.5,000/- in the name of D.R.Premalatha, plaintiff No.1 Rs.12,500/- in the name of Sathyaleela, plaintiff No.2 and Rs.31,000/- in the name of D.R.Sundaralakshmi, plaintiff No.3 in the firm then existing in the name of M/s.D.R.Hanumantharaju at New Tharagupet, Bangalore. It is further contended that the details of the deposit made have also been mentioned in D.Ramaiah Setty in the registered release deeds executed in favour of defendants in the year 1975. It was agreed that an interest at the rate of 12% per annum to be paid to the plaintiffs and the interest accrued was to be compounded every year.
33 O.S.No.4165/1998 c/w O.S.No.7731/2009
24. It is further contended that the defendant No.1 at any point of time did not care for the welfare of the plaintiffs. He neither celebrated the marriage of the plaintiffs nor cared for the well being of his unmarried sisters. On the other hand, he tried his level best to make a claim that all the business establishments are of his own. Whenever the plaintiffs did not had any money for their livelihood, if they request and demand with the defendant No.1, he used to give small amounts out of the huge profits earned in the business. It is further contended that the plaintiff No.1 is aged about 69 years and she was born in the year 1940. It is further contended that at that point of time and onwards the plaintiffs did not had any independence in any of the family or personal affairs. They were very obedient and at the entire command of their parents and later their only brother, i.e., defendant No.1.
25. It is further contended that D.Ramaiah Setty with all love and affection though facilitated the plaintiffs to pursue their education, but the plaintiffs did not had any freedom in other affairs. As such the plaintiffs were restricted to the 34 O.S.No.4165/1998 c/w O.S.No.7731/2009 house and kitchen only and could not express their wishes or desires at any point of time. The plaintiffs were also happy and comfortable being commanded by their parents. They were kept aloof in all family matters, except to act as per the commands of their parents and their brother, they did not had any independence. It is further contended that though the plaintiffs were educated to some extent, they were not exposed to the outside world and to gain any employment, so that they could stand on their legs.
26. It is further contended that during the life time of D.Ramaiah Setty, he had celebrated the marriage of his eldest daughter P.R.Sarojamma, the mother of defendant No.2 to 8. Even after the demise of the parents, defendant No.1 never cared for the welfare of the plaintiffs nor never made any efforts to celebrate their marriage. It is further contended that the defendant No.1 did not even bother to look after their basic needs such as food, clothes, medicines, etc. Whenever the plaintiffs used to make some demands that they have an equal share in all the suit schedule properties, he used to give some 35 O.S.No.4165/1998 c/w O.S.No.7731/2009 paltry amounts towards their profits in the business, on the ground that the business was under loss or citing one or other reason.
27. In the circumstances the plaintiffs contended that the suit schedule properties are the joint family properties of themselves and the defendants and they are in joint possession and enjoyment of the suit schedule properties. It is further contended that the defendant No.1 with mischievous and illegal intentions compelled the plaintiffs to sign on blank documents, papers also on ledger sheets, may be with an intention to create evidence to the effect that he has returned the deposits in the business and also the accrued interest to the plaintiffs. Even the defendant No.1 has forcefully taken the signatures of D.Ramaiah Setty also when he was ailing and weak, on blank documents, papers and ledgers. It is further contended that the defendant No.1 had no capacity and competent in law to convey the schedule 'C' property by two gift deeds in favour of his sons. The schedule 'C' property is not self acquired property of the defendant No.1. The 36 O.S.No.4165/1998 c/w O.S.No.7731/2009 defendant No.1 has fraudulently created nominal and illegal gift deeds to defeat the legal rights of the plaintiffs in the schedule 'C' property. The said gift deeds did not confer any right, title or interest or possession in favour of defendant No.9 and 10. So it is contended that the said gift deeds are void ab initio. It is further contended that the plaintiffs were / are in joint possession and enjoyment of the schedule 'C' property along with defendant No.1. The defendant No.1 is also liable to account and pay back the deposits with the accrued interest at the rate of 1% interest per month bounded in yearly rests to the plaintiffs. As such the plaintiffs reserve their right to claim for the same. It is further contended that the defendant No.1 with ulterior motives and objects has filed O.S.No.4165/1998 against the plaintiffs on the file of this court alleging that the plaintiffs are residing in two rooms in the I floor of the schedule 'A' property without having any rights and they are liable to vacate the same. It is further contended that the plaintiffs demanded the defendant No.1 to partition the schedule properties by metes and bounds, allotting their 1/5th share each to the plaintiffs in the suit 37 O.S.No.4165/1998 c/w O.S.No.7731/2009 schedule properties. The defendant No.1 went on postponing the same on one pretext or the other. Whenever the plaintiffs without any means to maintain themselves even without their basic necessities requested or demanded with defendant No.1, he would give paltry sums towards the profits and share in the business to the plaintiffs. The plaintiffs being helpless ladies without any support. They do not have any means even for their survival also. So they have come up with the present suit seeking for partition and for such other reliefs and accordingly prays for to decree the suit.
28. The suit summons sent by this court was duly served upon the defendants. Defendant No.1, 9 and 10 appeared before the court through their counsels. The defendant No.2 to 8 inspite of service of summons, failed to appear before the court. Consequently they have been placed exparte.
29. Defendant No.1 filed his detailed written statement. Defendant No.9 to 10 adopted the written statement filed by 38 O.S.No.4165/1998 c/w O.S.No.7731/2009 the defendant No.1. Defendant No.1 in his written statement by denying all the plaint averments contended that the suit filed by the plaintiff is not maintainable, as such the same is liable to be dismissed. It is further contended that the plaintiffs in collusion with other defendants have instituted the present suit and are trying to play fraud on him which they are not entitled to. It is further contended that the plaint is vague and material particulars are conspicuously absent in the plaint and they have done so in order to improve their case as the matter proceeds. Plaintiffs are guilty of suppression of facts, misrepresentation and fraud and they are not entitled to any reliefs and the suit is liable to be dismissed in limine on various grounds and also under various provisions of law and they have not sought for any declaratory reliefs, though they are entitled to and suit is allowed is not maintainable and is barred under provisions of section 34 of the Specific Relief Act. It is further contended that the plaintiffs have no possession, much less joint possession and there is ouster from possession and they are not entitled to any reliefs and in any event this court has no jurisdiction either to entertain the suit 39 O.S.No.4165/1998 c/w O.S.No.7731/2009 or grant any reliefs sought by the plaintiffs. It is further contended that the suit of the plaintiff is also otherwise barred by limitation. It is further contended that the plaintiffs have also suppressed various documents inspite their knowledge, as such they are not entitled to any reliefs.
30. It is further contended that the entire property was purchased jointly by 1st defendant and his father in the year 1956 and the same was partitioned between the 1st defendant and his father on 29/3/1965 under registered partition deed. It is further contended that right from the date of partition, the plaintiffs started harassing the defendant No.1 in respect of lumbar room and 1st defendant instituted O.S.No.3052/1993 and obtained temporary injunction against the plaintiffs and after lapse of years the plaintiffs instituted O.S.No.8209/1997 for permanent injunction in respect of lumbar room and both the suits ended in compromise and compromise petition in O.S.No.3052/93 and O.S.No.8209/97 was entered by and between the parties. It is further contended that the plaintiffs are in permissive possession of two rooms in the first floor of 40 O.S.No.4165/1998 c/w O.S.No.7731/2009 the property No.255 belonging to 1st defendant and this defendant has instituted suit against the plaintiff in O.S.No.4165/1998 and the same is pending adjudication. It is further contended that the 1st defendant after coming to know the alleged 'Will' which is got up by the plaintiffs alleged to have been executed by deceased father D.Ramaiah Setty he has also instituted suit in O.S.No.4396/2000 challenging the 'Will' to the extent of lumbar room and plaintiffs have instituted suit in O.S.No.849/2002 for ejectment of 1st defendant from the lumbar room and the suits are pending in CCH-2. It is further contended that the plaintiffs have suppressed the pendency of the above suits in the present suit, as such they are guilty of suppression of facts and misrepresentation, so they are not entitled to any reliefs. It is further contended that the plaintiffs are trying to play fraud on defendant No.1 by such methods which are not entitled to. Plaintiffs have also got properties and also getting rents and refused to marry and wanted to have their own ways and rejected all the proposals of the marriage, as such neither the father nor defendant No.1 could perform their marriages. It is 41 O.S.No.4165/1998 c/w O.S.No.7731/2009 further contended that the plaintiffs have not included other portion of the property with ulterior motive and they are not entitled to any reliefs. It is further contended that the plaintiffs have obstructed defendant No.1 to use well water, so he filed O.S.No.1974/1990 and O.S.No.7835/1998 for permanent injunction and both suits are disposed off.
31. It is further contended that absolutely there is no cause of action for the plaintiff to file the present suit and no cause arose to them either one month back or other and plaintiffs never demanded any share and there was no occasion for the same. It is further contended that infact the rights of the defendant No.1 were made known to the plaintiffs since decades back and even when the earlier suit was instituted and the allegations to contrary are all false and are made with intent to try to bring the suit within limitation and not otherwise. It is further contended that the suit is not maintainable in law or on facts and is devoid of merits and is also hopelessly barred by law of limitation. It is further contended that the registered documents are constructive 42 O.S.No.4165/1998 c/w O.S.No.7731/2009 notice to the plaintiffs and the properties are also enjoyed exclusively. As such by one and all and this suit is liable to be dismissed for want of cause of action.
32. It is further contended that the plaintiffs have to pay court fee on the market value of the properties, as they are not in joint possession and there is ouster. The provision under which the suit is valued and the method of valuation are incorrect and unacceptable and the issue regarding the court fee has to be tried as a preliminary issue and the plaint is liable to be rejected in limine for nonpayment of court fee under Order 7 rule 11 C.P.C. It is further contended that the suit is also otherwise barred in law. So also the suit is bad for non-joinder of necessary parties and properties, as such the same is liable to be rejected in limine.
33. It is further contended that all the A to C schedule properties never belonged to late D.Ramaiah Setty, when that would be the case, the question of devolution of the same on any others does not arise. The said properties belongs to 43 O.S.No.4165/1998 c/w O.S.No.7731/2009 defendant No.1, who was the absolute owner thereof. It is further contended that there was no need nor necessity for defendant No.1 to maintain the plaintiffs or any others as they have taken huge amounts even during the life time of the father and also collected money even during life time of father at the time of execution of release deeds and thereafter also pressurized the father and got settlement deeds executed in their favour and have got the property also. It is further contended that the plaintiffs not being satisfied with the same are still greedy and want to knock off all the properties and earnings of the defendant over and again by other methods, which they are not entitled to.
34. It is further contended that the business exclusively belonged to defendant No.1. It is further contended that though the defendant No.1 is in exclusive possession and enjoyment of the properties and there is ouster and the plaintiffs have to pay court fee on the market value of the properties and if they want to not claim regarding profits of the business they have to value the same and pay court fee on the 44 O.S.No.4165/1998 c/w O.S.No.7731/2009 alleged share and not as, has been done. It is further contended that when there was no liability for the defendant No.1 to provide plaintiffs any amount from the business, the question of defendant No.1 showing loss does not arise, plaintiffs are weaving the story to make out the false case where there is none. So it is contended that viewed from any angle, the suit of the plaintiffs is liable to be dismissed and they are not entitled for any share much less 1/5th share or any other reliefs as sought in the present suit, etc. On these grounds and among other grounds the defendant No.1, 9 and 10 have sought for the dismissal of the suit.
35. The defendant No.1 has filed his additional written statement wherein it is contended that there is no joint family or family property or property of late D.Ramaiah Setty and the plaintiffs are not entitled to any reliefs. It is further contended that when the plaintiff has / had no right or share in 'C' schedule or any of the schedule properties, the question of defeating their rights does not arise. It is further contended that there is no joint possession of any kind whatsoever in 45 O.S.No.4165/1998 c/w O.S.No.7731/2009 respect of any of the properties. In the previous suit O.S.No.3052/1993 filed by the defendant No.1 against the plaintiffs herein, plaintiffs who were defendants in their written statement have clearly admitted several off status and partition between 1st defendant and his father and release deeds by plaintiffs and settlement deeds by their late father on portions in favour of plaintiffs. So it is contended that on the face of said admissions, the allegations of jointness of joint possession of any of the properties does not arise. It is further contended that there is no exclusion and ouster and plaintiffs were never in joint possession. The 'C' schedule property was conveyed in favour of the 1st defendant, who demolished the old dilapidated shed and raised loan and put up new construction in about 1995 itself from out of his own funds and cleared the loan in about 2005 to the knowledge of one and all. It is further contended that the sale deed of 'C' schedule property stands in the name of 1st defendant as proprietor and he was in exclusive possession and enjoyment and was putting outgoings and subsequently as he was aged he has gifted portions of the said property in favour of his two 46 O.S.No.4165/1998 c/w O.S.No.7731/2009 sons under two registered gift deeds 2005 itself and 1st defendant has delivered possession of respective portions to the respective sons who are in exclusive possession as and from the date of registered gift deeds and the respective sons have taken possession from the 1st defendant and are in exclusive possession and enjoyment of the same in their own right, as such the question of joint possession does not arise. So it is contended that the suit or the claim of the plaintiffs cannot be entertained without payment of court fee on the market value of the properties and the plaint is liable to be rejected in limine under Order 7 Rule 11 C.P.C.
36. It is further contended that in any event the father of the plaintiffs died during 1986 and the present claim of the plaintiff after lapse of 26 years is barred by limitation and cannot be entertained. The plaintiffs were throughout aware of all the transactions including the gift deeds and they are trying to feign ignorance intentionally and in any event, registration is constructive notice and the plaintiffs are not entitled to any reliefs. It is further contended that the alleged 47 O.S.No.4165/1998 c/w O.S.No.7731/2009 claims made by the plaintiffs are all barred in law and also under various provisions of Specific Relief Act. It is further contended that the registered gift deeds have come into force and operation from the date of execution and registration and except defendant No.9 and 10, none others are in possession of the same.
37. It is further contended that late D.Ramaiah Setty at the time of his death had no properties and he had no right or share in the business or any other items and himself was due heavy amount to the firm. In view of the loss suffered the partnership was absolved even prior to the death of father D.Ramaiah Setty as the partnership was partnership at 'Will'. The plaintiffs have secreted the books of the firm and other documents which were kept in the responsibility of D.Ramaiah Setty and have suppressed the same and are making false and untrue allegations against 1st defendant knowing it to be false. It is further contended that on the death of Ramaiah Setty, the firm M/s. D.R.Hanumantharaju and company automatically came to an end, so 1st defendant became the Proprietor of the 48 O.S.No.4165/1998 c/w O.S.No.7731/2009 said firm and has acted as such and as dealt accordingly and the matter proceeded and thus the properties became the absolute properties of the 1st defendant. It is further contended that plaintiffs have taken amounts and have also executed registered release deeds and subsequently different portions of property are also settled by late D.Ramaiah Setty to the plaintiffs. Thus there is complete severance of status of all the parties and there was no joint family or family properties and even one portion of the property which was retained by late D.Ramaiah Setty is given to elder daughter deceased Sarojamma and thus there was no communion of interest of any kind whatsoever between the parties or properties. It is further contended that the plaintiffs have also taken back the alleged amounts from the firm. It is further contended that as on the date of death of late D.Ramaiah Setty he had no assets and he himself was due heavy amount to the firm as the firm was running under loss after taking amounts which is reflected in the ledger and thus there was nothing left for late D.Ramaiah Setty at the time of his death.
49 O.S.No.4165/1998 c/w O.S.No.7731/2009
38. It is further contended that absolute sale deed in respect of schedule 'C' property was granted and executed by the APMC in favour of 1st defendant as Proprietor of his own concern and thus 1st defendant became the full, absolute and exclusive owner of property and has acted as such and the premises became the absolute property of 1st defendant.
39. It is further contended that after allotment of the property 1st defendant has put up new construction spending his own amount and also amount raising loan on the security of the said 'c' schedule from the Grain Merchants Cooperative Bank and cleared the loan from out of his own earnings and with the assistance of his two sons. The 1st defendant has in all spent about Rs.6,00,000/- excluding the site cost of Rs.2,19,000/- which was paid by the 1st defendant and has put up new constructions even during 2005 itself. The various claims and contentions of the plaintiffs and their allegations are all false, etc. On these grounds and among other grounds he sought for the dismissal of the suit.
50 O.S.No.4165/1998 c/w O.S.No.7731/2009
40. Heard the arguments.
41. The learned counsel for the plaintiff in O.S.No.4165/98 filed his written submissions and the learned counsel for the plaintiff in O.S.No.7731/2009 also filed the written synopsis.
42. The learned counsel for the plaintiff in O.S.No.4165/98 in support of his arguments has relied upon the following decisions:
(1) ILR 2012 Kar page 5420 (2) AIR 1976 Madras 222 (3) AIR 2003 Kar page 331 (4) 2010(2) SCC page 407 (5) AIR 1966 SC page 24 (6) AIR 2008 SCW page 4113 (7) AIR 1974 SC page 471 (8) 2007(4) AIR Kar page 452 (9) AIR 2011 SC page 1480 (10) AIR 2008 SC page 363 51 O.S.No.4165/1998 c/w O.S.No.7731/2009
43. The learned counsel for the plaintiff in O.S.No.7731/2009 in support of his arguments has relied upon the following decisions:
(1) 1990(3) KLJ 264 (2) ILR 1988 Kar page 786 (3) AIR 1985 J&K page 50 (4) AIR 2007(NOC) page 86 (5) AIR 2013(4) AKR page 89 (6) (2007)3 SCC page 114
44. The learned counsel for the plaintiff also relied upon the Karnataka Hindu Law Women's Rights Act, 1933.
45. On the basis of the above rival pleadings of the parties in O.S.No.4165/1998, my learned Predecessor-in-office has framed the following issues and one additional issue which are as under:
(1) Whether the plaintiff proves that he is the owner of 'B' schedule property ?
(2) Whether the plaintiff proves that the defendants are in possession of 'B' 52 O.S.No.4165/1998 c/w O.S.No.7731/2009 schedule property with the permission of the plaintiff?
(3) Whether the plaintiff is entitled for declaration of his ownership over 'B' schedule property ?
(4) Whether the plaintiff is entitled for possession of the 'B' schedule property from the defendants ?
(5) Whether the plaintiff is entitled for mesne profits ?
(6) Whether the defendants prove that the suit is not properly valued and proper court fee is not paid ?
(7) What order or decree ?
Additional issues:
(1) Whether defendants prove that they have perfected title to the suit schedule properties by adverse possession ?
46. On the basis of the above rival pleadings of the parties in O.S.No.7731/2009, my learned Predecessor-in-office has framed the following issues, which are as under:53 O.S.No.4165/1998 c/w O.S.No.7731/2009
(1) Whether the plaintiff proves that suit 'A' property is the self acquired and absolute property of father Sri. D.Ramaiah Setty?
(2) Whether the plaintiffs prove that the partition effected in 1965 between the defendant No.1 and D.Ramaiah Setty was nominal and not acted upon ?
(3) Whether the plaintiffs prove that out of his own earning, their father established his own shop by starting a firm named as D.R.Hanumantharaju and Company on 2/9/1966?
(4) Whether plaintiffs prove that the father had offered nominally his son / defendant No.1 an equal share of 50% of the profit and loss though the entire investment was by the father alone and so the entire things belonged to the father ?
(5) Whether the plaintiffs prove that the suit schedule properties are joint family properties of plaintiffs and defendants ?54 O.S.No.4165/1998 c/w O.S.No.7731/2009
(6) Whether the plaintiffs prove they are join possession and enjoyment of the suit schedule properties ? (7) Whether plaintiffs prove that they have 1/5th share each in the suit schedule properties ?
(8) Whether suit is not maintainable for not seeking declaratory reliefs ? (9) Whether the defendant No.1 proves that plaintiffs are not in possession and enjoyment of the suit properties and there is their ouster form the possession of the suit properties ? (10) Whether suit is barred by limitation? (11) Whether defendant No.1 proves that suit schedule 'A' property was purchased jointly from him and by father contributing equally by both of them ?
(12) Whether defendant No.1 proves that there is complete division of all the properties of the father giving share to the plaintiffs ?
(13) Whether suit is not properly valued and court fee paid is insufficient ?55 O.S.No.4165/1998 c/w O.S.No.7731/2009
(14) Whether defendant No.1 proves that plaintiffs and another sister Sarojamma had relinquished and released their right, title and interest in respect of immovable property allotted to the share of the father taking consideration amount of Rs.40,000/- each ?
(15) Whether defendant No.1 proves that the firm D.R.Hanumantharaju and Company and the business carried out by this firm exclusively belongs to him alone ?
(16) Whether suit is liable to be rejected under Order 7 Rule 11 C.P.C. ? (17) Whether suit is bad for non-joinder of necessary parties and properties ? (18) Whether plaintiffs are entitled to the reliefs sought for ?
(19) What order or decree ?
47. The plaintiff in O.S.No.4165/98 and defendant No.1 in O.S.No.7731/2009 in order to establish his case in both cases himself got examined as PW1 and got marked as many 56 O.S.No.4165/1998 c/w O.S.No.7731/2009 as 33 documents from Ex.P1 to P33 and closed his side evidence.
48. The defendants in O.S.No.4165/98 and plaintiffs in O.S.No.7731/2009, in order to establish their case, examined the Assistant Secretary, APMC yard, Bangalore as DW1 and defendant No.1 in O.S.No.4165/98 and plaintiff No.1 in O.S.No.7731/2009 in order to establish their case, she herself got examined as DW2 and got marked as many as 34 documents from Ex.D1 to D34 and also got examined one witness as DW3 and closed their side evidence.
49. My findings to the above issues in O.S.No.4165/1998 are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : Same shall be determined in
Separate Enquiry
Issue No.6 : Does not survive for consideration
57 O.S.No.4165/1998 c/w O.S.No.7731/2009
Addl Issue No.1 : In the Negative
Issue No.7 : As per the final order
50. My findings to the above issues in
O.S.No.7731/2009 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 Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : In the Negative
Issue No.8 : In the Negative
Issue No.9 : In the Affirmative
Issue No.10 : In the Affirmative
Issue No.11 : In the Affirmative
Issue No.12 : In the Affirmative
Issue No.13 : In the Negative
Issue No.14 : In the Affirmative
Issue No.15 : In the Affirmative
Issue No.16 : Does not survive for consideration
Issue No.17 : Partly in the Affirmative
Issue No.18 : In the Negative
Issue No.19 : As per the final order
58 O.S.No.4165/1998 c/w O.S.No.7731/2009
REASONS
51. Issue No.1, 2, 11 and 12 in O.S.No.7731/2009 :
Both these issues are interconnected. Therefore they have been taken together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
52. Since O.S.No.4165/1998 and O.S.No.7731/2009 are clubbed together, as such common evidence lead by the parties relating to both cases. The plaintiffs in O.S.No.7731/2009 in order to establish their case, the plaintiff No.1 herself got examined as DW2 (who is plaintiff No.1 in O.S.No.7731/2009 and defendant No.1 in O.S.No.4165/1998). Plaintiff No.1 has filed her detailed affidavit by way of examination-in-chief wherein she reiterated all the averments made in the plaint and further on oath stated before the court that the plaintiff No.2 and 3 in O.S.No.7731/2009 and defendant No.2 and 3 in O.S.No.4165/98 are her younger sisters and they have authorized her to give evidence on their behalf also. She further stated that she herself, late 59 O.S.No.4165/1998 c/w O.S.No.7731/2009 Smt.P.R.Sarojamma and other plaintiffs are children of D.Ramaiah Setty and D.R.Susheelamma. She further stated that the defendant No.2 to 8 in O.S.No.7731/2009 are the children of late Smt.P.R.Sarojamma. She further stated that her father out of his earning and savings for a period of nearly 25 to 30 years, he was able to purchase immovable property No.66, 4th main road, Chamarajpet, Bangalore, measuring 30 feet x 108 feet on 2/2/1949 and they were all residing in rent house in the said property and remaining portions were let out for tenants by their father. She further stated that her brother who is plaintiff in O.S.No.4165/1998 has not shown any interest in studies and he was jobless and without the consent of the parents, he agreed to marry and accordingly his marriage took place in the year 1950. She further stated that her father, out of love and affection gave to their sister-in-law Sathyalakshmamma, her mother's jewels weighing about 330 grams of four lines gold chain and other ornaments. She further stated that the plaintiff was jobless, so her father joined him with the firm M/s. Malakala Shivaramaiah Setty and Sons as a worker in 1950 on a monthly salary of Rs.50/- 60 O.S.No.4165/1998 c/w O.S.No.7731/2009 per month, but he was not paid Rs.200/- or any amount in addition to the salary. She further stated that her father celebrated the marriage of her elder sister Sarojamma in the year 1952 and after about six months, she came from Bellary and started living with them and her husband also joined them later. She further stated that her father sold house property at 4th main road, in the year 1955 for a sale consideration of Rs.18,000/- wherein it is mentioned that the said property was self acquired property and their father and as he was a manager of the joint family, the name of his brother D.R.Hanumantharaju was included as one of the seller. She further stated that with a view to accommodate the growing family and to lead comfortable life, their father purchased property at No.255, III Main, Chamarajpet, Bangalore 60 x 108 feet out of his own earnings for a sum of Rs.22,000/- and the entire sale consideration amount was paid by their father from the amount of Rs.18,000/- received from selling the property at 4th main road and the remaining amount was raised from selling the jewels of her mother and herself and other sisters. She further stated that her brother 61 O.S.No.4165/1998 c/w O.S.No.7731/2009 Hanumantharaju who is plaintiff in O.S.No.4168/98 has not paid a single pie for the purchase of the said property. She further stated that their father renovated the front main house by spending huge amount out of his own earnings and all of them started living in the said main house in the said property. She further stated that her father himself was maintaining entire family including with all his brother Hanumantharaju and children out of his own earnings. She further stated that their father demolished the old structure in the hind portion of the said property in the year 1961-62 and put up 4 halls / godowns out of his own earnings and they were let out to tenants by their father and he was receiving the rents from them.
53. She further stated that even their brother Hanumantharaju has not contributed a single pie for the said construction. She further stated that there father with a view to lead a comfortable life and to accommodate all the family members including the plaintiff, i.e., her brother Hanumantharaju and his wife and children, constructed a 62 O.S.No.4165/1998 c/w O.S.No.7731/2009 huge 5 rooms house on the 4 walls / godowns in the year 1964, out of his own earnings at approximate cost of Rs.33,000/-. She further stated that the plaintiff, i.e., her brother has not contributed a single pie for the construction and still he was working on salary of Rs.50/- per month. She further stated that at that time her brother who is plaintiff in O.S.No.4165/98 had three children and he had one child earlier to Prakash, but the said child lived only for 11 months. She further stated that all of them including her parents and brother and his wife and children started residing in the first floor of newly constructed house. So also her elder sister Sarojamma, her husband and five children shifted their residence to a rented house in the same rate. She further stated that her father leased the front house in which they were residing to one K.Ramakrishna Prabhu on 2/12/1964 for a rent of Rs.150/- per month and Honnamma and Jayamma continued as tenants in the remaining small portion of the front house. She further stated that the agreement of lease dated 2/12/1964 is also produced to prove the said aspect. 63 O.S.No.4165/1998 c/w O.S.No.7731/2009
54. She further stated that their father with a view to give social status to the brother D.R.Hanumantharaju, as he was already married and having three children and her sister- in-law was pregnant for the 4th child and also on the fond belief that he will shoulder the responsibility of three sisters, entered into a partition deed dated 29/3/1965 as per Ex.P1 with their brother D.R.Hanumantharaju and the hind portion measuring 30 x 60 was allotted to his share later bearing No.255, i.e., schedule 'A' property in O.S.No.7731/2009 and the front portion measuring 60 x 70.6 was allotted to their father's share later bearing No.254 both in 3rd main, Chamarajpet, Bangalore. She further stated that the said partition was only nominal and not acted upon, inspite of the partition all of them, i.e., herself and other sisters, her parents, her brother D.R.Hanumantharaju and his family continued to live in the newly constructed first floor house No.255. She further stated that her father was only maintaining the entire family out of his own earnings as a partner having 19% share in M/s. Malakalu Shivaramaiah Setty and sons. She further stated that her father was only 64 O.S.No.4165/1998 c/w O.S.No.7731/2009 collecting the rents from the tenants in the three godowns and one godown was being used to store the excess stock and the business was carried on in the suit schedule property. She further stated that they continued to live as joint family members both in food and worship, as such they did not give any importance for the fact that there was a partition. She further stated that her brother, plaintiff in O.S.No.4165/1998 fully aware of all these facts, but did not raise any objection for all of them, i.e., herself and her sister and her parents to continue to live in the house as joint members both in food and worship.
55. She further stated that recognizing the sincere efforts and hard work rendered by their father for the prosperity of the firm M/s.Malakala Shivarama Setty and sons, the elderly persons of the said firm in the year 1966 handed over a shop in their custody bearing No.65, I cross, New Tharagupet, Bangalore, i.e., 'B' schedule property along with stock in trade to their father to facilitate him to run the business independently on his own. She further stated that 65 O.S.No.4165/1998 c/w O.S.No.7731/2009 the said shop is a leased premises belonging to the Muzrai Department and the tenancy was also transferred to the name of their father. As such the stock in trade, as the leased, of the suit 'B' schedule property is the self acquired property of their father. She further stated that in 1969 their father once again to give the social status to the plaintiff, i.e., their brother who is plaintiff in O.S.No.4165/1998 and also with a fond hope that he will take the responsibility of looking after the parents and sisters, entered into the partnership with him in the business in the 'B' schedule property under the name and style of M/s.Hanumantharaju and company. She further stated that though their brother D.R.Hanumantharaju has not contributed a single pie for the constitution of the said firm their father made him as a partner with 50% share in the profits of the said firm. She further stated that the documents produced by them at Ex.D7, i.e., the application was advanced fresh made to M/s.Syndicate Bank shows the details that the capital of their father and the plaintiff, i.e., their brother D.R.Hanumantharaju was Rs.5,102/- and Rs.5,112 respectively and they were individually net worth of 66 O.S.No.4165/1998 c/w O.S.No.7731/2009 Rs.1,40,000/- each. She further stated that the total worth of the firm before entering the partnership business was the self acquired earnings of their father and the same was divided to both their father and brother D.R.Hanumantharaju.
56. She further stated that inspite of forming the partnership firm and continuing the business entire family expenditure was made from the profits from the business. At any point of time there was no bifurcation of income between father and the brother, as such all of them including their brother and his family continued to live as joint family members both in food and worship. She further stated that one Ramakrishna Prabhu who is the tenant in the major portion of the main house No.254 vacated the same in the year 1973 and one Lakshminarayana, Managing Partner, M/s.Traders of India occupied that portion and he vacated on 23/12/1981. The receipt dated 23/12/1981 issued by the said person for having received the advance of Rs.3,00,000/- is also placed to prove the same. She further stated that soon after her elder sister Sarojamma along with her husband and 67 O.S.No.4165/1998 c/w O.S.No.7731/2009 seven children, i.e., defendant No.2 to 8 in O.S.No.7731/2009 occupied the entire house No.254, as the tenants Honnamma and Jayamma also vacated the small portions. She further stated that Sarojamma was paying nominal rent of Rs.400/- per month to their father. She further stated that Sarojamma and her husband celebrated the marriage of her six children while living in the said house. She further stated that her sister Sarojamma died on 20/5/2008 and her husband predeceased her and her children and their family members are living in the entire house No.254 even to this day. She further stated that gradually the rent was enhanced to the children of Sarojamma and are paying only a nominal rent of Rs.1,500/- to them.
57. She further stated that the business run in the 'B' schedule property was flourishing day by day and in the year 1981 the state government with a view to shift the entire business establishments run in new Tharagupet, Bangalore, including the schedule 'B' property, alternate shops were allotted in the newly firm APMC yard at Yeshwanthpur, 68 O.S.No.4165/1998 c/w O.S.No.7731/2009 Bangalore for the existing shop / owners establishment at new Tharagupet. Accordingly one site No.635, APMC yard measuring 30 x 60 was allotted to their father for a sale consideration of Rs.27,050/- and also one shop bearing No.111-102/A, 4th main road, Yeshwanthpur, Bangalore - 22 was allotted to their father representing the said firm M/s.D.R.Hanumantharaju and Company.
58. She further stated that the immovable property measuring 20 x 73 including the business investment and capital is schedule 'C' property in O.S.No.7731/2009. She further stated that since the site No.635 was not situated in a suitable place the business run in the schedule 'B' property was continued in the schedule 'C' property. There was no bifurcation in the business run in schedule 'B' and 'C' property and only one business was done on both the places though the entire sale consideration was paid. The site No.635 was not conveyed by the authorities. She further stated that their father and their brother considering that the 'C' schedule property was convenient to run the business, made a request 69 O.S.No.4165/1998 c/w O.S.No.7731/2009 to the APMC authorities to convey the schedule 'C' property in lien of surrendering site No.635 after prolonged approach, authorities and seeking remedies of surrendering the site No.635, the authorities conveyed the schedule 'C' property. She further stated that that the firm continued the business in the 'B' and 'C' schedule properties, as such their father and brother continued as partners in equal shares not only in the old business at Tharagupet, in the 'B' schedule property, but also the business at APMC yard in 'C' schedule property, being joint owners of both properties / shops.
59. She further stated that in the year 1975, their father and their brother plaintiff took them to Sub-Registrar Office and got executed three release deeds dated 6/10/1975 from them in favour of their parents on the pretext that a sum of Rs.40,000/- has been received by them and that they have released their rights from the joint family. She further stated that their brother, i.e., plaintiff in O.S.No.4165/1998 is not a party to the said release deeds and the said documents placed before the court at Ex.P11 to P13. She further stated that 70 O.S.No.4165/1998 c/w O.S.No.7731/2009 though such release deed were got executed by them, neither they were paid Rs.40,000/- on the said date nor they went out of the joint family severing their relationship with the joint family. She further stated that they continued to live along with their parents and their brother plaintiff in the schedule 'A' property. She further stated that their brother D.R.Hanumantharaju to suit his convenience has entered in the said deeds that they are residing in No.254, but in fact they were not residing in No.255 only. She further stated that in the release deeds it was shown that her sister who is plaintiff No.2 in O.S.No.7731/2009 and defendant No.2 in O.S.No.4165/1998 has contributed a sum of Rs.12,500/- and defendant No.3 in O.S.No.4165/1998 and plaintiff No.3 in O.S.No.7731/2009 has contributed a sum of Rs.31,000/-, which amounts are deposited towards capital in the partnership firm M/s. D.R.Hanumantharaju and Company and it was agreed to pay interest at the rate of 1% per month out of profits with yearly rests, but no amount has been paid till today and the partnership firm is earning huge profits. She further stated that their brother has falsely contended 71 O.S.No.4165/1998 c/w O.S.No.7731/2009 that they have received all the amounts, though they have not received any such amounts.
60. She further stated that on 29/7/1976, their father executed a settlement deed which is marked as Ex.P14, settling three portions measuring 20 x 35 each to herself and her other two sisters in the property bearing No.254 and retain a 4th portion for himself. She further stated that in the said settlement deed, the plaintiff, i.e., her brother in O.S.No.4165/1998, to suit his convenience, has entered in the said deed that their father is residing in No.254, but infact, he was residing in 255 only. She further stated that as the property bearing No.254 is self acquired property of their father, he had every right to deal with the same as he wished and he had a legal capacity to execute the settlement deed. She further stated that their father executed 'Will' dated 8/5/1984 which is marked as Ex.P15 bequeathing the portion retained by him, in favour of their elder sister Sarojamma. She further stated that though settlement deed was executed by their father conveying the said portions, as the said 72 O.S.No.4165/1998 c/w O.S.No.7731/2009 portions was part of a single house built about 100 years back, they could not make beneficial use of the same in any manner and also they do not have any resources and no resources provided to bifurcate, demarcate and demolish and improve the said portions and reap benefits out of the same. She stated that their mother Susheelamma died on 10/9/1976 in the first floor of 'A' schedule property. She further stated that since as advised by the elders as the place where their mother breathed last was not auspicious, the plaintiff, i.e., their brother D.R.Hanumantharaju has erected a mud wall surrounding the area for a period of three months.
61. She further stated that after the demise of their mother she herself and her sister along with their father and others visited Mantralaya and wherein their father and themselves expressed their intentions to donate for the construction of a cottage there, accordingly later the plaintiff, that is their brother D.R.Hanumantharaju received a sum of Rs.15,000/-, Rs.12,000/- from their father and Rs.1,000/- each from all the sisters and paid a total sum of Rs.15,000/- 73 O.S.No.4165/1998 c/w O.S.No.7731/2009 for the said purpose. The temporary receipt dated 6/8/1971 is produced at Ex.D6 and the signature of their brother is forthcoming at Ex.D6(a). She further stated that all the documents produced by them clearly shows and those documents are well within the knowledge of their brother D.R.Hanumantharaju and they clearly shows that they themselves and their parents lived in schedule 'A' property since the date of its construction even to this day. She further stated that they have also produced ledgers for the years 1979-80 and 1980-81 and in all the five ledgers their brother to suit his convenience has shown that certain amounts have been paid to them from the partnership firm. She further stated that though their brother has not paid any amount to them, he has created in the said ledger in such a manner that he has paid amount to them.
62. In support of her case, she got marked as many as 34 documents. Ex.D1 is the letter, Ex.D2 is the receipt, Ex.D3 is the agreement of lease, Ex.D4 is the ledger book, Ex.D5 is the wedding card, Ex.D6 is the receipt, Ex.D7 is the Xerox 74 O.S.No.4165/1998 c/w O.S.No.7731/2009 copy of application, Ex.D8 is the original agreement, Ex.D9 is the notice of demand, Ex.D10 is the post card, Ex.D11 and 12 are the receipts, Ex.D13 and 14 are the lease agreement, Ex.D15 to 17 are the receipts, Ex.D18 is the letter, Ex.D19 is the receipt, Ex.D20 and 21 are the invoice and letter, Ex.D22 is the registration card, Ex.D23 and 24 are the letters, Ex.D25 is the share certificate, Ex.D26 and 27 are the marriage invitation cards, Ex.D28 is the certified copy of the sale deeds, Ex.D29 is the ledger book, Ex.D30 is the ledger book, Ex.D31 is the certified copy of the sale deed, Ex.D32 and 33 are the photos, Ex.D34 is the CD. So in view of her above oral and documentary evidence, she has stated that 'A' schedule property is the self acquired and absolute property of their father D.Ramaiah Setty and the partition deed which was effected in 1965, between their father and their brother D.R.Hanumantharaju was only nominal and at any point of time it was not acted upon. So in view of her above oral and documentary evidence she prays for to decree the suit. 75 O.S.No.4165/1998 c/w O.S.No.7731/2009
63. The plaintiffs in O.S.No.7731/2009 and defendants in O.S.No.4165/1998 in order to establish their case, they also got examined one witness as DW3. On going through the evidence of DW3, wherein he has stated that in the year 1964, D.Ramaiah Setty performed the 'Gruha Pravesha' of the first floor house in property No.255, III Main, Chamarajpet, Bangalore and shifted his residence to the newly constructed house along with his wife and children except his eldest daughter P.R.Susheelamma. He further stated that Ramalakshmamma and her husband Nagaiah Setty were also living with D.Ramaiah Setty in the said house from the year 1976 till their death. He further stated that both D.Ramaiah Setty and his wife Susheelamma died in the said house. He further stated that P.R.Sarojamma shifted her residence to the house situated at Chamarajpet in the year 1989 along with her family members. So upon perusal of his evidence, it shows that he has supported the case of plaintiffs in O.S.No.7731/2009 and defendants in O.S.No.4165/1998. 76 O.S.No.4165/1998 c/w O.S.No.7731/2009
64. The plaintiffs in O.S.No.7731/2009 and defendants in O.S.No.4165/1998 in order to establish their case, i.e., M/s.Hanumantharaju and Company firm is belongs to their father, they got examined the Assistant Secretary, APMC Yard as DW1. Upon perusal of the evidence of DW1, it shows that he has stated that the original agreement dated 1/3/1994 executed between APMC and D.R.Hanumantharaju which is marked as Ex.D8. He further stated that in the records brought by him there is requisition by M/s.Hanumantharaju and Company requesting for changing the allotment of shop No.111 and 112 A in respect of site No.635. He further stated that in the said requisition, it has been stated that in shop No.111 and 112A of APMC yard given to the firm since 1981 business is carried on continuously and for this property, the entire investigation has been made and the firm has earned good will and is carrying on business which totally depends upon family maintenance.
65. He further stated that as per the office copy of the letter dated 13/10/1993 written by the Secretary, APMC to 77 O.S.No.4165/1998 c/w O.S.No.7731/2009 the Director it is mentioned site No.635 measuring 20 x 73 feet has been allotted to M/s.Hanumantharaju and Company for a sum of Rs.27,000/-. He further stated that in Ex.D8 it was mentioned that in respect of site No.635 site No.111 and 112-A has been allotted. He further stated that in the office copy of endorsement dated 25/10/2006, it was stated that permission sought by defendant No.9 for transfer of khatha of portion of suit schedule 'C' property has been not granted on the ground that the permission was not obtained for execution of gift deeds.
66. So the plaintiffs in O.S.No.7731/2009 and defendants in O.S.No.4165/1998 in view of their above oral and documentary evidence prays for to decree the suit.
67. On the contrary the defendant No.1 in O.S.No.7731/2009 and plaintiff in O.S.No.4165/1998 in order to establish his case, he himself got examined as PW1 and filed his detailed affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the plaint and 78 O.S.No.4165/1998 c/w O.S.No.7731/2009 further on oath stated before the court that he himself and the defendants in O.S.No.4165/1998 and plaintiffs in O.S.No.7731/2009 are son and daughters of late D.Ramaiah Setty. He further stated that he himself and father D.Ramaiah Setty have jointly purchased the entire property bearing No.235 and 236 then No.254 and 255, III main, Chamarajpet, Bangalore, under a registered sale deed dated 12/5/1956. He further stated that as father wanted to divide the said property by meets and bounds, as such he himself and his father divided the property under the partition deed dated 9/3/1965. He further stated that under the said partition 'A' schedule property of the partition deed was allotted and taken to the share of his father D.Ramaiah Setty and 'B' schedule property of the said document was allotted to his share with common passage to both. He further contended that the said portion allotted to him measuring 30.6 x 60, new No.255, III Main road, Chamarajpet, Bangalore is shown in the schedule as 'A' property. He further stated that after the partition, revenue records were made out in his name and he himself paying outcomings and exercising all rights of ownership and also he 79 O.S.No.4165/1998 c/w O.S.No.7731/2009 has spent amounts and improved the said property. So he stated that except him, none have any right, title or interest over the property and he is in possession of the lumbar room in common passage.
68. He further contended that his father was not well and died in the year 1986 and the defendants, i.e., his sisters in O.S.No.4165/1998 being his daughters continued to reside in the said ground floor allotted to his father after the death of his father and he himself and his family members were residing in the first floor of the property belongs to him. He further stated that their sister requested him in the year 1990 to accommodate them to use two rooms in the first floor of the property belongs to him for the purpose of sleeping, as there was dearth of accommodation to them and taking pity on them he allowed them to use the two rooms, as such they are in possession of the said two rooms in the first floor of the 'A' schedule property measuring 13.6 x 18, i.e., 'B' schedule property. He further contended that since his family used so he requested his sisters to deliver possession of the 'B' 80 O.S.No.4165/1998 c/w O.S.No.7731/2009 schedule property which is in their occupation as there was dire necessity for his family, but the defendants have developed the hostile attitude and have not heeded to his request. He further contended that his sisters in collusion tried to obstruct the usage of common passage by him and his tenants. So he filed suit for permanent injunction in O.S.No.3052/93 against them and they have also instituted another suit for injunction in O.S.No.8209/97 against him by putting forward false, untrue allegations and the said suits were compromised. He further stated that he being the owner of entire 'A' schedule property of the suit entitled to possession of said two rooms, i.e., B schedule property and the suits from the defendants, i.e., his sisters in O.S.No.4165/98, as they have no right to continue in possession of the same. As such they are liable to deliver the possession of the said two rooms. He further stated that the property situated in Chamarajpet and the 'B' schedule property will fetch atleast Rs.250/- per month if let out as on the date of filing of the suit and his sisters are in possession of the same are liable to pay mesne profits to him from the date of refusal till possession of 'B' 81 O.S.No.4165/1998 c/w O.S.No.7731/2009 schedule property from December 1997 until deliver of possession at the rate of Rs.250/- per month.
69. He further stated that the disputes were pending between him and his sisters since 1993 and they are guilty of suppressing all facts and mis-representation and trying to play fraud on him and they got properties and also getting rents and they also refused to marry and they wanted to their own ways and rejected all the proposals of the marriages, as such, neither his father nor he himself could not perform their marriage. He further stated that during the pendency of the present suit their sister filed O.S.No.7731/2009 seeking partition. He further stated that their sister have already executed release deeds in favour of their father and relinquishment of rights by virtue of registered release deeds in the year 1975 and settlement deed executed by his father and now their sisters by suppressing the documents and harassing him and his family members with an intention to knock off the property filed the present false and frivolous suit. 82 O.S.No.4165/1998 c/w O.S.No.7731/2009
70. He further stated that his sisters have filed O.S.No.7731/2009 by suppressing the material facts and they have not disclosed the earlier proceedings, i.e., O.S.No.3052/93, O.S.No.8209/97, O.S.No.849/2002 O.S.No.4396/2000 between him and them and they have not included the property No.254 which stands in the name of his father. He further stated that though his sisters relinquished their right in the properties by executing the release deed by accepting Rs.40,000/- each, again they have filed a false and frivolous suit in O.S.No.7731/2009 seeking for partition. So he contended that his sisters have severed all their connections with the family and they are bound by the release deeds. He further stated that the particulars of registered partition deed has been shown in the release deeds. So he stated that his sisters have gone out of the family much earlier to 1975, as such the question of joint family of Hindu undivided family does not arise as there was complete severance of status in all respects.
83 O.S.No.4165/1998 c/w O.S.No.7731/2009
71. He further stated that subsequently his father has executed registered settlement deed in favour of his sister in O.S.No.7731/2009 in respect of property bearing No.254 measuring 20 x 30 each and his father retained one portion for his maintenance in the said property and his sisters who are defendants in O.S.No.4165/1998 have taken jewels and silver articles and other items after the death of his mother Susheelamma and his father also executed a 'Will' in favour of deceased Sarojamma who is none other than the mother of defendants No.2 to 8, have filed suit in O.S.No.4165/1998 in respect of his share acquired under partition between him and his father on 29/3/1965 through a registered 'Will' dated 8/5/1984. He further stated that though his father has no right in respect of lumber room situated in the common passage obtained a 'Will' in respect of the lumbar room, so he filed O.S.No.4165/1998 seeking declaration to declare the 'Will' dated 9/5/1984 is null and void in respect of lumbar room only and the same is pending consideration. 84 O.S.No.4165/1998 c/w O.S.No.7731/2009
72. He further stated that the defendants in O.S.No.4165/1998 and plaintiffs in O.S.No.7731/2009 have not included the property No.254, where they are residing for partition, as such the suit is not maintainable. He further stated that he filed O.S.No. 3052/93 against her sister for permanent injunction in respect of lumbar room and obtained temporary injunction order and his sisters after lapse of four years they have filed O.S.No.8209/1997 and after clubbing both cases they have been disposed off by virtue of compromise petition dated 3/1/2003. He further stated that his sisters have obstructed for use of water from the well which was situated in common passage, so he filed O.S.No.7731/2009 and after contest the said suit was dismissed on 6/10/2005 and then he filed appeal in RFA No.2038/2005 and the said appeal was allowed on 24/9/2010. He further stated that his sisters are already in possession of portion of properties bearing door No.254 which was allotted by his father through a registered settlement deed dated 29/7/1976. He further stated that the original settlement registered deed dated 29/7/1976 is also with his 85 O.S.No.4165/1998 c/w O.S.No.7731/2009 sisters. So also the original 'Will' dated 8/5/1984 is with his sisters. He further stated that his sisters are not in possession of any of the suit schedule properties shown in O.S.No.7731/2009 and they are residing at No.254, III Main, Chamarajpet, Bangalore and they were put in possession in the said property by virtue of settlement deed dated 29/7/1976. So he filed suit for declaration in O.S.No.4165/1998 seeking possession of 2 rooms which were in the occupation of his sisters and they are in permissive possession of the said rooms bearing No.255 which was acquired by him under a partition. He further stated that after he filing the said suit, i.e., O.S.No.4165/1998 his sisters with vengence and jealously have filed suit for partition in O.S.No.7731/2009, in respect of his self acquired properties. He further stated that after partition between himself and his father in the year 1965 there is no joint family status and subsequently from 1976 his sisters are not in joint family and they are not in possession of the suit schedule properties of O.S.No.7731/2009.
86 O.S.No.4165/1998 c/w O.S.No.7731/2009
73. He further stated that property bearing No.65 is the self acquired property and they have filed eviction against him and the case is pending and he is still in possession of the said property and is running the business of salt, chillies and tamarind in the name and style of "Prakash Traders" and it is exclusive property. So he contended that the suit of the plaintiff is to be rejected for non-inclusion of immovable property and for non-joinder of necessary parties. He further stated that his sisters are not entitled for any share of business at APMC yard, Yeshwanthpur as it is his self acquired property. He further stated that by investing his hard earned money, he has established his business and his sisters have taken away the earning of his father and further D.R.Hanumantharaju dissolved long back and he himself and his two sons started the business in the name and style of M/s.Hanumantharaju and Sons and the shop at APMC yard was allotted to him by APMC and he himself paid sale consideration amount and subsequently he constructed two buildings in the site at APMC yard, he further stated that he has invested money on the business and also obtained loan 87 O.S.No.4165/1998 c/w O.S.No.7731/2009 from the bank for construction of the building and now he has discharged the loan amount of his own income, as such and the said properties are his self earned properties. He further stated that he has already executed two registered gift deeds in favour of his two sons in the year 2005 in respect of property situated at APMC yard and they are in possession of their respective portions. In support of his case, he got marked as many as 33 documents from Ex.P1 to P33. Ex.P1 is the original partition deed dated 29/3/1965. Ex.P2 is the khatha endorsement, Ex.P3 is the tax paid receipt, Ex.P4 is the rough sketch of entire property, Ex.P5 to 8 are the certified copy of judgment in RFA No.2038/2005 and order sheet, decree, compromise petition in O.S.No.3052/1993 c/w O.S.No.820/97, Ex.P9 is the original registered conditional sale deed. Ex.P10 is the original registered gift deed. Ex.P11 to 13 are the certified copies of three release deeds. Ex.P14, 15 certified copy of settlement and 'Will' copy, Ex.P16 is the ledge book. Ex.P18, 17 ledger book No.29, registered memorandum of deposit of titles. Ex.P19 is the registered deed of discharge. Ex.P20 to 24 are the certified copy of 88 O.S.No.4165/1998 c/w O.S.No.7731/2009 plaint. Ex.P25 true extract of register of firms. Ex.P26 to 28 are the office copy of three letters. Ex.P29 is the copy of petition in Misc.156/2008, Ex.P30 is the copy of evidence affidavit in O.S.No.4396/2000. Ex.P31 is the copy of partnership deed. Ex.P32 certified copy of deposition in O.S.No.3142/2002, Ex.P33 is the photographs. So in view of his above oral and documentary evidence he contended that the suit 'A' schedule property was purchased jointly by him and his father, contributed equally and there was complete division of all the properties of the father giving share to the plaintiffs in O.S.No.7731/2009. He further stated that the suit 'A' schedule property is not the self acquired property and absolute property of his father D.Ramaiah Setty by virtue of registered partition deed in the year 1965 and on the basis of the same they have acted upon and subsequently his father late D.Ramaiah Setty has given share to his daughters, i.e., plaintiffs in O.S.No.7731/2009 out of the properties fallen to his share through the settlement deed and his sister also executed registered release deeds. So in view of his above evidence, he prays for to dismiss the suit in 89 O.S.No.4165/1998 c/w O.S.No.7731/2009 O.S.No.7731/2009 and prays for to decree the suit in O.S.No.4165/1998.
74. The learned counsel for the plaintiffs in O.S.No.7731/2009 during the course of his arguments contended that the plaintiffs of the case filed the said suit against the defendants for partition and separate possession of the plaint 'A' to 'C' schedule properties and for declaration in respect of two gift deeds executed by D.R.Hanumantharaju, i.e., defendant No.1 in favour of his sons, i.e., defendant No.9 and 10 and for such other reliefs.
75. He further stated by placing his reliance upon the evidence of DW2 who is the plaintiff No.1 in O.S.No.7731/2009 and defendant No.1 in O.S.No.4165/1998 and also upon the evidence of DW1 who is the Assistant Secretary, APMC yard and DW3 who is a witness examined on behalf of the plaintiffs contended that the suit 'A' schedule property is the self acquired property of late D.Ramaiah Setty. What he contended that late D.Ramaiah Setty out of his own 90 O.S.No.4165/1998 c/w O.S.No.7731/2009 earning and savings purchased immovable property No.66, 4th main road, Chamarajpet, Bangalore, measuring 30 feet x 108 feet on 2/2/1949 and the plaintiffs and the defendant No.1 were all residing in the said property.
76. He further stated that defendant No.1, who is none other than the son of D.Ramaiah Setty has not shown any interest in his education. So even without the consent of his parents he married and his marriage had taken place in the year 1950. He further contended that even the jewels of mother of plaintiffs were given to the wife of defendant No.1 out of love and affection, by the father of plaintiffs. He further contended that defendant No.1 was not having any job as such his father joined him in M/s. Malakalu Shivaramaiah Setty and Sons as worker in 1980 on a monthly salary of Rs.50/-. He further stated that on 5/12/1955 late D.Ramaiah Setty sold the property at 4th main road for sale consideration of Rs.18,000/- and in the said sale deed it was mentioned that the said property was self acquired property of D.Ramaiah Setty. Inspite of that the name of defendant No.1 91 O.S.No.4165/1998 c/w O.S.No.7731/2009 included is one of the seller, as he is the only son of late D.Ramaiah Setty. He further stated that subsequently late D.Ramaiah Setty in view of growing family and to accommodate them and also to lead a comfortable life, he purchased immovable property No.235, III Main road, Chamarajpet, Bangalore, measuring 60 x 108, out of his own earnings for a sum of Rs.22,000/-. He further contended that D.Ramaiah Setty alone has paid the entire amount, i.e., an amount of Rs.18,000/- received by selling the property at 4th main road and remaining amount was arranged by him by selling the jewels of his wife and daughters. So he contended that the defendant No.1 has not contributed a single pie for the purpose of purchasing the property No.235, III Main road, Chamarajpet, Bangalore. He further contended that after purchasing the said property, the same was renovated by D.Ramaiah Setty by spending huge amount and all the family members were residing in the said property.
77. He further contended that in the year 1961-62 late D.Ramaiah Setty demolished the old structure in the hind 92 O.S.No.4165/1998 c/w O.S.No.7731/2009 portion and put up four walls / godowns out of his own earnings and they were let out to tenants and he was receiving the rents from the tenants. He further contended that even for the construction of building in the hind portion defendant No.1 has not contributed a single pie as he was working on a salary of Rs.50/- per month. He further contended that the defendant No.1 was living along with D.Ramaiah Setty in the suit property along with his wife and children. He further contended that the front portion house leased out by D.Ramaiah Setty to one Ramakrishna Prabhu on monthly rent of Rs.150/-. The very agreement of lease dated 2/12/1964 marked before the court shows the said aspect.
78. He further contended that since defendant No.1 was already married and was having three children and also to give the social status in the society and with fond hope that he will take the responsibility of his parents and sisters, D.Ramaiah Setty entered into partition deed dated 29/3/1965 marked at Ex.P1 and in the said partition deed, hind portion measuring 30 x 60 was allotted to his share, later bearing No.255, i.e., 93 O.S.No.4165/1998 c/w O.S.No.7731/2009 suit 'A' schedule property and the front portion measuring 60 x 70.6 was allotted to D.Ramaiah Setty, later bearing No.254 both in III main, Chamarajpet, Bangalore.
79. He further specifically contended that though the partition deed was entered for the reasons as stated by him above in the year 1965, but it is not acted upon and the shares of the defendants have not been allotted and they are intact. He further contended that the family continued to be joint even after the partition deed in the year 1965 and even to this day it is continued. He further contended that the plaintiffs, that is, sisters are residing in the 'A' schedule property including the 'B' schedule property along with defendant No.1, their brother as a member of the joint family. He further contended that the defendant No.1 who is the brother of the plaintiffs contended that as there was dearth of accommodation for his sisters, so they requested him to accommodate two rooms in the first floor in the 'B' schedule property in the year 1990. So by considering their request, he accommodated two rooms for them. So far as the said say of 94 O.S.No.4165/1998 c/w O.S.No.7731/2009 the defendant No.1, what he contended that though the defendant has stated like so, but he has not stated the dearth of accommodation and also he has not produced any proof before the court that before 1990 he was in exclusive possession of 'A' schedule property. He further contended that even the defendant No.1 has not stated or produced any documents about measurement of two rooms in 'A' schedule property. So he contended that all these aspects shows that though there was partition in the year 1965 between Ramaiah Setty and his son D.R.Hanumantharaju who is defendant No.1 in O.S.No.7731/2009, but till this date, the said partition deed was not acted upon and all are residing in joint and there was no severance of joint status.
80. In order to substantiate his contention, i.e., to say the plaintiffs and defendants are all jointly residing in the suit schedule property he placed his reliance upon Ex.D2, D3, D6 and D10 to D25. So by placing his reliance upon the said documents, what he contended that those documents clearly shows that the suit schedule property is the joint family 95 O.S.No.4165/1998 c/w O.S.No.7731/2009 property of the plaintiffs and defendants. He further contended that after the tenant M/s. Traders of India vacated the front old house on 23/12/1981, the eldest daughter of D.Ramaiah Setty, i.e., Sarojamma along with her husband D.Ramaiah Setty and seven children were residing there and even the said fact has been admitted by defendant No.1 during the course of his cross examination at page 42. So he contended that the defendant No.1 has admitted that his sisters, i.e., the plaintiff in O.S.No.7731/2009 were enjoying all the amenities in the first floor of the house as family members and even the said aspect has been admitted by defendant No.1 in his cross-examination at page No.47.
81. He further contended that the defendant No.1 has not produced any document to show that the property allotted in his favour under the partition exclusively bears No.255 and the khatha has been transferred accordingly and also the lumbar room allotted to the share of D.Ramaiah Setty also bears No.255. He further contended that the very documents produced by defendant No.1 at Ex.P2 shows that the khatha 96 O.S.No.4165/1998 c/w O.S.No.7731/2009 was transferred in his name after 29 years of the partition, but it do not carry details of the property about the first floor house with five rooms.
82. He further contended that D.Ramaiah Setty purchased the property in No.255, 4th Main, Chamarajpet, Bangalore for a sale consideration of Rs.17,000/- in 1949 measuring 30 feet x 108 with his son D.Ramaiah Setty, i.e., defendant No.1 was aged about 10 years and that fact is very evident from the answer given by defendant No.1 in the cross- examination at page No.18. He further contended that after the said property was sold by D.Ramaiah Setty in 1955 as per Ex.D28, he purchased the entire property including 'A' schedule property as per Ex.D31 as admitted by defendant No.1.
83. He further contended that the properties situated at 4th main, Chamarajpet, Bangalore was sold for Rs.18,000/- on 5/12/1955 and the name of defendant No.1 D.R.Hanumantharaju is also included as one of the seller. 97 O.S.No.4165/1998 c/w O.S.No.7731/2009 The plaintiffs have produced the said document at Ex.P28. What he contended that though the name of defendant No.1 D.R.Hanumantharaju shown only for nominal sake, it was shown that he is also one of the seller. He further contended that D.Ramaiah Setty purchased property including 'A' schedule property measuring 70 x 108 in 1956 for a total consideration of Rs.22,000/- and he himself paid the sale consideration of Rs.18,000/- received from the property sold in 3rd main and the balance was from selling the jewels of his wife and unmarried daughters. He further contended that though the name of defendant No.1 was included in the sale deed, but he has not contributed any amount and he has not produced any proof to have contributed equally on any amount. He further contended that all the family members including plaintiffs and defendant No.1 occupied the front old house. He further contended that D.Ramaiah Setty in the year 1961, demolished the back side dilapidated portion and put up four halls, godowns in the ground floor which was used as godowns and even the said fact has been admitted by defendant No.1 in his cross-examination at page No.29. 98 O.S.No.4165/1998 c/w O.S.No.7731/2009
84. He further contended that the very documents produced by plaintiff at Ex.D10 and 11 shows that D.Ramaiah Shetty himself put up construction. He further contended that in the year 1962-63 D.Ramaiah Setty put up the house in the first floor above the four godowns comprising of five rooms. Even the said fact has been admitted by defendant No.1 in his cross-examination at page No.31. He further contended that though the defendant No.1 in the cross-examination further stated that he has also contributed some amount for the purpose of construction, but in proof of the same he has not produced any documents. He further contended that after construction of the first floor house in 1962-63 of the family members, i.e., parents, plaintiffs and defendant No.1 occupied the first floor house. He further contended that though the defendant No.1 stated that he only occupied the first floor house, but has not proved the said aspect with any acceptable evidence. He further contended that the very document produced by the plaintiffs at Ex.D12 to 15 shows that D.Ramaiah Setty let out the front house to tenants and also 99 O.S.No.4165/1998 c/w O.S.No.7731/2009 the three godowns. So what he contended that the very documents produced by the plaintiffs at Ex.D16 to 25 clearly goes to show that they are residing in the first floor house along with parents and defendant No.1.
85. He further contended that though in 1965 the partition deed was between the father and son only, there was no severance of status and it was only the father who was taking care of the entire family including defendant No.1, his wife and children at that time out of his own earnings and savings by working as a worker for a period of 25 to 30 years and later as a partner having 19% share in M/s. Malakalu Shivaramaiah Setty and Sons.
86. He further contended that at that time the defendant No.1 was only worker in the said firm and married having two children. So he contended that the entire family continued to live jointly together with common worship and common kitchen. The partition deed was not acted upon and the unmarried daughters, i.e., the plaintiffs were not parties to 100 O.S.No.4165/1998 c/w O.S.No.7731/2009 the partition deed and their share as per Section 8 of the Karnataka Hindu Law Women's Rights Act, 1933 are intact and continued to be joint. He further contended that though the fact of partition between the father and the son is on record and also in the knowledge of the plaintiffs, there is no impact of the partition deed on the plaintiffs, as they continued to live under the care and custody of the father and at that time, father was doing his own business and the defendant No.1 was only a worker. So he contended that the partition deed is not acted upon and has not severed the joint status of the plaintiffs and defendant No.1. In support of his contention he has relied upon the decision rendered in:
(1) 1990(3) KLJ (SUP 264) (HC)(DB) Patel
Chandrappa Vs. Hanumanthappa and others
(2) ILR 1998 Kar page 786 (Subbanna Vs.
Kamaiah).
87. He further contended that D.Ramaiah Setty and his son, i.e., defendant No.1 have unequivocally stated in the partition deed that they are the members of Hindu undivided family and the property is of the joint family property. So what 101 O.S.No.4165/1998 c/w O.S.No.7731/2009 he contended that the very assertion of defendant No.1 that the property is only joint property is without pleadings.
88. He further contended that D.Ramaiah Setty inducted defendant No.1 as partner in M/s.Hanumantharaju and Company in the year 1969-70. He further contended that though defendant No.1 has stated that he has contributed equally for the firm, but he has not produced any document to prove the said aspect, as the total worth of the firm of Rs.2,80,000/- and capital of Rs.10,222/- of both the persons, belong only to the father. In order to substantiate his contention he placed his reliance upon Ex.D7, an application for advance and Ex.P25 extract of registration of forms. He further contended that the entire family was taken care of out of the said business earnings and the defendant No.1 either pleaded or proved that father was only taking care of the plaintiffs and he was taking care of his wife and children.
89. He further contended that in 1981 the 'C' schedule property and site No.635 in APMC, Bangalore was allotted and 102 O.S.No.4165/1998 c/w O.S.No.7731/2009 D.Ramaiah Setty paid the entire sale consideration of Rs.27,000/- to the APMC yard and the said 'C' schedule property was initially given on lease by APMC yard. He further contended that since site No.635 was not conductive, so D.Ramaiah Setty requested that the 'C' schedule property be allotted to the sale consideration paid to site No.635 may be considered as sale consideration towards schedule 'C' property. So he contended that 'C' schedule property is the self acquired property of D.Ramaiah Setty and on record only it was allotted to the firm M/s.Hanumantharaju and Company, it is the property of the firm. He further contended that from evidence given by DW1 shows that a requisition was given by the firm requesting for changing the allotment of 'C' schedule property instead of site No.635 and in the requisition it has been stated that since 1981 business is being carried on continuously and for this property the entire investment has been made and the firm has earned goodwill and is carrying on business which totally depends upon the family maintenance.
103 O.S.No.4165/1998 c/w O.S.No.7731/2009
90. He further contended that from the evidence given by DW1 also shows that 'C' schedule property has been made to M/s.Hanumantharaju and Company and that the APMC has issued licence in the name of said company. So he contended that the very evidence given by him clearly shows that 'C' schedule property is the property of the firm, but not the exclusive property of defendant No.1 D.R.Hanumantharaju. He further contended that though in the year 1975 the plaintiff in O.S.No.7731/2009 executed three release deeds in favour of the parents by showing that they have received Rs.40,000/- each, the same was also not acted upon, as they continued to live along with the parents and the defendant No.1. He further contended that they were not given Rs.40,000/- on the day or they did not severe their relationship with the joint family. He further contended that there was no necessity to execute such release deeds, as the plaintiffs were taken care of by the father before and after the said release deeds. So he contended that the joint status was not at all severed.
104 O.S.No.4165/1998 c/w O.S.No.7731/2009
91. He further contended that in the year 1976 father, i.e., D.Ramaiah Setty settled three portions in the front old house in favour of the plaintiffs which are portions of the entire single house, as such portions were not demarcated or actually handed over to them, so that they can made beneficial use of the same for their livelihood. He further contended that when that would be the case, they continued to live under the care and custody of the father and the father has settled the said portions in his own property and the defendant No.1 has not given any portion or share in his share, as such the shares of the plaintiffs continued with 'A' to 'C' schedule properties and they are intact. He further contended that as the partition in the year 1965 was between only the father and son, it is not a complete partition in the eye of law, as such the plaintiffs and defendant No.1 continued as the joint family members. So what he contended that partition can take place at any point of time so long as family is in joint, as such the question of limitation does not arise. In support of his contention he has relied upon the decision reported in 2013(4) 105 O.S.No.4165/1998 c/w O.S.No.7731/2009 AKR page 89, Shivasharanappa and others Vs. Sangameshwara and others.
92. He further contended that the very oral and documentary evidence adduced and produced on behalf of the plaintiffs clearly goes to show that the suit schedule properties are the joint family properties of both plaintiffs and defendants. So in view of his above arguments and decisions he urged to answer issue No.1 and 2 in the Affirmative and issue No.11 and 12 in the Negative.
93. The learned counsel for the defendants in O.S.No.7731/2009 and plaintiff in O.S.No.4165/1998 during the course of his arguments contended that D.R.Hanumantharaju, i.e., defendant No.1 in O.S.No.7731/2009 and his father late D.Ramaiah Setty jointly purchased the entire property old No.235 and 236 and new No.254 and 255 under registered sale deed dated 12/5/1956 and divided the same under registered partition deed dated 9/3/1965 in which 'A' schedule property was allotted to the 106 O.S.No.4165/1998 c/w O.S.No.7731/2009 father D.Ramaiah Setty and 'B' schedule of the partition deed was allotted to D.Ramaiah Setty, i.e., defendant No.1 with certain common rights relating to passage, well and lumbar room. So he contended that the defendant No.1 became the owner of property measuring 30 ½ and 60 feet bearing new No.255 which is shown as 'A' schedule property in the plaint. He further contended that after the partition, the revenue records were made out in the name of defendant No.1 and his father separately. He further contended that the father D.Ramaiah Setty was died on 13/3/1986 and defendant No.1 along with his family members residing in the first floor of the said property and the plaintiffs in O.S.No.7731/2009 residing in a portion allotted to father bearing No.254 along with father, mother and another deceased sister Sarojamma. He further contended that in about 1990 the sisters, i.e., the plaintiffs requested the defendant No.1 to accommodate them to use two rooms in the first floor of the property belongs to him for the purpose of sleeping, as there was dearth of accommodation. So defendant No.1 permitted the sisters to use two rooms which is described as 'B' schedule in the plaint. 107 O.S.No.4165/1998 c/w O.S.No.7731/2009 So he contended that the sisters, i.e., plaintiffs are in permissive possession of two rooms, as such he sought for declaration and also possession of two rooms. He further contended that subsequently defendant No.1 requested the sisters, i.e., plaintiff to deliver possession of the said two rooms, but they failed to heed to his request and even started to causing obstruction for use of common passage. So the defendant No.1 filed O.S.No.3052/1993 against them seeking for injunction and even the sisters also filed suit O.S.No.4165/1998 against him. So what he contended that in view of the above said dispute the defendant No.1 has filed the present suit seeking for declaration and possession of the said two rooms and for mesne profits.
94. He further contended that it is nobodies case that there was any ancestral property or any ancestral nucleus for purchasing the property. He further contended that except for casual oral settlement, the plaintiffs have not placed any materials in order to prove their case. He further contended that on the contrary, defendant No.1 has placed innumerable 108 O.S.No.4165/1998 c/w O.S.No.7731/2009 materials to prove that the property is purchased jointly and the same has been acted upon by both. He further contended that plaintiffs have made allegations for the first time in the year 2009 against defendant No.1, that too, after lapse of 53 years from the date of purchase and after a lapse of 44 years after registered partition deed of 1965. So he contended that these circumstances itself establishes the allegations made by the plaintiff are only for the purpose of filing the present suit. He further contended that the parties have been litigating since 1990 and it was only in 2009 for the first time such allegations are made as a counterblast as D.R.Hanumantharaju, i.e., defendant No.1 filed suit in O.S.No.4165/1998 seeking possession of two rooms. He further contended that the plaintiffs have not instituted any suit for reopening of the partition on the ground that it is unequal or otherwise, as such the partition that had taken place between father and son in the year 1965 is binding on them, as they have obtained property out of father's share under settlement deed, as such they are estopped from saying that the suit schedule properties are the joint family 109 O.S.No.4165/1998 c/w O.S.No.7731/2009 properties. He further contended that the plaintiffs with oblique motive only in respect of the portion of defendant No.1 excluding the portion of the father they have filed the present suit. So he contended that the very act of the plaintiff shows that they have not approached this court with clean hands.
95. He further contended that it is the contention of plaintiffs that the suit schedule property is the self acquisition of father under registered sale deed dated 12/5/1956. What he contended that though they contended like so, but the very said document shows that the property was purchased in the joint names of both D.Ramaiah Setty and D.R.Hanumantharaju and the property is purchased for a sum of Rs.22,000/-, i.e., property No.254, 255, Chamarajpet, Bangalore, measuring 60 x 108 feet with old constructions. He further contended that earlier the father and son had purchased another property and at the time of sale of the earlier property both father and son had executed the sale deed of 1955 as vendors, the said sum was available with both father and son and by the time of purchase of schedule 110 O.S.No.4165/1998 c/w O.S.No.7731/2009 property both father and son were earning separately and purchased the property. So what he contended that if it was otherwise father would have purchased in his name only and would not have included the name of son D.R.Hanumantharaju. So what he contended that the recitals in the sale deed in favour of D.Ramaiah Setty and D.R.Hanumantharaju clearly establish that it is purchased by both father and son who had contributed for the purchase of property and they were co-owners. He further contended that even the said aspect has been admitted by DW2, i.e., plaintiff No.1 in the cross-examination that she does not know the monitory transaction that transpired at the time of purchase.
96. He further contended that Ex.P1, i.e., registered partition deed between father and son shows that the same has come into existence at an undisputed point of time. The recitals in the registered deed itself clearly establishes that the same was jointly purchased and improved and they wanted to divide by metes and bounds and the same is duly executed and registered which are not challenged by the father during 111 O.S.No.4165/1998 c/w O.S.No.7731/2009 his life time and even plaintiffs have not questioned the said documents during the life time of their father. He further contended that in the partition admittedly, larger measurements given to the father and small measurements is given to son out of entire property. He further contended that after partition both father and son have acted upon the documents and have got the mutations made and D.R.Hanumantharaju shifted to his portion and both were paying revenue in their own names separately. He further contended that defendant No.1 D.R.Hanumantharaju also improved his portion and in fact 2nd floor was also constructed by his son Manohar and he and his family started residing in the said portions and even plaintiffs do not raise any objection for the same.
97. He further contended that D.Ramaiah Setty obtained three registered release deeds from the daughters in which also there is reference to joint purchase, joint improvement, registered partition and amount of Rs.40,000/- each is paid on 6/10/1975 itself and daughters, i.e., plaintiffs 112 O.S.No.4165/1998 c/w O.S.No.7731/2009 being executants are bound by the recitals. In support of his contention he placed his reliance upon Ex.P11 to P13. He further contended that on 29/7/1976 D.Ramaiah Setty executed settlement deed as per Ex.P14 settling portions out of his share on the three daughters each, measuring 20 x 30 feet. In the said document also recitals of joint purchase, improvement and partition are mentioned and it is stated that D.R.Hanumantharaju's share is given and he is the owner of property and he is settling the same on daughters. He further contended that Ex.P14 also came into existence at an undisputed point of time and plaintiffs have accepted the portions settled on them with condition of sale to brother which clearly establishes the factum of the said document has been acted upon.
98. He further contended that on 8/5/1984 a registered 'Will' is executed canceling the earlier 'Will' dated 29/7/1976 bequeathing one portion 20 x 30 retained by D.R.Hanumantharaju to his another daughter Sarojamma wherein also recitals about purchase, partition, condition of 113 O.S.No.4165/1998 c/w O.S.No.7731/2009 sale to brother and other aspects forthcoming. So what he contended that all these aspects clearly shows father acted in terms of the partition. He further contended that the plaintiffs, i.e., sisters have admitted the purchase and partition in various litigation after the death of D.Ramaiah Setty. He further contended that in a suit filed by defendant No.1 against the plaintiffs in O.S.No.3052/1993 wherein the plaintiffs herein filed their written statement and wherein they have admitted the partition of property between defendant No.1 and their father D.Ramaiah Setty. He further contended that O.S.No.8209/1997 instituted by the plaintiffs herein against defendant No.1 regarding car shed wherein at para 4 of plaint they have admitted with regard to partition between the father and son. So also in O.S.No.4165/1998, i.e., connected matter wherein the plaintiffs herein in the written statement admitted partition.
99. He further contended that in O.S.No.4396/2000 the plaintiffs herein in their written statement at para No.2 admitted with regard to partition, settlement and 'Will'. So 114 O.S.No.4165/1998 c/w O.S.No.7731/2009 also he contended that even in suit filed in O.S.No.849/2002 and O.S.No.3052/1993 and O.S.No.8209/1997 the plaintiffs herein admitted with regard to the partition and the said suits were ended in compromise. In order to substantiate his contention, i.e., to say with regard to the admissions by the plaintiffs in the above referred suits filed in between the parties, he placed his reliance upon Ex.P8, P20, P21, P22 to
25. He further contended that the very judgment rendered by Hon'ble High Court of Karnataka in RFA No.2038/2005 wherein observation was made that partition is accepted. He further contended that in Ex.P5 to P7 reference has been made with regard to joint purchase by father and son on 12/5/1956. So he contended that ownership and title of defendant No.1 over 'A' schedule property is accepted by the plaintiffs. He further contended that Ex.P13, i.e., evidence affidavit of plaintiff in the suit O.S.No.4396/2000 at para 5 wherein it is stated that partition effected under registered partition, 'B' schedule has fallen to the share of D.R.Hanumantharaju. So he contended that all these aspects and all other documents, i.e., settlement deed and release 115 O.S.No.4165/1998 c/w O.S.No.7731/2009 deed are admitted by the plaintiffs. When such would be the case, whatever the stand taken by the plaintiffs cannot be accepted.
100. He further contended that 'B' schedule property business is not the family business. It is the case of the plaintiffs that D.Ramaiah Setty himself started business taking his son, i.e., defendant No.1 as partner nominally. He further contended that though they contended like so, but in order to prove the said aspect no acceptable evidence placed before the court. On the contrary the very registered partnership deed and the manner in which the same is carried on under the tenant at the shop premises goes to falsify the contention of the plaintiffs. He further contended that plaintiffs have not filed any suit for dissolution of the firm or for accounts of the firm and they went to claim share, in the movable, i.e., business which cannot be entertained as such. So what he contended that the plaintiffs ought to have instituted suit for accounts of dissolved firm, if at all they have any right in the business either profits or loss paying court fee. 116 O.S.No.4165/1998 c/w O.S.No.7731/2009 He further contended that article 5 of the limitation act also is a bar to claim profits of the dissolved firm after three years from the date of dissolution of the firm which was immediately on the death of the father, i.e., during 13/3/1986, as such they cannot claim any profits in 2009. He further contended that the very document produced by the defendant No.1 D.R.Hanumantharaju at Ex.P25 and 31 shows that only the father and the son are the partners and there was no communion of interest. So what he contended that 'B' schedule property business is a business of two individuals and admittedly father died on 13/3/1986, as there were only two partners as and from the date of death of the father, the firm is deemed to be dissolved and it automatically became proprietor concern of defendant No.1, i.e., D.R.Hanumantharaju.
101. He further contended that defendant No.1 has acted as Proprietor of the business and also he has given intimation to all concern, as such the plaintiffs have no share of any kind whatsoever in the 'B' schedule property. He further contended 117 O.S.No.4165/1998 c/w O.S.No.7731/2009 that even the partnership deed which is placed before the court clearly shows that it does not contemplate the contingency on the death of any one of the partners and unless it is specifically mentioned in the partnership deed that on the death of anyone of its legal representatives have to be taken as partners. So he contended that when such would be the case, the question of any others coming into the partnership firm does not arise. In support of his contention, he placed his reliance upon section 42 of the Partnership Act and by placing his reliance upon the said provision what he contended that the said provision is clear and there are being no contract, as such the plaintiffs, i.e., daughters of D.Ramaiah Setty cannot be deemed to be partners.
102. He further contended that 'C' schedule property bearing No.111-112-A was originally vacant site allotted by APMC and subsequently constructed by D.R.Hanumantharaju, i.e., defendant No.1 at APMC yard, Yeshwanthpur. He further contended that the very document produced by defendant No.1 at Ex.D8, i.e., agreement with 118 O.S.No.4165/1998 c/w O.S.No.7731/2009 regard to the said property from APMC in the name of M/s.Hanumantharaju and Company as its proprietor shows that the said property is belongs to defendant No.1. He further contended that the very evidence given by DW1, i.e., the official of APMC shows that the 'C' schedule property has been allotted to D.R.Hanumantharaju and proprietor of the business. So also the very document produced by defendant No.1 at Ex.P9, i.e., conditional sale deed also shows that the same has been executed in favour of D.R.Hanumantharaju, Proprietor of the business. He further contended that in the said document it is mentioned that only after complying with the conditions absolute sale deed will be issued. So what he contended that the very evidence of DW1 and the documents produced by defendant No.1 at Ex.D8 and P9 clearly shows that the 'C' schedule property is the property belongs to defendant No.1. So he contended that whatever the claim made by the plaintiffs with regard to this property and business are all barred by limitation. So in view of his above arguments he urged to answer issue No.1 and 2 in the Negative and issue No.11 and 12 in the Affirmative. 119 O.S.No.4165/1998 c/w O.S.No.7731/2009
103. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records and also the decisions relied upon by the respective counsels for the parties.
104. Admittedly O.S.No.4165/1998 is instituted by D.R.Hanumantharaju S/o D.Ramaiah Setty against defendant No.1 to 3, daughters of late D.Ramaiah Setty for declaration and possession in respect of two rooms in the first floor of the suit schedule property. So also O.S.No.7731/2009 is instituted by sisters against their brother D.R.Hanumantharaju and others for partition and separate possession of the plaint 'A' to 'C' schedule properties and for declaration and such other reliefs. So also the records shows that both suits are clubbed and common evidence recorded in O.S.No.4165/1998. Admittedly the said suit is earlier suit and both suits are directed to be disposed off together as per the order passed by Hon'ble High Court of Karnataka in W.P.No.2175/2011. Upon hearing the rival contentions of the 120 O.S.No.4165/1998 c/w O.S.No.7731/2009 respective parties and also upon hearing the arguments of the respective counsels for the parties, it clearly shows that absolutely there is no dispute with regard to the relationship between the parties is concerned. It is the case of the plaintiff that suit 'A' schedule property is the self acquired and absolute property of their father D.Ramaiah Setty and the partition effected in 1965 between defendant No.1 and their father D.Ramaiah Setty was nominal and not acted upon. On the contrary, it is the contention of the defendant No.1 that the suit 'A' schedule property was purchased jointly by him and his father by contributing equally and there was partition in between himself and his father in the year 1965 and subsequently his father D.Ramaiah Setty given properties fallen to his share to all his daughters, i.e., the plaintiffs.
105. It is the contention of the plaintiff that the defendant No.1 was jobless and just in order to give social status, his name has been included in the sale deed dated 12/5/1956. Even the learned counsel for the plaintiff on the basis of the said evidence given by DW2, who is plaintiff in 121 O.S.No.4165/1998 c/w O.S.No.7731/2009 O.S.No.7731/2009 contended that at that particular point of time, defendant No.1 D.R.Hanumantharaju was not doing any work, so his father D.R.Hanumantharaju got joined him in Malakala Shivarama Setty and company on the monthly salary of Rs.50/-. So he contended that when that would be the case and when he was hardly about 20-22 years, he has no capacity to contribute for the purpose of purchasing 'A' schedule property in the year 1956. So far as the said contention of the learned counsel for the plaintiff is concerned, it can be said that, the said arguments cannot be accepted for the simple reason, as the plaintiffs themselves in Ex.P24, i.e., plaint copy in O.S.No.849/2002, wherein they have admitted that the purchase of property bearing No.254 and 255 jointly in the name of D.Ramaiah Setty and defendant No.1 D.R.Hanumantharaju under the registered sale deed dated 12/5/1956. So also in Ex.P22, i.e., certified copy of plaint in O.S.No.8207/1997, wherein the plaintiffs herein admitted that their father and their brother D.R.Hanumantharaju have purchased property No.254 and 255 under the registered sale deed dated 12/5/1956. When that would be the case, the 122 O.S.No.4165/1998 c/w O.S.No.7731/2009 contention of the learned counsel for the plaintiffs that for nominal sake and to give social status to D.R.Hanumantharaju, i.e., defendant No.1 herein in O.S.No.7731/2009, his name has been included in the sale deed in the year 1956, cannot be accepted. Absolutely there is no acceptable material has been placed before the court to show that for nominal sake and to give social status, his name has been incorporated in the sale deed dated 1956. When that would be the case and when there would be a registered sale deed dated 12/5/1956, whatever the contention of the learned counsel for the plaintiffs cannot be accepted.
106. Now coming to the contention taken by the learned counsel for the plaintiffs that partition deed dated 29/3/1965 that was entered between D.Ramaiah Setty and D.R.Hanumantharaju is only a nominal partition deed and not acted upon. So far as the said contention of the learned counsel for the plaintiffs is concerned, it can be said that though he contended like so, but in order to substantiate his contention, no acceptable neither oral nor documentary 123 O.S.No.4165/1998 c/w O.S.No.7731/2009 evidence has been placed before the court. On the other hand, the very evidence given by DW2, i.e., plaintiff No.1 in O.S.No.7731/2009, clearly shows that wherein in the earlier litigations between the parties wherein she has admitted with regard to execution of partition deed between D.Ramaiah Setty and D.R.Hanumantharaju and the recitals shown therein. So also they have admitted with regard to the registered release deeds executed by them in favour of their father and mother and also admitted with regard to the settlement deeds in their favour by their father.
107. In this regard it would be useful to refer the admission given by DW2 during the course of her cross examination at page No.36, wherein she admits as under:
"It is true to suggest that my evidence affidavit P.30 in para 5, I have stated that there was partition between my father and my brother and registered partition deed dated 29/3/1965 was executed between them and that 'A' schedule was allotted to my father and 'B' schedule of the deed was allotted 124 O.S.No.4165/1998 c/w O.S.No.7731/2009 to my brother. The said portion is marked as Ex.P30(b)."
108. The above evidence given by DW2 who is the plaintiff No.1 in O.S.No.7731/2009 clearly goes to show that there was already partition in between his father and the son.
109. So also the very document produced by the defendant No.1 herein at Ex.P22, i.e., the plaint copy in O.S.No.8209/1997 and Ex.P23, i.e., the written statement in O.S.No.4386/2000 clearly shows that wherein the plaintiff No.1 herein admits Ex.P8 compromise petition and signatures of all sisters and she also admits the signature of her father at Ex.P1 partition deed. So also in her cross-examination at page No.39, in unequivocal terms she admitted with regard to the factum of giving of different portions to them out of the portions fallen to his father's share and also 'Will' and further she admits that her father and her brother, i.e., defendant No.1 in O.S.No.7731/2009 were paying tax to their respective portions as got by them under Ex.P1 partition deed. So the above clinching aspect clearly goes to falsify the contention of 125 O.S.No.4165/1998 c/w O.S.No.7731/2009 the learned counsel for plaintiffs that Ex.P1 partition deed is a nominal partition deed and it is not at all acted upon.
110. As it is already stated above, the very admission given by plaintiffs herein with regard to the above referred litigations wherein they have admitted with regard to the purchase of 'A' schedule property jointly by D.Ramaiah Setty and D.R.Hanumantharaju by contributing equally even the said aspect has been admitted by DW2 during the course of her cross examination at page No.41 which reads as under:
"It is true to suggest that plaintiff (i.e., defendant No.1 herein) had joined for work with my father during his young age and at that time both my father and brother were having their own income."
111. So also at page No.42 she again admits as under:
"It is true to suggest that the sale deed for purchasing property No.254 and 255 is executing jointly in the name of father and brother."126 O.S.No.4165/1998 c/w O.S.No.7731/2009
112. She further admits that earlier property was sold both by their father and brother executed the sale deed as vendors. So these admissions by DW2 clearly goes to falsify the bald contention taken by them that the 'A' schedule property is the exclusive property of D.Ramaiah Setty and he himself paid the entire sale consideration amount and only for the nominal sake and to give social status to defendant No.1 his name has been incorporated in the sale deed.
113. The plaintiffs contended that for the purpose of purchasing 'A' schedule property their father sold the jewels of their mother and also themselves, but in order to substantiate the said aspect no acceptable material has been placed before the court. Under such circumstances, it can be said that in the absence of production of acceptable evidence the bald contention of the plaintiffs cannot be accepted and also such contention would not suffice their case. So far as this aspect is concerned, DW2 in her cross-examination at page No.73, admitted that she does not have any documents to show her mother's jewels were sold. So also at page No.75 her cross- 127 O.S.No.4165/1998 c/w O.S.No.7731/2009 examination she admits that she does not know monitory transaction that has taken place for purchasing the property in 1956. So also in page No.76 of her cross-examination she admits that in none of the documents it is mentioned that only to give social status to brother, he is included in partition. So the above evidence given by DW2, that is, plaintiff No.1 in O.S.No.7731/2009 clearly goes to falsify the stand taken by them in the present suit. When such would be the case, whatever the contention taken by the learned counsel for the plaintiffs cannot be accepted.
114. As it is already stated above, with regard to the admission of the plaintiff No.1 in other litigation between them with regard to the partition deed, release deed and settlement deed, when that would be the case, it can be said that such admissions in pleadings or judicial proceedings admissible as per section 58 of the Indian Evidence Act. At this juncture, it would be useful to refer the decision rendered in AIR 1974 SC 471 between Nagindas Ramdas Vs. Dalpatram Iccharam @ 128 O.S.No.4165/1998 c/w O.S.No.7731/2009 Brijram and others, wherein it was held by their lordship as under:
"Admissions in pleadings or judicial admissions, admissible under section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The formal class of admissions are fully binding on the party that makes them and constitute a waver of proof. They by themselves can be made a foundation of the rights of the parties. On the other hand, evidentiary admissions which are respectable at the trial as evidence, or by themselves not conclusive, they can be shown to be wrong".
115. Looking into the dictum laid down by their lordship in the above, it can be said that the above said decision is aptly applicable to the present case in hand in view of the admissions made by plaintiff No.1 herein in the earlier litigations between themselves and their brother. So under any stretch of imagination whatever the contention taken by the plaintiffs cannot be accepted. Admittedly it is not the case 129 O.S.No.4165/1998 c/w O.S.No.7731/2009 of the plaintiffs that Ex.P1 partition deed has come into existence by playing fraud or behind their back or without their knowledge. When that would be the case, the partition deed has to be accepted. In this regard, the ratio laid down by their lordship in decision rendered in ILR 2012 Kar page 5420, between Sri.Rudrappa Vs. H.R.Shivakumar and others, is directly applicable to the present case in hand.
116. Admittedly in the present case even though partition deed was registered in the year 1965, either D.Ramaiah Setty, the father of the plaintiffs and defendant No.1 and the plaintiffs herein not challenged the legal partition till the death of D.Ramaiah Setty in the year 1986. No doubt the plaintiffs herein filed the present suit in the year 2009, but it is a fact that till 2009 also they have not challenged the partition deed which was entered between the father and brother in the year 1965. So looking to this aspect it can be said that the above cited decision is directly applicable to the present case in hand and it can be said that the contentions taken by the plaintiffs cannot be accepted.
130 O.S.No.4165/1998 c/w O.S.No.7731/2009
117. Another important aspect to be taken note of here is that even upon perusal of the pleadings pleaded by the plaintiffs in their plaint, it shows that they have not at all disputed the factum of partition deed in between D.Ramaiah Setty and D.R.Hanumantharaju, release deed executed by them in favour of their parents and settlement deed executed by their father in their favour. When that would be the case and when the registered documents are on records, whatever the contentions taken by the plaintiffs in the absence of acceptable evidence, their contention cannot be accepted.
118. Another important aspect and why the contentions taken by the plaintiffs cannot be accepted is that DW2 in her cross-examination in unequivocal terms admitted with regard to the partition, release deeds and settlement deeds. At this juncture it would be useful to refer the evidence given by DW2 at page No.32, during the course of her cross examination which reads as under:
131 O.S.No.4165/1998 c/w O.S.No.7731/2009
"It is true to suggest that in the settlement deed, my father has given different portions to each of we defendant No.1 to 3 in property No.254 and accordingly each of us have got khatha in our names for our respective portions. We are all having khatha certificates and khatha extracts of our respective portions and there is no difficulty to produce them in this case."
119. So also DW2 in her cross-examination at page No.34 admits as under:
"It is true to suggest that we three defendants are the owners of the respective portions of the property given to us by my father under the settlement deed and Sarojamma and her children are the owners of the portions given to Sarojamma".
120. Further she admits as under:
"After the death of my father in the year 1986, we defendants have not given notice to the plaintiff demanding each share or any amount of business."
121. So also at page No.35, she admits that:
132 O.S.No.4165/1998 c/w O.S.No.7731/2009
"It is true to suggest that from 1986 till we filed suit in the years 2009 we have not issued notice to the plaintiff either demanding partition or amount or in respect of the firm and that for the first time we have made such claims in the year 2009".
122. She further in the same page at the end admits that:
"I have given addresses of property No.254, CC of affidavit evidence page No.30 and 35."
123. The above evidence given by DW2 clearly goes to show that under any stretch of imagination the contention taken by them that 1965 partition deed is a nominal partition deed and the same was not at all acted upon cannot be accepted.
124. On the other hand, the above evidence given by her clearly goes to show that in pursuance of the partition deed in the year 1965 as per Ex.P1 their father D.Ramaiah Setty and brother D.R.Hanumantharaju acted upon and subsequently 133 O.S.No.4165/1998 c/w O.S.No.7731/2009 their father through settlement deed given properties to all his daughters under settlement deed.
125. The learned counsel for the plaintiffs contended that though there was registered release deed as per Ex.P11 to P13 but the amount of Rs.40,000/-, each to the daughters, as mentioned in the said release deeds have not been given to the plaintiffs. So he contended that on the basis of the said document it cannot be said that the plaintiffs in pursuance of Ex.P11 to P13 relinquished their rights in the suit schedule properties. So far as the said contention of the learned counsel for the plaintiff is concerned, it can be said that though he contended like so, but the very document produced by the defendant No.1 at Ex.P11 to P13 speaks with regard to the payment of Rs.40,000/- each to the sisters and the DW2 who is plaintiff No.1 in O.S.No.7731/2009 admitted in para 29 page 10 of her evidence with regard to execution of the three registered release deeds on 6/10/1995 and also admits that her brother D.R.Hanumantharaju, i.e., defendant No.1 herein is not a party to the release deeds. So also in para 31 she 134 O.S.No.4165/1998 c/w O.S.No.7731/2009 admits with regard to settlement deed as per Ex.P14 dated 29/7/1976 by father in their favour by giving property measuring 20 x 30 feet each in property No.254 and she has also spoken about the 'Will' of father dated 8/5/1984. So also she admits for having taken portions from their father. Under such circumstances the arguments canvassed by the learned counsel for the plaintiffs that though it was shown in Ex.P11 to 13 with regard to payment of Rs.40,000/- each to the plaintiffs but the same has not been received by them cannot be accepted.
126. The learned counsel for the plaintiffs during the course of his arguments contended that the plaintiffs are unmarried daughters of late D.R.Hanumantharaju. When that would be the case they are entitled for share in respect of suit schedule properties. In support of his contention he placed his reliance upon section 8 of Karnataka Hindu Law Women's Rights Act, 1933. So also in support of his case, he has relied upon the decision reported in 2013(4) AKR page 89, between Shivasharana and others Vs. Sangameshwar and others. By 135 O.S.No.4165/1998 c/w O.S.No.7731/2009 placing his reliance upon the above said provision and decision he contended that the plaintiffs being the unmarried daughters of deceased D.Ramaiah Setty are entitled for share in all the suit schedule properties.
127. So far as the said contention taken by the learned counsel for the plaintiff is concerned, it can be said that admittedly the very facts pleaded by the plaintiffs in the plaint shows that they claims that the suit schedule property is the self acquired property of their father D.Ramaiah Setty, but not ancestral property or joint family property. When that would be the case, only Hindu Succession Act is applicable, but not Karnataka Hindu Women's Rights Act, 1933, as because the plaintiffs at one stage admits that their father and their brother D.R.Hanumantharaju purchased 'A' schedule property in the year 1956 and the partition of the same in the year 1965 and at another stage they claims that 'A' schedule property is self acquired property of their father. If that would be the case, if the property is purchased in 1956 is the self acquired property of late D.Ramaiah Setty, certainly section 8 136 O.S.No.4165/1998 c/w O.S.No.7731/2009 of the Karnataka Hindu Law Women's Right to Property Act, cannot be made applicable. I have gone through the decision relied upon by the learned counsel for the plaintiff. Looking into the facts and circumstances of the present case, it can be said that the said decision is not helpful to the case of plaintiff.
128. The plaintiffs in support of their case examined one witness as PW3. Upon perusal of the evidence of this PW3 though in his chief examination spoken supporting the case of plaintiffs, but the very evidence given by him in the cross- examination goes to show that he does not know anything about the present case. At this juncture it would be just and appropriate to quote the evidence given by PW3, during the course of his cross examination at page No.3, last para, wherein he admitted as under:
"It is true to suggest that I do not know the contents of my evidence affidavit and when he asked me to sign, I have signed it".137 O.S.No.4165/1998 c/w O.S.No.7731/2009
129. The above evidence given by PW3 in the cross- examination clearly goes to show that he does not know anything about the present case and he has come before the court at the instance of plaintiffs only. So it is needless to say that the evidence of this witness is not helpful to the case of plaintiffs. As it is already discussed above and also the materials placed before the court shows that there is over whelming documentary evidence and those documents has been admitted by the plaintiffs both in their pleadings as well as in their evidence.
130. Per contra the plaintiffs except their oral say they have not produced any documentary evidence. Under such circumstances, it can be said that as per section 91 and 92 of the Indian Evidence Act, oral evidence in variation of the documentary evidence is not permissible, as because the documentary evidence would prevail over the oral evidence. The evidence on record, i.e., the evidence given by DW2 the plaintiff in O.S.No.7731/2009 clearly goes to show that some of the original documents are with her only, inspite of that she 138 O.S.No.4165/1998 c/w O.S.No.7731/2009 has not chosen to produce the said original documents. So from the very said conduct of the plaintiffs inference can be drawn that the plaintiffs for the best reasons known to them deliberately withheld the original documents. Under such circumstances, it can be said that there is no much force in the submission made by the learned counsel for the plaintiffs. So by analyzing over all oral and documentary evidence adduced and produced by the respective parties, it can be said that the plaintiffs have failed to prove issue No.1 and 2 and the defendant No.1 has succeeded to prove issue No.11 and
12. Accordingly issue No.1 and 2 are answered in the Negative and issue No.11 and 12 are answered in the Affirmative.
131. Issue No.3, 4, and 15 in O.S.No.7731/2009: All these three issues are inter-connected. Therefore they have been taken together for common consideration and discussion.
132. The learned counsel for the plaintiff by placing his reliance upon the evidence of DW2, who is plaintiff No.1 in O.S.No.7731/2009 contended that D.Ramaiah Setty out of his 139 O.S.No.4165/1998 c/w O.S.No.7731/2009 own earnings established his own shop by starting the firm named M/s.Hanumantharaju and Company on 2/9/1966 and further contended that D.Ramaiah Setty nominally offered his son, i.e., defendant No.1 D.R.Hanumantharaju equal share of 50% of the profits and loss, though D.Ramaiah Setty made the entire investment. So he contended that the entire firm belongs to D.Ramaiah Setty. He further contended that D.Ramaiah Setty inducted his son D.R.Hanumantharaju as a partner in M/s.Hanumantharaju and Company in the year 1969-70. He further contended that though D.R.Hanumantharaju contended that he has contributed equally for the firm, but in order to substantiate the same no acceptable evidence has been placed before the court. He further contended that total worth of firm is Rs.2,80,000/- and capital of Rs.10,222/- of both father and son, but the entire amount belongs to D.Ramaiah Setty. In order to substantiate his contention, he placed his reliance upon Ex.D7, i.e., application for advance and Ex.P25 extract of registrar of firms. He further contended that even the entire family was taken care of out of said business earnings. He 140 O.S.No.4165/1998 c/w O.S.No.7731/2009 further contended that the defendant No.1 no where stated in his written statement or acceptable evidence has been placed before the court to show that his father D.Ramaiah Setty was only taking care of the plaintiffs herein, i.e., daughters and he himself taking care of his wife and children. So in view of his above arguments he urged to answer issue No.3 and 4 in the Affirmative and issue No.15 in the Negative.
133. On the contrary, the learned counsel represented defendant No.1, during the course of his arguments contended that though the plaintiffs contended that D.Ramaiah Setty out of his own earnings established his own shop and started the firm under the name and style M/s.Hanumantharaju and Company and contended that defendant No.1 was nominally offered equal share of 50% of the profits and loss though the entire amount was made by D.Ramaiah Setty, but the oral and documentary evidence placed before the court shows that the plaintiffs have failed to prove the said aspect. He further contended that on the contrary the plaintiffs in their evidence admitted that the 141 O.S.No.4165/1998 c/w O.S.No.7731/2009 partnership business was started on 2/9/1966, which was also registered and they have original partnership deed with them only. He further contended that the very document produced by the defendant No.1 who has been examined as PW1 in O.S.No.4165/1998 at Ex.P31, i.e., partnership deed and the registration certificate at Ex.P25 clearly goes to falsify the contention of the plaintiffs. He further contended that the very document produced by defendant No.1 at Ex.P31, i.e., the partnership deed it shows that it bears the signature of both D.Ramaiah Setty and D.R.Hanumantharaju and even the said fact has been admitted by plaintiff No.1 who has been examined as DW2 in the cross-examination. He further contended that though DW2, i.e., plaintiff No.1 in this case admitted that original partition deed is with them, inspite of that they have not produced before court for the best reasons known to them. So what he contended that from the very conduct of the plaintiffs an adverse inference can be drawn that the firm M/s.Hanumantharaju and Company exclusively belongs to defendant No.1 alone. So in view of his above 142 O.S.No.4165/1998 c/w O.S.No.7731/2009 arguments he urged to answer issue No.3 and 4 in the Negative and issue No.15 in the Affirmative.
134. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records and also the evidence adduced and produced by the respective parties. It is the specific contention of the plaintiff that D.Ramaiah Setty out of his own earnings established his own ship in the name and style of M/s.Hanumantharaju and Company on 2/9/1966 and defendant No.1 D.R.Hanumantharaju was nominally offered equal share of 50% of loss and profits. Though the plaintiffs have contended like so, but in order to prove the factum of D.R.Hanumantharaju was nominally offered equal share of 50% of profits and loss, no acceptable material has been placed before the court. The very documents produced by defendant No.1 at Ex.P31, i.e., copy of the partnership deed and Ex.P25 true extract of registrar of firms clearly goes to falsify the stand taken by the plaintiffs. The contentions placed before the court shows that on the date of registered 143 O.S.No.4165/1998 c/w O.S.No.7731/2009 partnership deed both father and son started themselves in all respects and there afterwards they intended to start business under partnership. The very evidence on records shows that both father and son started new business under the name and style of M/s.Hanumantharaju and Company, wherein both had 50% share each and both had contributed Rs.5,000/- each as capital for the partnership business and admittedly the records shows that the said partnership was at 'Will', as it is already stated above the defendant No.1 in order to substantiate his case placed before the court Ex.P31 and P25 which clearly corroborates the case of defendant No.1 and Ex.P31 as it is already stated above signed by both father and son, even the said documents has been admitted by DW2 who is the plaintiff No.1 in this case. When that would be the case, it is needless to say that the defendant No.1 has proved his contention by placing acceptable oral and documentary evidence before the court. So also the defendant No.1 in support of his contention produced ledger books at Ex.P16 and P17. Even the said documents have been accepted by DW2, i.e., plaintiff No.1 herein in cross-examination. So also 144 O.S.No.4165/1998 c/w O.S.No.7731/2009 in the said documents it was shown capital investment made by both D.Ramaiah Setty and D.R.Hanumantharaju separately. At this juncture it would be relevant to quote the admission given by DW2 who is plaintiff No.1 in this case during the course of his cross examination at page No.98 which reads as under:
"It is true to suggest that Ex.P16 is the ledger for the year 1983-84 of M/s.Hanumantharaju and Company and the entries at Ex.P16(a) and Ex.P16(e) are all capital investment of father and plaintiff. The signature in Ex.P16 at page 3 shown to me cannot be identified by me as the signature of Sundara Lakshmi defendant No.2. I do not know any financial transactions of defendant No.2 and 3".
135. The above admission given by DW2 who is the plaintiff No.1 in this case, during the course of his cross examination clearly goes to falsify the stand taken by them in this case. Another important aspect to be taken note of here is that it is the specific stand of the plaintiffs that D.Ramaiah Setty established M/s.Hanumantharaju and Company on 2/9/1966. If according to them, the defendant No.1 nominally 145 O.S.No.4165/1998 c/w O.S.No.7731/2009 offered equal share of 50% of profits and loss, the records shows that till the death of D.Ramaiah Setty in the year 1986 and till filing the present suit by them, they have not at all questioned about all these aspects. So from this conduct of the plaintiff's adverse inference can be drawn that though everything is well within their knowledge, inspite of that for the best reasons known to them, decades after death of their father D.Ramaiah Setty they have taken such bald and baseless contentions. So by analyzing the over all oral and documentary evidence placed before the court, it can be said that the plaintiffs have failed to prove issue No.3 and 4 and defendant No.1 has succeeded to prove issue No.15. Accordingly issue No.3 and 4 are answered in the Negative and issue No.15 is answered in the Affirmative.
136. Issue No.5, 6 and 9 in O.S.No.7731/2009: The learned counsel for the plaintiffs in order to prove these issues during the course of his arguments contended that though there was partition in the year 1965, but the said partition was a nominal partition deed and at any point of time the 146 O.S.No.4165/1998 c/w O.S.No.7731/2009 parties to the partition deed have not acted upon. He further contended that the shares of the plaintiffs have not been allotted and they are intact, as such the joint family continued to be joint even after the partition deed and even to this day. He further contended that the plaintiffs are residing in the house including the 'B' schedule property along with defendant No.1 as a member of the joint family. He further contended that the very documents produced by the plaintiffs at Ex.D2, 3, 6 and D10 to 25 clearly goes to establish that the plaintiffs are residing in the first floor house along with the parents, i.e., to say, since its construction by D.Ramaiah Setty in the year 1963-64. He further contended that M/s.Traders of India who is a tenant in front old house vacated the same on 23/12/1981 as per Ex.D15 and thereafter Sarojamma who is another daughter of D.Ramaiah Setty started to reside in the said house along with her husband and children and even the said fact has been admitted by defendant No.1. He further contended that defendant No.1 the brother of the plaintiffs D.R.Hanumantharaju has admitted in the cross-examination that his sisters enjoying all the amenities in the first floor as 147 O.S.No.4165/1998 c/w O.S.No.7731/2009 family members. So he contended that when there is clinching evidence to show that the suit schedule properties are the joint family properties of both the plaintiffs and defendants and they are in joint possession and enjoyment of the same the defendant No.1 in order to deprive the legitimate share of the sisters has taken a false contention in order to knock off the entire property. So what he contended that till this date there is no severance of joint status and both plaintiffs and defendants are in joint possession of the suit schedule properties. He further contended that when the partition deed of 1965 is only a nominal sake partition deed and not at all acted upon by the father and son, the question of severance of joint status does not arise. In support of his contention he has relied upon the decision reported in ILR 1988 Kar page 786 between Subbanna and Kannaiah, 1993(3)KLJ (SUP 264)(HC)(DB).
137. So in view of his above arguments and decision he urged to answer issue No.5 and 6 in the Affirmative and issue No.9 in the Negative.
148 O.S.No.4165/1998 c/w O.S.No.7731/2009
138. The learned counsel for defendant No.1 during the course of his arguments contended that there is a registered partition deed between D.Ramaiah Setty and defendant No.1 in the year 1965 itself, as such there is no communion of interest of any kind between the parties and they are divided in all respects. He further contended that the very recitals in Ex.P1 partition deed shows that during 1964 itself all the movables had been divided and there is no movable properties or immovable properties of the family. So he contended that as per Ex.P1 registered partition deed. Parties to the said document have been acted upon. When such would be the case, the question of joint family and joint family business does not arise at all. He further contended that D.Ramaiah Setty after obtaining his share as per Ex.P1 partition deed has executed settlement deed in favour of his daughters, i.e., plaintiffs herein and also executed the 'Will' in favour of elder daughter Sarojamma. So he contended that all these aspects clearly shows that the suit schedule properties are not joint family properties and the plaintiffs are not in possession of the 149 O.S.No.4165/1998 c/w O.S.No.7731/2009 suit schedule properties. He further contended that by virtue of Ex.P1 partition deed and in pursuance of the parties to the said deed acted upon, as such the plaintiffs have been ousted from the joint family and question of joint status and joint possession does not arise at all.
139. He further contended that so far as 'B' and 'C' schedule properties are concerned they are movables and business concern. He further contended that it is not the case of the plaintiffs that the 'B' and 'C' schedule properties is joint family business, when that would be the case joint possession of the said properties does not arise. He further contended that the very evidence on record shows that 'C' schedule property, i.e., shop was purchased by defendant No.1 after both of his father D.Ramaiah Setty and the possession of the same was given to defendant No.1 after the death of his father by APMC. So also the very sale deed placed before the court shows that the same is standing in the name of defendant No.1 and subsequently he has gifted portions to his sons and also raised loan on the said property and put up building 150 O.S.No.4165/1998 c/w O.S.No.7731/2009 thereon and even cleared the loan which was raised by him by mortgaging the said 'C' schedule property to Grain Merchants Bank. He further contended that the very evidence placed before the court shows that defendant No.1 himself has put up construction and enjoying the same exclusively. When that would be the case the question of joint status and joint possession as claimed by the plaintiffs does not arise at all. So in view of his above arguments he urged to answer issue No.5 and 6 in the Negative and issue No.9 in the Affirmative.
140. In the light of the arguments canvassed on behalf of the respective counsels for the parties, I have gone through the records. The plaintiffs claims that the suit schedule properties are the joint family properties of himself and defendant No.1 and they are in joint possession of the same. Per contra, it is the contention of the defendant No.1 that the suit schedule properties are not joint family properties and the plaintiffs are not in joint possession of the same as because they are ousted from the joint family by virtue of Ex.P1 partition deed. 151 O.S.No.4165/1998 c/w O.S.No.7731/2009
141. In the light of the above rival contentions, on going through the records, it shows that and also it is an undisputed fact that there was registered partition deed in the year 1965 between father and son, i.e., D.Ramaiah Setty and D.R.Hanumantharaju. so also it is an undisputed fact that the plaintiffs herein executed registered release deed in favour of their father D.Ramaiah Setty which is very evident from Ex.P11 to 13. So also it is an undisputed fact that subsequently the father of the plaintiffs executed settlement deed in favour of his daughter, i.e., the plaintiff herein which is also very evident from Ex.P14 and 15. Ex.P15 is the 'Will' executed by D.Ramaiah Setty in favour of his elder daughter Sarojamma. So by analyzing the above said documents and also upon perusal of the cross-examination of DW2 it clearly shows that she has admitted various aspects and those aspects clearly goes to establish before the court that though she is very well aware of the factum that the father and son have acted upon on the basis of Ex.P1 partition deed inspite of that some what she is trying to suppress the truth of the matter. At this juncture, it would be relevant to quote the 152 O.S.No.4165/1998 c/w O.S.No.7731/2009 evidence given by DW2 during the course of her cross examination at page No.69 which reads as under:
"As per partition deed my father has taken all his share property measuring 60 x 70 ½ feet and defendant No.1 given towards his property measuring 30 x 60 feet total extent is 60 x 108."
142. She further admits that "Father has executed settlement deed for the remaining portion giving one portion each to three daughters and retaining himself one portion."
143. DW2 again in her cross-examination at page No.91, she admits as under:
"It is true to suggest that the share of all the four sisters together will be more than the share of plaintiff (i.e., defendant No.1 herein). I do not know what is the value of share of each of the property of each of the sisters as on filing of our partition suit."
144. So also DW2 in her cross-examination at page No.34 she admits as under:
153 O.S.No.4165/1998 c/w O.S.No.7731/2009
"It is true to suggest that we three defendants (plaintiffs in O.S.No.7731/2009) are the owners of the respective portions of the property given to us by my father under the settlement deed and Sarojamma and her children are the owners of the portion given to Sarojamma."
145. Again in the same page in the last portion she has admitted as under:
"After the death of my father in the year 1986 we defendants (plaintiffs in O.S.No.7731/2009) have not given notice to the plaintiff (defendant No.1 in O.S.No.7731/2009) demanding our share or any amount of business."
146. Again DW2 at page No.35 in her cross-examination admitted as under:
"It is true to suggest that from 1986 till we filed suit in the year 2009, we have not issued notice to the plaintiff (defendant No.1 in O.S.No.7731/2009) either demanding partition or amount or in respect of the firm and that for the first time we have made such claims in the year 2009."154 O.S.No.4165/1998 c/w O.S.No.7731/2009
147. Again DW2 in the same page admitted that:
"I have given addresses of property No.254, certified copy of affidavit evidence P.30 and P.30-A."
148. So also DW2 in page No.36 admits as under:
"It is true to suggest that my evidence affidavit P.30 in para 5 I have stated that there was partition between my father and my brother and registered partition deed dated 29/3/1965 was executed between them and that 'A' schedule property was allotted to my father and 'B' schedule of the deed was allotted to my brother."
149. So looking into the above evidence given by DW2, it can be said that there was already division in respect of the suit schedule properties among the family members. When that would be the case, the say of the plaintiffs that the suit schedule properties are the joint family properties of themselves and defendants and question of they are in joint possession does not arise at all. The very evidence given by DW2 as stated above shows that as per Ex.P30 and P30-A wherein her address shown as No.254 that means to say she 155 O.S.No.4165/1998 c/w O.S.No.7731/2009 is in possession of the property fallen to the share of his father D.Ramaiah Setty in pursuance of settlement deed executed by him as per Ex.P14. The learned counsel for the plaintiffs much contended by placing his reliance upon Ex.D2, D3, D6 and D10 to D25, what he contended that the said document clearly shows that plaintiffs are residing in the suit schedule properties. I have gone through the said documents. They are only the letter correspondence. On the basis of the said document one cannot say that they are in possession of the entire suit schedule properties. That means to say, they are in joint possession of the suit schedule properties along with defendant No.1. If according to the plaintiffs they are in joint possession of the entire suit schedule properties they could have established the said factum either by producing the Election ID card, Voters list and Ration card, but the same has not been done by the plaintiffs. Apart from that as it is already discussed above, when the registered Ex.P1 partition deed, registered release deed at Ex.P11 to P13 and registered settlement deed at Ex.P14 which are came into existence at undisputed point of time, whatever the stand taken by the 156 O.S.No.4165/1998 c/w O.S.No.7731/2009 plaintiffs cannot be accepted. Apart from that if really there would be no partition and the parties to Ex.P1 partition deed have not acted upon the said document, certainly they would have questioned their father, but the evidence on record shows that father was died in the year 1986, but they kept mum nearly for 21 years after the execution of Ex.P1 registered partition deed and even there afterwards till filing of this case in the year 2009 they have not raised their little finger against all the above said registered documents which came into existence at an undisputed point of time. So by taking into consideration all these over all oral and documentary evidence it can be said that the plaintiffs have failed to prove the suit schedule properties are the joint family properties of themselves and the defendant No.1 and they are in joint possession of the same. I have gone through the decision relied upon by the learned counsel for the plaintiffs reported in:
(1) ILR 1998 Kar page 786 between Subbanna Vs. Kammaiah 157 O.S.No.4165/1998 c/w O.S.No.7731/2009 (2) 1993(3) KLJ (SUP)(264)(HC)(DB), between Patel Chandrappa and Hanumanthappa and others.
150. Looking into the facts and circumstances of the present case it can be said that those decisions would not come to the aid of plaintiffs. So by considering the over all facts and circumstances of the case and also by analyzing the over all oral and documentary evidence on record it can be said that the plaintiffs have failed to prove issue No.5 and 6 and defendant No.1 has succeeded to prove issue No.9. Accordingly issue No.5 and 6 are answered in the Negative and issue No.9 is answered in the Affirmative.
151. Issue No.14 in O.S.No.7731/2009: The learned counsel for the defendant No.1 during the course of his arguments contended that the plaintiffs have absolutely no right to claim any share in the suit schedule properties. He further contended that the very Ex.P1 partition deed shows that there was division of properties in between D.Ramaiah Setty and D.R.Hanumantharaju and subsequently in 158 O.S.No.4165/1998 c/w O.S.No.7731/2009 pursuance of the same the respective revenue records entered in respect of respective shares. He further contended that subsequently D.Ramaiah Setty has given properties to his daughters, i.e., the plaintiffs herein which has fallen to his share under Ex.P1 partition deed. He further contended that the plaintiffs herein also executed three registered release deeds relinquishing their right, title and interest in respect of the immovable properties allotted to the share of D.Ramaiah Setty. So he contended that the very oral and documentary evidence placed before the court clearly shows that the plaintiffs herein by accepting Rs.40,000/- each under Ex.P11 to 13 registered release deeds they have relinquished their rights in respect of immovable properties allotted to the share of D.Ramaiah Setty under Ex.P1 partition deed. When that would be the case the plaintiffs have absolutely no right to claim any share in the suit schedule properties, as because they have no interest or having any right in respect of the suit schedule properties. So in view of his above arguments he urged to answer issue No.14 in the Affirmative. 159 O.S.No.4165/1998 c/w O.S.No.7731/2009
152. The learned counsel for the plaintiffs during the course of his arguments contended that though in the year 1975 the plaintiffs executed three release deeds in favour of their parents by showing on record that they have received Rs.40,000/- each, but the same was also not at all acted upon, as they continued to live along with the parents and the defendant No.1. He further contended that they were not given Rs.40,000/- on that day or they did not severe the relationship with the joint family. He further contended that absolutely there was no necessity for the plaintiffs to execute such release deeds, as the plaintiffs were taken care of by the father before and after the said release deeds. He further contended that the very evidence given by DW2 shows that though she has admitted with regard to the execution of three release deeds, but she has stated that they have not received Rs.40,000/- each. When that would be the case the say of defendant No.1 that the plaintiffs and another sister Sarojamma had relinquished and they are released, their right, title and interest in respect of the immovable properties as contended by him cannot be accepted. So in view of his 160 O.S.No.4165/1998 c/w O.S.No.7731/2009 above arguments he urged to answer issue No.14 in the Negative.
153. In the light of the above rival submissions made by the respective counsels for the parties I have gone through the records. Upon perusal of the records it shows that the plaintiffs have not at all disputed the factum of execution of Ex.P11 to 13 registered release deeds in favour of their parents and also they have not disputed the execution of 'Will' in favour of elder sister Sarojamma as per Ex.P15. Their only contention is that they have not at all relinquished or released their right, title and interest in respect of the immovable properties allotted to the share of their father by taking consideration amount of Rs.40,000/- each. So far as the said contention of the plaintiffs is concerned, it can be said that though they contended like so, but in proof of their contention no acceptable materials has been placed before the court. Upon perusal of the Ex.P11 to 13 registered release deeds, it clearly depicts with regard to the factum of receiving of Rs.40,000/- each by the plaintiffs and also the property given 161 O.S.No.4165/1998 c/w O.S.No.7731/2009 to their elder sister Sarojamma by their father D.Ramaiah Setty under Ex.P15, i.e., a portion retained by him. At this juncture, it would be just and appropriate to quote the evidence given by DW2 during the course of her cross examination at page No.55 which reads as under:
"It is true to suggest that on 6/10/1975 we three sisters have executed release deeds in favour of our father and mother."
154. So also DW2 in her cross-examination at page No.56 she admits as under:
"During the life time of our father we have not issued notice to him stating that Rs.40,000/- was not received by each of us".
155. Again DW2 in her cross-examination at page No.57 admits as under:
"It is true to suggest that in the release deeds it has been mentioned as to how each of the sisters have been paid Rs.40,000/- each."162 O.S.No.4165/1998 c/w O.S.No.7731/2009
156. Looking into the above evidence given by DW2 one can say that the plaintiffs herein and their elder sister Sarojamma relinquished their right, title and interest in respect of immovable property allotted to the share of their father D.Ramaiah Setty. If according to the plaintiffs if they have not at all received Rs.40,000/- as mentioned in Ex.P11 to 13 registered release deed document certainly they would have caused notice to their father with regard to the said aspect, admittedly after the execution of Ex.P11 to 13 in the year 1975 their father was alive for nearly 11 years. Inspite of that they have not chosen to cause notice to their father about the factum of non-receipt of Rs.40,000/- each by them. The evidence on records also shows that even they have not caused notice to defendant No.1 herein. When things stood like so the bald say of the plaintiffs that they have not received Rs.40,000/- each under the said above referred registered document cannot be accepted. When things stood like so, it is needless to say that the plaintiffs somewhat trying to suppress the truth of the matter for the best reasons known to them. So by considering the available oral and documentary evidence 163 O.S.No.4165/1998 c/w O.S.No.7731/2009 on record, it can be said that the defendant No.1 has succeeded to prove issue No.14. Accordingly issue No.14 is answered in the Affirmative.
157. Issue No.13 in O.S.No.7731/2009: The defendant No.1 in his written statement contended that the suit is not properly valued and the court fee paid by the plaintiff is insufficient. In view of the contention taken by the defendant No.1, the issue in question came to be framed. I have gone through the records and also the reliefs sought by the plaintiffs in the present suit. Looking into the relief sought by the plaintiff it shows that he has paid the requisite court fee on the same, as such the contention of the defendant No.1 that the plaintiffs have not properly valued the suit and paid insufficient court fee cannot be accepted. I have gone through the decisions relied upon by the learned counsel for the defendant No.1. Looking into the facts and circumstances of the present case, it can be said that those decisions are not helpful to the case of defendant No.1. For the foregoing reasons, the issue in question is answered in the Negative. 164 O.S.No.4165/1998 c/w O.S.No.7731/2009
158. Issue No.16 in O.S.No.7731/2009: This issue also does not survive for consideration in view of the orders passed by the Hon'ble High Court of Karnataka in RFA No.1448/2013 and 1038/2013. Accordingly issue in question is answered.
159. Issue No.8 in O.S.No.7731/2009: The learned counsel for the defendant No.1 during the course of his arguments contended that the plaintiffs have not sought for reopening of the partition or seeking declaration about the registered partition deed and they have stated that it was not acted upon. So he contended that if that would be the contention of the plaintiffs and if the entire property belongs to D.Ramaiah Setty alone, they should have sought for declaration in respect of the registered partition deed and also sought for reopening of the partition, but the same has not been sought by the plaintiffs. So he contended that in view of the proper reliefs not sought by the plaintiffs, the suit of the plaintiff is not maintainable. As such the same is liable to be dismissed.
165 O.S.No.4165/1998 c/w O.S.No.7731/2009
160. In support of his arguments he has relied upon the decision reported in AIR 1972 SC page 2685. So in view of his above arguments he urged to answer the issue in question in the Affirmative.
161. The learned counsel for the plaintiffs during the course of his arguments contended that the plaintiffs have sought for the appropriate reliefs, as such the suit of the plaintiff is maintainable. So in view of his above submission he urged to answer issue in question in the Negative.
162. In the light of the above rival contention on going through the records, it shows that the plaintiffs herein have sought for share in the suit schedule properties, i.e. to say in respect of the share fallen to their brother defendant No.1 D.R.Hanumantharaju and also they have sought for declaration of gift deeds executed by D.R.Hanumantharaju in favour of his sons, i.e., defendant No.9 and 10 is not binding as null and void and not binding upon them. No doubt the 166 O.S.No.4165/1998 c/w O.S.No.7731/2009 plaintiffs have not sought for reopening of the partition that had taken place in the year 1965, but on the sole ground the suit of the plaintiffs cannot be rejected, in view of the reliefs sought by them in the present suit. I have gone through the decisions relied upon by the learned counsel for the defendant No.1. Looking into the facts and circumstances of the present case, it can be said that the said decisions are not helpful to the case of defendant No.1. Accordingly issue No.8 in question is answered in the Negative.
163. Issue No.17 in O.S.No.7731/2009: The learned counsel for the defendant No.1 during the course of his arguments contended that the suit of the plaintiffs is bad for non-joinder of necessary parties and properties. What he contended that the plaintiffs have filed the present suit only in respect of the properties allotted to the share of the defendant No.1 D.R.Hanumantharaju, but they have not sought for the partition in respect of the properties allotted to the share of their father D.Ramaiah Setty. So on this ground he urged to 167 O.S.No.4165/1998 c/w O.S.No.7731/2009 dismiss the suit of the plaintiff as bad for non-joinder of necessary parties and properties.
164. The learned counsel for the plaintiffs contended that the plaintiffs have included the necessary parties to the suit and also they sought for division of properties in respect of the joint family properties as shown in the suit schedule. So he urged to reject the stand taken by the defendant No.1.
165. In the light of the above rival stand on going through the records it shows that though the learned counsel for the defendant No.1 contended that the suit of the plaintiffs is bad for non-joinder of necessary parties, but upon perusal of the written statement of defendant No.1, no where they have specifically mentioned who are the other persons to be added as parties to the proceedings. When such would be the case, on the basis of the bald contention the said aspect, i.e., to say that the suit of the plaintiffs is bad for non-joinder of necessary parties cannot be accepted. So far as the contention of the defendant No.1 that the suit of the plaintiff is 168 O.S.No.4165/1998 c/w O.S.No.7731/2009 bad for non-inclusion of necessary properties is concerned it can be said that it is the case of the plaintiffs that though there was registered partition deed in the year 1965 but the same was not acted upon by the parties to the said document and also it is their specific contention that the said Ex.P1 partition deed is a nominal partition deed. When that would be the case and when they contended like so, it is for them to include the entire joint family properties, but admittedly they have sought for partition only in respect of the properties fallen to the share of defendant No.1 D.R.Hanumantharaju as per Ex.P1 partition deed, but not in respect of properties fallen to the share of their father D.Ramaiah Setty. When such would be the case, it can be said that the suit of the plaintiffs is bad for non-inclusion of all the properties. Accordingly issue No.17 for consideration is answered partly in the Affirmative.
166. Issue No.10 in O.S.No.7731/2009: The learned counsel for the defendant during the course of his arguments contended that the suit of the plaintiff is barred by limitation. 169 O.S.No.4165/1998 c/w O.S.No.7731/2009 What he contended that the plaintiffs have not sought for accounts in respect of dissolved partnership firm well within the prescribed time. He further contended that admittedly the oral and documentary placed before the court shows that partnership firm consists of two persons, i.e., father and son and the said partnership firm was a partnership at 'Will'. He further contended that D.Ramaiah Setty expired in the year 1986. So immediately after his demise the partnership firm stands dissolved and even defendant No.1 has intimated the said factum to all the concerned authorities. So he contended that as per article 58 of the Limitation Act, if at all the plaintiffs claims any right in partnership business firm they have to claim within three years, but the records shows that they have not at all sought for any such kind of relief and that too within the limitation period. He further contended that partition between the father and son had taken place in the year 1965 and the said fact is well within the knowledge of the plaintiffs. Inspite of that they have not filed suit for reopening the partition well within the prescribed time. So he contended that the suit of the plaintiff is barred by limitation. 170 O.S.No.4165/1998 c/w O.S.No.7731/2009
167. The learned counsel for the plaintiffs during the course of his arguments mainly contended that the claims made by the plaintiff is well within the limitation period. He further contended that after the demise of D.Ramaiah Setty the father of the plaintiffs automatically the plaintiffs being the legal representatives of deceased D.Ramaiah Setty becomes the partners of the partnership firm. When that would be the case the question of limitation does not arise at all. He further contended that so far as seeking for partition is concerned, limitation cannot be made applicable and apart from that the overall facts and circumstances of the case shows that claims made by the plaintiffs is not at all barred by limitation. So in view of his above arguments he urged to answer the issue in question in the Negative.
168. In the light of the rival contentions I have gone through the records. The main contention of the learned counsel for defendant No.1 is that the claim of the plaintiff is barred by limitation, as because the plaintiffs have not sought 171 O.S.No.4165/1998 c/w O.S.No.7731/2009 for accounts of partnership firm well within the prescribed period of limitation, as such the suit of the plaintiff is hit by article 58 of the Limitation Act. So far as the said contention of the learned counsel for the defendant No.1 is concerned, it can be said that no doubt if any person claims for settlement of accounts in respect of partnership firm, he has to file the suit within three years from the date of knowledge as per article 58 of Limitation Act. In the present case admittedly the plaintiffs have not at all sought for settlement of accounts of partnership firm. When that would be the case it is needless to say that there is no much weight or force in the arguments canvassed by the learned counsel for the defendant No.1, so far as seeking for accounts in respect of the partnership firm within the prescribed period of limitation.
169. Now coming to the other aspect contended by the counsel for the defendant No.1, i.e., to say the registered partnership deed was come into existence in the year 1965 whereas the present suit is filed in the year 2009 though Ex.P1 partition deed was well within the knowledge of plaintiff. 172 O.S.No.4165/1998 c/w O.S.No.7731/2009 As rightly pointed out by the learned counsel for the defendant No.1, upon perusal of the pleadings of the respective parties and the oral and documentary evidence adduced and produced by the parties, it clearly shows that absolutely there is no dispute between the parties with regard to the partition deed, that was come into existence in the year 1965. So it can be said that Ex.P1 partition deed is well within the knowledge of the plaintiff at an undisputed point of time itself. When that would be the case, the plaintiffs are required to file the suit within a period of 12 years, as per section 110 of the Limitation Act. Upon perusal of section 110 of the Limitation Act, 1963, it shows that "by the person excluded from the joint family property to enforce the right to share therein, the prescribed limitation is for 12 years and it starts to commence when the exclusion becomes known to the affected party, i.e., plaintiff." As it is already stated above, the evidence on record clearly shows that since more than 12 years it is well within the knowledge of plaintiffs that the partition had taken place in between father and brother in the year 1965 itself. But inspite of that they have failed to file the suit well within the 173 O.S.No.4165/1998 c/w O.S.No.7731/2009 prescribed period of limitation, i.e., within 12 years, whereas the present suit is filed in the year 2009. under such circumstances it can be said that the suit of the plaintiff is barred by limitation. Accordingly issue No.10 in question is answered in the Affirmative.
170. Issue No.7 in O.S.No.7731/2009: In view of detailed discussions made in the above issues the plaintiffs are not entitled for 1/5th share in the suit schedule properties. Accordingly issue No.7 in question is answered in the Negative.
171. Issue No.18: In view of my findings to the above issues, the plaintiffs are not entitled for any reliefs. Accordingly issue No.18 in question is answered in the Negative.
172. Issue No.1 & 2 and additional issue No.1 in O.S.No.4165/1998: All these three issues are interconnected. Therefore they have been taken together for 174 O.S.No.4165/1998 c/w O.S.No.7731/2009 common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience. So far as these issues are concerned, the evidence adduced by the respective parties has been discussed in detail in issue No.1, 2, 11 and 12 in O.S.No.7731/2009. So also the arguments canvassed by the respective counsels for the parties with regard to their respective contentions has been referred in the said issues.
173. Upon perusal of the oral and documentary evidence adduced and produced by the parties, absolutely there is no much dispute with regard to the relationship between the parties is concerned. So also there is no much dispute with regard to the death of D.Ramaiah Setty in the year 1986 and his wife in the year 1976. it is the contention of the plaintiff herein that he has purchased the old property bearing No.235 and 236 then numbered 254 and 255 under the registered sale deed dated 12/5/1956 and they got divided the properties under a partition deed dated 29/3/1965. the plaintiff herein has spoken with regard to the said aspect in his evidence as 175 O.S.No.4165/1998 c/w O.S.No.7731/2009 well as also specifically pleaded in para 2 of his plaint. The plaintiff further contended that schedule 'A' partition deed was allotted to his father and schedule 'B' was allotted to him. The evidence on record shows that according to this plaintiff the schedule 'B' of the Ex.P1 partition deed, present 'A' schedule property in this suit. The evidence on record shows that the defendants herein have not at all disputed the registered sale deed and partition deed and even they have admitted the said fact in their written statement at para 3. So also the evidence on record shows that and also the defendants admits that the suit schedule 'A' property has fallen to the share of the plaintiffs herein under Ex.P1 partition. Upon perusal of the amended written statement filed by the defendants wherein they claims that the entire property including plaint 'A' schedule property was the self acquired property of their father and they have perfected their title and right over the schedule properties by adverse possession.
174. So far as the said contention taken by the defendants, i.e., to say with regard to the adverse possession it 176 O.S.No.4165/1998 c/w O.S.No.7731/2009 can be said that when they set up the plea of adverse possession it indirectly shows that they admit the ownership of the plaintiff over the plaint 'A' schedule property. It is an well established principles of law that a person cannot set up the plea of adverse possession against another person without admitting the ownership of such person. As it is already stated above the defendants herein have not only admitted the sale deed executed in the year 1956 in favour of the plaintiff herein and their father D.Ramaiah Setty and they also admit the partition that had taken place in between the father and son, i.e., the plaintiff herein and D.Ramaiah Setty in the year 1965.
175. As it is already discussed in detail in issue No.1, 2, 11 and 12 in O.S.No.7731/2009 that in the earlier proceedings in between the parties wherein they have admitted with regard to partition deed and sale deeds, Ex.P1 is the partition deed dated 29/3/1965, upon perusal of the same it shows that the suit schedule premises bearing No.254 was fallen to the share of D.Ramaiah Setty, who is the father of the 177 O.S.No.4165/1998 c/w O.S.No.7731/2009 plaintiff and defendants herein and schedule 'B' property, which is present 'A' schedule property bearing premises No.236, new No.255 was fallen to the share of the plaintiff herein. The document produced by the plaintiff at Ex.P2 shows that the corporation has issued certificate in respect of the plaintiff herein in respect of the said property, i.e., plaint 'A' schedule property bearing No.255. The document produced by the plaintiff at Ex.P3 shows that he himself has paid house tax for the said property in the year 1996-97 and 1997-98. Ex.P4 is the document relating to the sketch of the property. Ex.P6 is the summons issued to the defendant in O.S.No.3052/1993 filed by the plaintiff and the said matter was ended in compromise and Ex.P7 is the decree passed in said suit. So also upon perusal of Ex.P8 it shows that it is a compromise petition filed by the plaintiff and defendants including their mother and upon perusal of the same, it clearly shows that there was a partition between the plaintiff and his father late D.Ramaiah Setty and common passage is the subject matter of the said partition deed. So also Ex.P1 partition deed shows that they acquired right of common 178 O.S.No.4165/1998 c/w O.S.No.7731/2009 passage as per the partition deed. The document produced by the plaintiff at Ex.P11 to 13, they are none other than the release deeds of the year 1975. The evidence given by DW2 who is the defendant No.1 herein clearly shows that their father D.Ramaiah Setty partitioned his property between his three daughters, i.e., the defendants herein and himself. The very said document, i.e, Ex.P11 to 13 shows that each of the defendants have got one portion under release deeds. Admittedly the evidence on records shows that till this date the said release deeds have not been challenged by the defendants. When that would be the case, they cannot contend that there was no partition between the father and the plaintiff herein in the year 1965. So also the records shows that till this date even the defendants have not challenged the partition deed of the year 1965.
176. The documentary evidence placed before the court, i.e., Ex.P14 settlement deed dated 29/7/1976 shows that there was a partition between the plaintiff and his father in the year 1965 and he gave one portion each to his daughters, i.e., 179 O.S.No.4165/1998 c/w O.S.No.7731/2009 defendants herein and also it shows that he gave some amount to each of his daughters. So also the said document shows that wherein reference has been made with regard to the house property No.254. Even the said aspect has been admitted by DW2 in the evidence. So also upon perusal of Ex.P15, it is the 'Will' executed by D.Ramaiah Setty in favour of his elder daughter Sarojamma, wherein also there is reference about the registered partition deed Ex.P1 between the plaintiff and D.Ramaiah Setty. The evidence on records shows that the plaintiff herein had filed O.S.No.3052/1998 against P.R.Sarojamma and the present defendants and the document relating to the said case placed before the court shows that the defendants herein admitted that the present plaintiff is allotted the property bearing old No.236, new No.255, III Main road, Chamarajpet, Bangalore, under a registered partition deed that had taken place in the year 1965 between the plaintiff herein and there father D.Ramaiah Setty. So also the said document shows that in the said partition 'A' schedule property of the partition deed was fallen to the share of D.Ramaiah Setty and 'B' schedule property had fallen to the 180 O.S.No.4165/1998 c/w O.S.No.7731/2009 share of D.R.Hanumantharaju who is none other than the plaintiff herein. So also it shows that 'L' shaped passage was left to the entire property for common use of all purpose.
177. As it is already discussed in detail in issue No.1, 2, 11 and 12 in O.S.No.7731/2009 the defendants herein admitted in their evidence that as per the settlement deed dated 29/7/1976 they became the absolute owner of the entire 'A' schedule property fallen to the share of their father D.Ramaiah Setty. So it can be said that the very said evidence given by defendants clearly supports the case of plaintiff herein that he is the owner of 'A' schedule property including the 'B' schedule property. Ex.P22 is the certified copy of the plaint in O.S.No.8209/1997. Upon perusal of the said document, it shows that wherein at para 4 the defendants herein and their sisters admitted that their father and their brother, i.e., the plaintiff herein have purchased the property No.254 and 255 under registered sale deed dated 12/5/1956 and they got partitioned the same under the partition deed dated 29/3/1965. so also upon perusal of Ex.P23 Ex.P24 181 O.S.No.4165/1998 c/w O.S.No.7731/2009 shows that wherein also there is admission of defendants with regard to the purchase of property No.254 and 255 jointly under registered sale deed dated 12/5/1956 and got partitioned the same under registered partition deed dated 29/3/1965. So from the above documents and evidence it can be said that admissions in pleadings or judicial admissions, admissible under section 58 of the evidence act.
178. At this juncture it would be useful to refer the decision rendered in AIR 1974 SC page 471 between Nagindas Ramdas, appellant Vs. Dalpatra Icchram @ Brijram and others, wherein it was held by their lordship as under:
"Admissions in pleadings or judicial admissions, admissibility under section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, 182 O.S.No.4165/1998 c/w O.S.No.7731/2009 evidentiary admissions which are receivable at the trial as evidence, are by themselves not conclusive. They can be shown to be wrong."
179. Looking into the dictum laid down by their lordship and also looking into the admissions of defendants herein with regard to the earlier litigations between themselves and the plaintiffs herein it can be said that the said decision is directly applicable to the present case in hand. The evidence on record, shows that the defendants herein in order to substantiate their contentions have not placed acceptable neither oral or documentary evidence before the court. When the plaintiff has placed sufficient documentary evidence, partition deed, registered release deed and registered settlement deeds, whatever the oral evidence placed by the defendants before the court cannot be accepted, as because as per section 91 and 92 of the Indian Evidence Act, documentary evidence would prevail over the oral evidence. 183 O.S.No.4165/1998 c/w O.S.No.7731/2009
180. Upon perusal of Ex.P29, i.e., copy of the petition in Misc.156/2008 filed by the defendants herein and their sisters shows that they were residing in house No.254 in the year 2008, but not in the plaint 'B' schedule property as claimed by them. So also upon perusal of Ex.P30, it shows that in the year 2006 the defendant No.1 herein was residing in property No.254, III main road, Bangalore. So looking into these documents it clearly goes to nullify the contentions taken by the defendants that they were residing in the plaint 'B' schedule property even prior to the year 1990. So also upon perusal of Ex.P32(a) it shows that the registered partition deed, i.e., Ex.P1 was acted upon by their father and he was in separate possession of the property fallen to his share. The very admission of the defendant No.1 herein in the earlier proceedings also supports the stand taken by the plaintiff herein.
181. The learned counsel for the plaintiff herein with regard to the contention taken by the defendants herein that they have perfected their right and title over the 'B' schedule 184 O.S.No.4165/1998 c/w O.S.No.7731/2009 property by way of adverse possession, what he contended that the very contention taken by them clearly shows that they have admitted the ownership of plaintiff. So what he contended that the very plea of adverse possession claimed by the defendants clearly shows that the plaintiff is the owner of the 'B' schedule property. In support of his contention he has relied upon the decision rendered in :
(1) AIR Kar 2007(4) page 452 between Thimmappa Rai Vs. Ramanna Rai and others.
(2) AIR 2011 SC page 1480 between Chatti Konati Rao and others Vs. Palle Venkata Subba Rao. (3) AIR 2008 SC page 363 between Natarajan Vs. Ashim Bai and another.
182. I have gone through the said decision and they are relating to article 64 and 65 of the Limitation Act. No doubt in the present case the defendants have taken the plea of adverse possession, but upon perusal of their additional written statement it shows that they have not specifically stated from which date they have perfected their title by adverse possession over 'B' schedule property. When things stood like 185 O.S.No.4165/1998 c/w O.S.No.7731/2009 so, there is no need to discuss about the decisions as referred above.
183. The learned counsel for the defendants by placing his reliance upon the evidence given by PW1, during the course of his cross examination contended that the defendants have right over the plaint 'A' schedule property including the plaint 'B' schedule property, as because the defendants are unmarried daughters of D.Ramaiah Setty, as such they are entitled to stay in plaint 'A' schedule property including the plaint 'B' schedule property. The learned counsel for the defendants in order to substantiate his contention he placed his reliance upon section 8 of Karnataka Hindu Law Women's Right to Property Act, 1963. I have gone through the said provision. Looking into the facts and circumstances of the case the said provision is not made applicable to the present case in hand, as because the defendants at one stage admit that their father and plaintiff herein had purchased the property jointly in the year 1956 and the partition of the same in between them in the year 1965. At another stage they 186 O.S.No.4165/1998 c/w O.S.No.7731/2009 contended that the property purchased in the year 1956 was the self acquired property of their father. If the property is self acquired property of late D.Ramaiah Setty, certainly section 8 of the Karnataka Hindu Law Women's Right to Property Act is not applicable.
184. The learned counsel for the defendants in support of his above contention has relied upon two decisions reported in:
(1) 1990(3) KLJ 264 between Chandrappa and another Vs. Hanumanthappa and others.
(2) CDJ Kar -HC 491 judgment rendered in
Regular Appeal No.1706/2005, between
Shivasharanappa and others Vs.
Sangameshwar and others.
185. In the above said decision their lordships held with the provisions of 1933 Act, particularly section 8 apply to joint family properties. When that would be the case and in view of the dual contentions taken by the defendants as stated above, 187 O.S.No.4165/1998 c/w O.S.No.7731/2009 it is needless to say that the decisions as relied upon by him would not come to the aid of defendants herein.
186. The learned counsel for the defendants during the course of his arguments by placing his reliance upon the evidence given by PW1 during the course of his cross examination contended that he has admitted that at the time of purchasing suit 'A' schedule property they were residing at 4th main road and at that time he was aged about 25-26 years.
He further contended that PW1 also admitted that the property situated at 4th main road had three houses and all the three family members were residing there. So on the basis of the said evidence he contended that the plaintiff is not the absolute owner of the 'B' schedule property. so far as the said submission made by the learned counsel for the defendants it can be said that even though PW1 had said like so in the cross-examination that after the sale of earlier property, his father had purchased the property at 3rd main road, Chamarajpet, Bangalore, but the said contentions cannot be read in isolation, as because it is proved by the plaintiff from 188 O.S.No.4165/1998 c/w O.S.No.7731/2009 the documentary evidence and also the admissions of defendants in the earlier proceedings that in the year 1956 the plaintiff and his father had purchased the property No.254 and 255, 3rd main road, Chamarajpet, Bangalore and subsequently they got partitioned the same. Upon perusal of Ex.D31 it shows that the plaintiff and his father have purchased the two properties bearing No.254 and 255 for total consideration amount of Rs.22,000/-. The contentions of records shows that D.Ramaiah Setty during his life time never challenged mentioning the name of the plaintiff herein as one of the co-owner in Ex.D31. No doubt PW1, i.e., plaintiff herein admits that he has no documents to show that he had contributed his earning for purchasing the property, but so far as the said say of the plaintiff in the evidence is concerned it can be said that one cannot accept document after lapse of 56 years and it would be difficult to produce such kind of documents, i.e., to show his contribution for the purchase of property. On the other hand, though he has not produced material with regard to his contribution to purchase the property, but the registered document, i.e., Ex.D31 sale deed 189 O.S.No.4165/1998 c/w O.S.No.7731/2009 and Ex.P1 partition deed clearly shows that the plaintiff is the owner of 'B' schedule property.
187. The defendants herein in support of their case examined one witness as DW3. Though in his chief examination he has stated that late D.Ramaiah Setty in the year 1964 performed Gruha Pravesha of I floor in property No.255, and he attended the said function, but the very evidence given by him in the cross-examination it shows that he does not know anything about the present case and only he has come before the court to give evidence at the instance of the defendants herein. Under such circumstances it is needless to say that the evidence of this witness is not helpful to the case of the defendants.
188. The defendant No.1 herein who has been examined as DW2 in her evidence for the first time she has stated that for the purchase of 'A' schedule property, his father utilized sale proceedings by selling the jewels of her mother. Upon perusal of the written statement filed by the defendants no 190 O.S.No.4165/1998 c/w O.S.No.7731/2009 where they have whispered about this aspect. Under such circumstances it is needless to say that any amount of evidence without specific pleadings would not suffice the case of the parties. The defendants in support of their case, produced 34 documents at Ex.D1 to 34. The defendants by relying on Ex.D1 contended that they are residing at property No.255, whereas it is the case of the plaintiff that since 1990 defendants are residing in 'B' schedule property with his permission. Upon perusal of Ex.D2 dated 21/12/1964 and 21/7/1974, it shows that it relates to a portion of property bearing No.253, III main road, Bangalore. Looking into the said documents it can be said that it is not related to the suit property. Ex.D3 is of the year 1975 though for a moment if assumed that D.Ramaiah Setty was residing at house No.255, it does not mean that the defendants were also residing in the plaint 'B' schedule property. So it can be said that this document is also not helpful to the case of defendants. Ex.D5 invitation card, Ex.D6 receipt, upon perusal of Ex.D5 invitation card, it shows that plaintiff is the owner of property No.255, but Ex.D6 is not helpful to the case of defendants. So 191 O.S.No.4165/1998 c/w O.S.No.7731/2009 also upon perusal of Ex.D7 it can be said that those documents are also not helpful to the case of defendants. So also on going through Ex.D18 to 27 it shows that wherein there is reference to the names of defendants and Ex.D18 is addressed to defendant No.2 herein showing 225, upstairs, but the suit property is No.255. When that would be the case it is needless to say that none of these documents goes to show that the defendants are residing in property No.255. As it is already discussed in the issues in O.S.No.7731/2009 the defendants herein in order to substantiate their contention they are residing in property No.255 they have not produced either Voters list or Ration card or Election ID card. When that would be the case, whatever the bald contentions taken by the defendants cannot be accepted. As it is already stated above the documents referred above are relating to the correspondence between them and the third parties, but those documents would not goes to support their contention, i.e., to say they are residing in plaint 'B' schedule property as of right. When the defendants admit the ownership of the plaintiff over 'B' schedule property, now they cannot claim ownership by 192 O.S.No.4165/1998 c/w O.S.No.7731/2009 way of adverse possession or right of ownership over the 'B' schedule property.
189. Upon perusal of Ex.D28 it is the sale deed of the year 1955 executed by D.Ramaiah Setty and the plaintiff in respect of other property, it shows that late D.Ramaiah Setty took the name of the plaintiff as one of the co-owners by selling the property for Rs.18,000/-. The evidence given by defendants shows that the original release deeds are in her custody and they got mutated their names in the khathas. So also in view of the settlement deed in respect of property No.254, the same was fallen to the share of their father and subsequently their father gave three portions to the defendants under the settlement deed as per Ex.P14. Even the said fact has been admitted by DW2 in the cross- examination and also she admits that her father also gave one portion of the property to her elder sister Sarojamma. So also the evidence given by DW2 shows that their elder sister Sarojamma or her children have not filed suit for partition or for recovery of money. So also the evidence given by DW2, i.e., 193 O.S.No.4165/1998 c/w O.S.No.7731/2009 defendant No.1 herein shows that after the death of their father in the year 1986, they have not caused notice to the plaintiff demanding their share in the property. so it can be said that absolutely there is no acceptable neither oral or documentary evidence to show that they are residing in property No.255, on the other hand the very affidavit evidence as per Ex.P30 clearly shows that defendant No.1 was resident of property No.254. As it is already stated above even though the defendant No.1 who has been examined as DW2 denies the suggestion put by the learned counsel for the plaintiff that they are in occupation of two rooms since 1990, but the said aspect has been proved by the plaintiff by placing acceptable evidence before the court.
190. Per contra the defendants have failed to prove that prior to 1990 they were in possession of the plaint 'B' schedule property. the evidence on records, i.e., the evidence given by defendants before the court shows that DW2 in her evidence admitted that at the time of registration of sale deed she had not been to the office of the Sub-Registrar and also she admits 194 O.S.No.4165/1998 c/w O.S.No.7731/2009 that BBMP has given separate PID number to the portion given to them. So also the evidence given by her shows that wherein she admits that she gave evidence in O.S.No.849/2002 as per Ex.P32 and Ex.P32(a) and there was partition between her father and brother on 29/6/1965. Even though DW2, i.e., defendant No.1 claims that her sister Sundara Lakshmi and Sathya Lakshmi have their account in Karnataka Bank, but they have not produced the pass book to show that they were residing in the plaint schedule property prior to 1990. During the course of his cross examination when she was questioned that whether they are residing in the two rooms of plaint 'A' schedule property as owners, but for the said question she gave answer that they are in possession as the sharers, but as discussed above the theory of sharers is not at all established. So also the evidence given by DW2 shows that she admits that the release deeds are in her custody, after the death of her father but inspite of that the same has not been placed before the court. So looking into the over all oral and documentary evidence on record it can be said that the plaintiff herein has succeeded to prove that he is 195 O.S.No.4165/1998 c/w O.S.No.7731/2009 the owner of 'B' schedule property and the defendants are in possession of the 'B' schedule property with his permission and it can be said that the defendants have failed to prove that they perfected their title to the suit schedule property by way of adverse possession. For the foregoing reasons and discussions this court is of the opinion that the plaintiff has succeeded to prove issue No.1 and 2 and defendants failed to prove additional issue No.1. Accordingly issue No.1 and 2 are answered in the Affirmative and additional issue No.1 in the Negative.
191. Issue No.3 and 4: In view of my findings to issue No.1 and 2 and additional issue No.1, this court is of the opinion that the plaintiff is entitled for declaration that he is the owner of 'B' schedule property and also entitled for possession of the same from the defendants. Accordingly issue No.3 and 4 are answered in the Affirmative.
192. Issue No.5: The plaintiff in his plaint contended that the suit property is situated in Chamarajpet and the 'B' 196 O.S.No.4165/1998 c/w O.S.No.7731/2009 schedule property would fetch atleast Rs.250/- per month if let out to somebody and the defendants are in his permissive possession and though he requested and demanded to vacate and hand over the possession of the 'B' schedule property, they failed to heed to his request. So he contended that the defendants are liable to pay mesne profits atleast from the date of refusal to deliver vacant possession of 'B' schedule property from December 1997 until deliver of possession at the rate of Rs.250/- per month. No doubt the plaintiff claims mesne profits in this case, but in support of the same, there is no sufficient material has been placed before the court. Apart from that so far as the mesne profits aspect is concerned, it needs to be adjudicated in a separate enquiry. Accordingly issue in question is answered.
193. Issue No.6: So far as this issue is concerned, it can be said that upon perusal of the records, it shows that the plaintiff has paid the deficit court fee of Rs.3,088/- on 19/11/2008 and accordingly my learned Predecessor-in-Office passed an order on 19/11/2009. In view of the same this 197 O.S.No.4165/1998 c/w O.S.No.7731/2009 issue does not survive for consideration. Accordingly issue No.6 in question is answered.
194. Issue No.19 in O.S.No.7731/2009 and issue No.7 in O.S.No.4165/1998: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit filed by the plaintiff in O.S.No.4165/1998 is hereby decreed.
The plaintiff is hereby declared as the owner of 'B' schedule property, which is the part of 'A' schedule property and also he is entitled for the possession of the same from the defendants and the defendants are directed to hand over possession of the 'B' schedule property to the plaintiff within four months from this date.
There shall be separate enquiry about mesne profits under Order 20 Rule 12 C.P.C.
No order as to cost.
198 O.S.No.4165/1998 c/w O.S.No.7731/2009
The suit of the plaintiffs in O.S.No.7731/2009 is hereby dismissed.
No order as to cost.
Draw decree accordingly.
The original judgment and decree shall be kept in O.S.No.4165/1998 and the copy of the same shall be kept in O.S.No.7731/2009.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 20th day of January 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 : D.R.Hanumantharaju
Witnesses examined for the defendant:
D.W.1 : K.M.Vijibulla
D.W.2 : D.R.Premaleela
D.W.3 : P.Vijay Kumar
199 O.S.No.4165/1998 c/w O.S.No.7731/2009
Documents marked for the plaintiff:
Ex.P1 : Original partition deed dated 29/3/1965.
Ex.P2 : Khatha endorsement,
Ex.P3 : Tax paid receipt,
Ex.P4 : Rough sketch of entire property,
Ex.P5-8 : Certified copy of judgment in
RFA No.2038/2005 and order sheet, decree,
compromise petition in O.S.No.3052/1993 c/w O.S.No.820/97 Ex.P9 : Original registered conditional sale deed.
Ex.P10 : Original registered gift deed. Ex.P11-13 : Certified copies of three release deeds. Ex.P14,15 : Certified copy of settlement and 'Will' copy, Ex.P16 : Ledge book.
Ex.P18,17 : Ledger book No.29, registered memorandum of deposit of titles.
Ex.P19 : Registered deed of discharge. Ex.P20-24: Certified copy of plaint. Ex.P25 : True extract of register of firms.
Ex.P26-28 : The office copy of three letters.
Ex.P29 : Copy of petition in Misc.156/2008,
Ex.P30 : Copy of evidence affidavit in
O.S.No.4396/2000.
Ex.P31 : Copy of partnership deed.
Ex.P32 : Certified copy of deposition in
O.S.No.3142/2002,
200 O.S.No.4165/1998 c/w O.S.No.7731/2009
Ex.P33 : Photographs.
Documents marked for the defendant:
Ex.D1 : Letter
Ex.D2 : Receipt
Ex.D3 : Agreement of lease
Ex.D4 : Ledger book
Ex.D5 : Wedding card
Ex.D6 : Receipt
Ex.D7 : Xerox copy of application
Ex.D8 : Original agreement
Ex.D9 : Notice of demand
Ex.D10 : Post card
Ex.D11,12: Receipts,
Ex.D13,14: Lease agreement
Ex.D15-17: Receipts
Ex.D18 : Letter
Ex.D19 : Receipt
Ex.D20,21: Invoice and letter
Ex.D22 : Registration card
Ex.D23,24: Letters
Ex.D25 : Share certificate
Ex.D26,27: Marriage invitation cards
Ex.D28 : Certified copy of the sale deeds
Ex.D29 : Ledger book
Ex.D30 : Ledger book
201 O.S.No.4165/1998 c/w O.S.No.7731/2009
Ex.D31 : Certified copy of the sale deed
Ex.D32,33: Photos
Ex.D34 : CD
(Sadananda M. Doddamani)
XXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
202 O.S.No.4165/1998 c/w O.S.No.7731/2009
203 O.S.No.4165/1998 c/w O.S.No.7731/2009
Judgment pronounced in open court (vide
separate detailed judgment) with the
following operative portion:-
ORDER
The suit filed by the plaintiff in
O.S.No.4165/1998 is hereby
decreed.
The plaintiff is hereby declared
as the owner of 'B' schedule
property, which is the part of 'A'
schedule property and also he is
entitled for the possession of the
same from the defendants and the
defendants are directed to hand over
possession of the 'B' schedule
property to the plaintiff within four
months from this date.
204 O.S.No.4165/1998 c/w O.S.No.7731/2009
There shall be separate enquiry
about mesne profits under Order 20
Rule 12 C.P.C.
No order as to cost.
The suit of the plaintiffs in
O.S.No.7731/2009 is hereby
dismissed.
No order as to cost.
Draw decree accordingly.
The original judgment and
decree shall be kept in
O.S.No.4165/1998 and the copy of
the same shall be kept in
O.S.No.7731/2009.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.