Bangalore District Court
Mamatha vs Munipoojappa M on 3 January, 2024
KABC010089552008
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI. SANTHOSHKUMAR SHETTY N., B.Com., LL.M.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 3 rd DAY OF JANUARY, 2024
O.S.No.531/2008
Plaintiff:- Kum.Mamatha,
D/o.Muni Poojappa,
Aged about 20 years,
Residing at Kalkere Village,
Horamavu Post,
Bangalore - 560 043.
(Guardianship discharged as per
Order dated 17.12.2014)
(By Adv. Sri.Mani Kanta H.B.)
Vs.
Defendants:- 1. Shri.M.Munipoojappa,
S/o.Sri.Dodda Muniyappa,
Aged about 36 years,
Residing at Kalkere Village,
2 O.S.No.531/2008
Horamavu Post,
Bangalore - 560 043.
2. Mrs.Mala R., DELETED
W/o.Shri.Bhaskar R.,
Aged about 33 years,
Residing at No.126/1,
Rama Temple Street,
Jeevanahalli, Cox Town,
Bangalore - 560 005.
3. Sri.Jojo George, DELETED
S/o.Sri.I.C.George,
Aged about 36 years,
Residing at No.371/a,
Sri.Manjunatha Nilaya,
Flower Garden,
Babusab Palya Main Road,
Kalyana Nagar post,
Bangalore - 560 043.
4. Shri.M.J.Joseph,
S/o.Shri.M.P.Joseph,
Aged about 52 years,
No.11-B, 11th Cross,
Kalkere Main Road,
Behind Bombay Tailors,
Ramamurthy Nagar,
Bangalore -560 016.
5. Smt.A.Usha Nandini,
W/o.Shri.N.L.Narayanaswamy,
Aged about 30 years,
R/at No.(1039) 29, 3rd Cross,
Anandanagar, 1st Block,
R.T.Nagar Post,
Bangalore - 560 032.
6. Smt.Lalitha Ganesh, DELETED
W/o.Ganesh,
3 O.S.No.531/2008
Aged about 35 years,
Near Om Shakthi Devasthana,
Kaggadasapura Village,
C.V.Raman Nagar Post,
Bangalore - 560 093.
7. Shri.M.Kaverappa, DELETED
S/o.Shri.Muni Hanumaiah,
Aged about 37 years,
R/at Kalkere Village,
Horamavu Village,
Bangalore - 560 043.
8. Shri.V.Srinivasa Rao,
S/o.V.Rama Rao,
Aged about 31 years,
C/o.V.Anjinappa,
No.1039, New No.29,
3rd Cross, Cholanagar,
Anand Nagar, 1st Block,
Bangalore - 560 032.
9. Shri.S.B.Nagaraj, DELETED
S/o.Shri.Bathiyappa,
Aged about 41 years,
R/at Sonnahalli Puram,
Hasihalli Post, Hoskote,
Bangalore East Taluk.
10. Smt.Neela Somasekhar, DELETED
Aged about 31 years,
W/o.Somasekhar C.K.,
R/at No.293,
Kanakadasa Road,
Kalkere, Horamavu Post,
Bangalore - 560 0423.
11. Gurusiddappa Channabasappa
Hurkadli, DELETED
4 O.S.No.531/2008
Aged about 33 years,
S/o.Sri.Channabasappa S.Hurkadli,
No.13, Silver Cloud Layout,
Opp: Sunshine School,
Kalkere Main Road,
Bangalore - 560 043.
(D1- Exparte
D2, D3, D6, D7, D9 to D11 - Deleted
D4 by Adv. Sri.T.Peter Prabhu Dattam
D5 by Adv. Sri.P.B.Raju
D8 by Adv. N.H.K.)
Date of institution of the suit : 14.01.2008
Nature of the suit : Declaration & Permanent
Injunction
Date of commencement of : 11.02.2015
Recording of the evidence
Date on which the Judgment : 03.01.2024
was pronounced
Total Duration : Years Months Days
15 11 19
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
This is a suit filed by the plaintiff for the relief of declaration that, the alienations made by defendant No.1 in favour of defendants No.2 to 11, in respect of the suit schedule properties 5 O.S.No.531/2008 are not binding on her and for the relief of permanent injunction to restrain the defendants No.2 to 11 or anybody claiming through them from interfering with her peaceful possession and enjoyment over the suit schedule properties.
2. The brief facts of the case of the plaintiff is that, as on the date of suit, she was minor and represented by her mother/natural guardian. Late Beerappa was the great grandfather of plaintiff. He had 3 sons by name Doddamuniyappa, Aneappa and B.Muniyappa. Late Doddamuniyappa was the grandfather of plaintiff. Doddamuniyappa died leaving behind his wife Smt.Narayanamma and son i.e., defendant No.1. On 03.12.2002, there was Registered Partition Deed, executed between Smt.Narayanamma and her two sons by name D.Munibeerappa and M.Munipoojappa (defendant No.1). In the said partition, the suit schedule properties bearing Sites No.1 to 12 and property bearing Sy.No.484, measuring 12.75 gutas, all situated at Kalkere Village, K.R.Puram Hobli, Bangalore South Taluk were allotted to the share of defendant No.1. The plaintiff is the only legal heir of defendant No.1 and she acquired right over the suit schedule properties from the date of her birth. Hence defendant No.1 has no absolute right over the suit schedule properties. Inspite of that, he alienated the suit schedule properties in favour of defendants No.2 to 11 by falsely contending that, he is the absolute owner of the suit schedule properties. As her father was addicted to bad vices and he did not mend his behaviour, the mother of plaintiff insisted him to execute the Gift Deed in her favour, in respect of the suit 6 O.S.No.531/2008 schedule properties. On 14.01.2003, he executed an Unregistered Gift Deed in her favour. Though the Registered Partition Deed was effected on 03.12.2002, the Khatha was not transferred in the name of defendant No.1 until 22.05.2006. Hence the mother of plaintiff was under the impression that, the suit schedule properties were intact. As the Gift Deed executed by defendant No.1 in favour of the mother of plaintiff was unregistered, as per the advise of the elders of the family, he executed a Registered Gift Deed in respect of the suit schedule properties in favour of the mother of plaintiff on 10.09.2007. Accordingly, the Khatha came to be changed in the name of the mother of plaintiff on 26.10.2007. Through the well- wishers, the mother of plaintiff came to know that, under the influence of alcohol, the defendant No.1 had alienated some of the suit schedule properties in favour of defendants No.2 to 11 for lesser price, than the prevailing market value. As the suit schedule properties are undivided family properties of plaintiff, she is having legitimate share. During the pendency of this suit, the defendants No.2, 3, 6, 7, 9 to 11 have entered into amicable settlement with the plaintiff and thereby, name of those defendants have been deleted from the cause title of the plaint.
3. Inspite of service of suit summons, the defendant No.1 remained absent and placed him exparte. In response to the suit summons, the defendants No.4, 5 and 8 appeared through their respective counsel and filed their written statement. The defendant No.4 in his written statement has taken contention that, he had purchased the Item No.3 of the suit schedule properties from 7 O.S.No.531/2008 defendant No.1 under a Registered Sale Deed dated 17.10.2003 for valuable consideration. After purchase, he got the revenue records and paying upto-date tax to the concerned authority and put up construction in the said property as per Sanctioned Plan. He also obtained electricity connection and in peaceful possession and enjoyment of the same. After 3½ years, the plaintiff had filed this suit in collusion with defendant No.1 with an intention to extract money from defendant No.4 and other purchasers. After family partition, the defendant No.1 has formed the residential layout and accordingly, the Item No.3 of the suit schedule properties was sold in favour of defendant No.4. Since the alienation was made for family legal necessity, suit of the plaintiff is not maintainable and sought for dismissal of the suit with exemplary cost.
4. The defendant No.5 admitting certain averments made in paras No.5, 8, 9 and 10 of the plaint has contended that, the defendant No.1 on his own and as a minor guardian of plaintiff, sold the Item No.4 of the suit schedule properties in her favour under a Registered Sale Deed dated 17.03.2004. After purchase, she got changed the Khatha in respect of the said property and paying tax to the concerned Authority, regularly. She obtained permission from the concerned Authority and put up residential house therein and also obtained power connection and water supply. After lapse of 4 years, the plaintiff had filed this suit. Hence suit is barred by limitation. Accordingly, she sought for dismissal of the suit with exemplary cost.
8 O.S.No.531/20085. The defendant No.8 by denying the averments made in the plaint has taken contention that, the plaintiff had filed this suit in collusion with defendant No.1 to extract money, by adopting pressure tactics. Further contended that, suit is not properly valued and court fee paid on the plaint is insufficient. By virtue of the Registered Sale Deed, he became the absolute owner of Item No.7 of the suit schedule properties and mutation came to be changed in his name and he is regular in paying the tax to the concerned Authority. After lapse of 4 years, the plaintiff had filed this suit for monetary gain. Since he acquired valid right, title and interest over Item No.7 of the suit schedule properties, the plaintiff and defendant No.1 are estopped from claiming any share over the property purchased by him and prayed for dismissal of the suit with exemplary cost.
6. The defendants No.2, 3, 6, 7, 9 to 10 also filed their written statement by taking similar contentions. Since their name has been deleted from the cause title of the plaint as per the Order dated 03.12.2015, passed on I.A.No.12. This court did not find any reason to consider their written statements.
7. On the basis of the pleadings of the parties, my predecessor-in-office has framed the following issues for determination:-
ISSUES
1. Whether the plaintiff proves that the defendant No.1 has executed Unregistered Gift Deed on 14.01.2003 and a Registered Gift Deed on 10.09.2007?9 O.S.No.531/2008
2. Whether the plaintiff proves that the alienations made by defendant No.1 in favour of defendants No.2 to 10 are not binding on her?
3. Whether the defendants prove that they are bonafide purchasers of portion of the schedule property for valuable consideration?
4. Whether the valuation of the suit is proper and court fee paid is sufficient?
5. Whether the plaintiff is entitled for the reliefs claimed?
6. What Order or Decree ?
8. After settlement of issues, the mother of the plaintiff has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.23 were marked through PW-1 and closed her side. On behalf of contesting defendants, defendants No.4 and 8 have entered into the witness box as DWs.1 and 2 and Ex.D.1 to Ex.D.56 were marked on their behalf and closed their side.
9. Heard the arguments of the learned counsel for plaintiff and defendants No.4, 5 and 8.
10. My findings on the above issues are as under:-
Issue No.1: In the affirmative.
Issue No.2: In the negative.
Issue No.3: In the affirmative.
Issue No.4: In the affirmative.
Issue No.5: In the negative.
Issue No.6: As per final order below
for the following:
10 O.S.No.531/2008
REASONS
11. Issues No.1 to 3:- Since all these issues are interconnected, taken up together for discussion to avoid repetition. Before looking to the points in controversy, first of all, it is necessary to notice some of the undisputed facts. It is not in dispute that, the plaintiff is the daughter of defendant No.1 and defendants No.2 to 11 are the purchasers of sites as shown in Items No.1 to 11 of plaint schedule. It is also not in dispute that, in the Registered Partition Deed dated 03.12.2002, the suit schedule properties and some more items were allotted to the share of defendant No.1. The plaintiff was minor as on the date of institution of the suit and she was represented by her mother as her natural guardian. The execution of an Unregistered Gift Deed dated 14.01.2003 and Registered Gift Deed dated 10.09.2007 by defendant No.1 in favour of the mother of plaintiff is also not in serious dispute. As such, there is no impediment in answering Issue No.1 in favour of the plaintiff.
12. As far as Issues No.2 and 3 are concerned, heavy burden is upon the plaintiff to prove that, the alienation made by defendant No.1 in favour of contesting defendants is not binding on her. Incidentally, the onus casted upon the defendants No.4, 5 and 8 to establish that, they are the bonafide purchasers of the portion of the suit schedule properties for valuable consideration. Since the name of defendants No.2, 3, 6, 7, 9 to 11 have been deleted from the cause title of plaint, this court need not look into 11 O.S.No.531/2008 the alienation made by defendant No.1 in favour of those defendants.
13. The admission made by defendants No.4, 5 and 8 and certified copies of Sale Deeds marked at Ex.P.9, Ex.P.10 and Ex.P.13 makes it very clear that, as per Sale Deed dated 17.12.2003, the defendant No.4 had purchased Sites No.2 and 3 from defendant No.1 in the layout formed in property bearing No.477, situated at Kalkere Village for valuable sale consideration of Rs.1,20,000/-. On 17.03.2004, the defendant No.5 had purchased Site No.6 from defendant No.1 in the layout formed in property No.477, situated at Kalkere Village for valuable sale consideration of Rs.60,000/- and on 17.04.2004, the defendant No.8 had purchased Site No.5 from defendant No.1 in the layout formed in property No.477, situated at Kalkere Village for valuable sale consideration of Rs.60,000/-. Taking note of the dates referred in those Sale Deeds, the learned counsel for defendants No.4 and 8 has canvassed before the court that, as on the date of alienation in favour of those defendants, the plaintiff was not the co-parcener of the family. Since Section 6 of Hindu Succession (Amendment) Act, 2005 came into force on 20.12.2004, the alienation made by defendant No.1 prior to said amendment cannot be questioned by the plaintiff. In support of said contention, he relied on the decision of our Hon'ble High Court in the case of Rathnamma and others Vs. Narayanappa Muninanjappa and others, reported in 2023 (3) AKR 37. In para No.8 the said decision, it was held as under;
12 O.S.No.531/2008"It is not in dispute that the plaintiffs are the daughters of defendant No.1 Narayanappa and the sale was made in the year 1991 and the amendment was brought into Hindu Succession Act in the year 2005. No doubt, the principles laid down in the recent judgment is that the daughters are also co-parceners as that of a son. But the fact is that the amendment is made in 2005 and the father sold the property in the year 1991. The fact is that the sale was made for a valuable sale consideration and as on the date of sale, no right was conferred to the appellants."
14. Refuting the aforesaid contention taken by the learned counsel for defendants No.4 and 8, the learned counsel for plaintiff has vehemently argued that, prior to enforcement of Hindu Succession (Amendment) Act, 2005, the Karnataka Amendment with respect to Section 6 of Hindu Succession Act was in force. The plaintiff being an unmarried daughter as on the date of alienation made in favour of defendants No.4, 5 and 8, she became the co- parcener with respect to the suit schedule properties, by virtue of Section 6 of Hindu Succession (Karnataka Amendment) Act. Relying much on Karnataka Amendment, it was canvassed before the court that, in terms of Section 2 of the Karnataka Act No.23 of 1994, Section 6A came into force on 30.07.1994. In support of said contention, he relied on the decision of our Hon'ble High Court in the case of Smt.Shantha @ Pushpa Vs. Sri.Nagappa Bhajareddy (R.S.A. No.877 of 2006).
15. On perusal of 3 Sale Deeds in the name of defendants No.4, 5 and 8, it is clear that, all those Sale Deeds came to be 13 O.S.No.531/2008 executed as and when Karnataka Amendment was in force. This being the state of affair, the contention taken by the defendants No.4, 5 and 8 that, the plaintiff was not the co-parcener as on the date of alienation holds no water. But still the burden is upon the plaintiff to prove that, all those alienations were not binding on her.
16. The other defence set up by the contesting defendants is that, apart from the suit schedule properties, the defendant No.1 acquired some more properties as per Family Partition effected on 03.12.2002. But plaintiff with sole object of monetary gain has filed this suit only in respect to the suit schedule properties. In her cross- examination, PW-1 has clearly admitted that, apart from the suit schedule properties, the family is having one more properties. Since this suit is filed only in respect of alienated properties, the suit is bad for partial partition.
17. Refuting all those contentions, the learned counsel for plaintiff has vehemently argued that, as there is no contention in their written statements, now the defendants cannot take such defence that, suit is bad for partial partition. As such, evidence without pleadings cannot be looked into. Since there is no such pleading on the part of the contesting defendants, now they cannot take the undue advantage of stray admission given by PW-1. In support of said contentions, he relied on the following decisions of Hon'ble Supreme Court;
1. Union of India Vs. Ibrahim Uddin and another, reported in (2012) 8 SCC 148.
14 O.S.No.531/20082. Bachhaj Nahar Vs. Nilima Mandal and another, reported in (2008) 17 SCC 491.
3. Ram Sarup Gupta (Dead) by LRs. Vs. Bishun Narain Inter College and others, reported in (1987) 2 SCC 555.
18. In the afore cited decisions, the Hon'ble Supreme Court has made it clear that, evidence without pleadings cannot be looked into. As rightly contended the learned counsel for plaintiff, none of the defendants have taken any contention in their written statement that, the suit of the plaintiff is bad for partial partition. Such being the case, on the ground of mere technicality it cannot be said suit, suit of the plaintiff is bad for partial partition.
19. In this background of the matter, to look into the other aspects of the matter, I have carefully gone through the pleadings of the parties. As on the date of suit, the plaintiff was minor and her mother being the natural guardian has instituted this suit against her husband and the persons, who have purchased the sites from him. The mother of plaintiff being the author of plaint has taken contention that, her husband was addicted to bad vices. Hence she insisted him to execute the Gift Deed in respect of the suit schedule properties. Later on, she realised that, as the Gift Deed executed by him was unregistered, same is not valid in the eye of law and as per the advise of the elders, she got the Registered Gift Deed on 10.09.2007. However, through well-wishers she came to know that, much prior to execution of the Gift Deed, certain properties have 15 O.S.No.531/2008 been alienated by her husband in favour of contesting defendants and others.
20. Herein the specific contention of the plaintiff is that, as she became the co-parcener as on the date of those alienations, the defendant No.1 had no exclusive right to alienate the property and the Sale Deeds executed by her father are not binding on the plaintiff. On perusal of documents furnished by the plaintiff, Ex.P.5 is the Registered Gift Deed dated 10.09.2007 executed by defendant No.1 in favour of the mother of plaintiff, in respect of suit schedule properties, alloted in his favour in the Family Partition effected on 03.12.2002. In my considered view, the certain averments made in the Registered Gift Deed is relevant for consideration. At page No.3, defendant No.1 has made his declaration as under;
"That the donor does hereby declare and assure unto the Donee that he has a clear, marketable and unimpeachable title to convey the schedule property in the manner now done and that he has acquired the same as said above and that he is the absolute owner and no other person/s have any manner of right, title and interest in schedule property and that the Donor is at perfect liberty to effect this gift of the schedule property."
21. In persuasion of love and affection, the defendant No.1 executed the Gift Deed in favour of his wife, with respect to land bearing Sy.No.477, measuring 17 guntas and Sy.No.485, measuring 1.11 guntas, both situated at Kalkere Village. Ex.P.3 is the certified copy of Registered Partition Deed dated 03.12.2002 executed between defendant No.1, his elder brother Munibeerappa and 16 O.S.No.531/2008 mother Smt.Narayanamma. Looking into the schedule incorporated therein, it is clear that, both Items No.1 and 2 referred in Ex.P.5 were allotted to the share of defendant No.1 in the said partition. The recitals in Ex.P.5 makes it further clear that, the mother of plaintiff being the beneficiary under the Gift Deed whole heartedly accepted the recitals incorporated therein by putting her signature as a Donee. Further, the mother of plaintiff, being the author of the plaint, in para No.5 has categorically admitted the execution of Gift Deed in her favour. One more thing for consideration is that, even though the plaintiff was minor as on the date of suit, during the pendency of the suit, she attained the age of majority and thereby guardianship was discharged as per Order dated 17.12.2014. Though the plaintiff attained the majority, on 11.02.2015, the mother of plaintiff herself has entered into the witness box as PW-1 and reiterated the averments made in the plant. Such being the case, it is crystal clear that, whatever pleaded and deposed by her mother is binding on the plaintiff. In her lengthy cross-examination, PW-1 has unequivocally admitted that, she is residing in one roof along with plaintiff and defendant No.1. Further admitted that, apart from the suit schedule properties, still there are other properties in the name of her husband. Further admitted that, her daughter is a M.B.A.Graduate and as on the date of her cross-examination, her daughter was aged about 26 years. It was admitted that, nothing is placed before the court to show that, she was having her income to manage the date- to-day expenses. On the contrary, she has categorically admitted that, the defendant No.1 is the Manager of their family. PW-1 has 17 O.S.No.531/2008 further admitted that, during the pendency of the suit, the plaintiff had received certain sum of money from the defendants No.2, 3, 6, 7, 9 to 11, they have executed the Consent Deeds in their favour.
22. Even though the plaintiff was a co-parcener of the family, as on the date of alienations, there are reasons to believe that, the defendant No.1 being the other member of the co-parcenary, is having equal right over the properties allotted to his share. Now, the plaintiff is prosecuting this suit only against the defendants No.4, 5 and 8 and contending that, the Sale Deeds executed in their favour are not binding on her. However, the plaintiff after receiving certain sum of money, executed Consent Deed in favour of defendants No.2, 3, 6, 7, 9 to 11. Looking into the compromise arrived between the plaintiff and those defendants, there are reasons to believe that, the plaintiffs has got more share by way of cash than what she is legally entitled to get.
23. As stated supra, the recitals of Gift Deed, marked Ex.P.5 makes it very clear that, the defendant No.1 proclaiming himself as the absolute owner of suit schedule properties, executed the Registered Gift Deed in favour of the mother of plaintiff. Whatever recitals incorporated in Ex.P.5 was admitted by the mother of plaintiff by putting her signature as a Donee. Even after discharge of guardianship also, the plaintiff has prosecuted the case through her mother. Hence whatever consent given by her mother is equally binding on the plaintiff. Added to that, the unequivocal admission on the part of PW-1 makes it very clear that, the relationship of herself 18 O.S.No.531/2008 and plaintiff with defendant No.1 is cordial. Since the date of her marriage, she is residing with defendant No.1. Further, except the bald allegations, nothing is placed before the court as to show that, the defendant No.1 was addicted to bad vices and alienated the properties for his lavish life.
24. Now it is clear that while getting the Registered Gift Deed in her favour, the mother of plaintiff has clearly admitted that, the defendant No.1 was having exclusive right to alienate the property. But as far as the alienation made in favour of contesting defendants is concerned, they have taken an U-turn and pleaded that, the defendant No.1 was not having exclusive right to deal with the property. Looking into the contentions taken by the contesting defendants, it is their categorical defence that, the alienation was made for family legal necessity. Hence same is binding on plaintiff. In support of said contention, the learned counsel for defendant No.4 has relied on the following decisions;
1. Muniyappa Vs. Ramaiah, reported in AIR 1996 Karnataka 321.
2. Sunder Das and others Vs. Gajananrao and others, reported in AIR 1997 SC 1686;
3. Subodhkumar and others Vs. Bhagwant Namdeo Rao Mehetre and others, reported in AIR 2007 SC 1324.
4. Kehar Singh (D) Thr. L.Rs. and others Vs. Nachittar Kaur and others, reported in AIR 2018 SC 3907.
19 O.S.No.531/200825. The sum and substance of those decisions is as under;
"The Manager of a Joint Hindu Family has the competence and power to alienate the joint family property for family necessity or benefit to the estate. Such a sale would bind not only his share but the share of the other members as well. No doubt, if the father is the manager, he has got certain special privileges but so far the alienation of a joint family property is concerned, the manager of the Joint Hindu Family also got equal power with that of the father to sell the joint family property which would be binding on the other coparceners as well in certain contingencies. Such a sale, even though not for family necessity, is not void but only voidable. If the manager of the Joint Hindu Family alienates the joint family property, the remedy of the coparcener is only to file a suit for partition and recover possession of his share, even if the alienation is without legal necessity."
26. Looking into the educational qualification of plaintiff, there are reasons to believe that, the defendant No.1 never neglected his family and whatever the alienation made by him was for family legal legal necessity. As such, the law laid down in the afore cited decisions are squarely applicable to the case on hand.
27. Since the stands taken by the plaintiff is inconsistent to each other, to come to the right conclusion in the matter, I have carefully gone through the voluminous decisions of the Hon'ble Supreme Court cited herein below;
1. The Joint Action Committee of Airlines Pilots Associations of India & others Vs. The Director General of Civil Aviation and others, reported in Civil Appeal No.3844 of 2011.
20 O.S.No.531/20082. R.N.Gosain Vs. Yashpal Dhir, reported in AIR 1993 SC 352.
3. Babu Ram @ Durga Prasad Vs. Indra Pai Singh (D) by L.Rs., reported in (1988) 6 SCC 358.
4. P.R.Deshpandey Vs. Maruti Balaram Haibatti, reported in (1998) 6 SCC 507.
5. Mumbai International Airport Private Limited Vs. Golden Chariot Airport and another, reported in (2010) 10 SCC 422.
28. In the case of R.N.Gosain cited above, it was held as under:
"Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."
29. In the case of The Joint Action Committee of Airlines Pilots Associations of India & others cited above, the Hon'ble Supreme Court has held as under;
"The doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or 21 O.S.No.531/2008 conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily."
30. As stated above, while getting the Registered Gift Deed in her favour, the mother of plaintiff being the guardian of plaintiff has clearly admitted that, the defendant No.1 was having absolute right over the suit schedule properties. But while litigating against the defendants, the mother of plaintiff has taken a different stand. As such, it is clear that, the conduct of plaintiff, her mother is nothing but blowing hot and cold in the same breath, but it is not worth for approval. The manner in which the plaintiff through her mother prosecuting the case makes it clear that, all the members of family hatched a plan and instituted this suit against the purchasers, who have purchased the property for valuable consideration. Merely because the defendants No.2, 3, 6, 7, 9 to 11 entered into compromise with the plaintiff, it does not mean that, they are not having case on merits. It seems that, fearing about the prolonged litigation, they ventured to enter into compromise. As such, the plaintiff cannot take their weaknesses as a trump card to proceed against the contesting defendants. This being the state of affair, the plaintiff has miserably failed to prove that, the alienation made by defendant No.1 in favour of contesting defendants is not binding on her. Incidentally, the contesting defendants have proved that, they are the bonafide purchasers of the portion of the suit schedule properties for valuable consideration. With these observations, 22 O.S.No.531/2008 Issues No.1 and 3 are answered in the affirmative and Issue No.2 in the negative.
31. Issue No.4:- While answering the aforementioned issues, this court has come to the conclusion that, the plaintiff has miserably failed to prove that, alienations made by defendant No.1 in favour of contesting defendants are not binding on her. Such being the case, this issue has no much importance. However, though the defendants have taken contention that, the suit was not properly valued and court fee paid on the plaint is insufficient, nothing is placed before the court that to substantiate their contention. As such it can be held that, the suit was properly valued and court fee paid on the plaint is sufficient. Accordingly, Issue No.4 is answered in the affirmative.
32. Issue No.5: While answering the Issues No.1 to 3, this court has come to the conclusion that, the plaintiff has failed to prove that, alienation made by her father in favour of contesting defendants is not binding on her. In addition to that, the plaintiff through her mother has admitted and accepted the Registered Gift Deed executed by defendant No.1 in favour of her mother in respect of the suit schedule properties. Hence the plaintiff is not entitled for any relief in respect of other items of the suit schedule properties Accordingly, Issue No.5 is answered in the negative.
33. Issue No.6: In view of the above discussions, this court proceed to pass the following:-
23 O.S.No.531/2008ORDER Suit of the plaintiff is hereby dismissed.
Parties are directed to bear their own cost.
(Dictated to the Stenographer Grade-I, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, on this the 3rd day of January, 2024) (SANTHOSHKUMAR SHETTY N.) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
ANNEXURE List of witnesses examined for plaintiff:
PW.1 : Smt.M.Shyamala List of documents exhibited for plaintiff:
Ex.P.1 : General Power of Attorney
Ex.P.2 : Certified copy of Partition Deed
dated 03.12.2002
Ex.P.3 : Certified copy of Partition Deed
dated 03.12.2002
Ex.P. 4 : Genealogical Tree
Ex.P.5 : Registered Gift Deed
dated 10.09.2007
Ex.P.6 & 7 : 2 RTC
Ex.P.8 : Certified copy of Sale Deed
24 O.S.No.531/2008
dated 16.01.2003
Ex.P.9 : Certified copy of Sale Deed
dated 17.12.2003
Ex.P.10 : Certified copy of Sale Deed
dated 17.03.2004
Ex.P.11 : Certified copy of Sale Deed
dated 16.08.2004
Ex.P.12 : Certified copy of Sale Deed
dated 13.12.2004
Ex.P.13 : Certified copy of Sale Deed
dated 17.04.2004
Ex.P.14 : Certified copy of Sale Deed
dated 19.03.2005
Ex.P.15 : Certified copy of Sale Deed
dated 31.01.2006
Ex.P.16 : Certified copy of Sale Deed
dated 09.06.2006
Ex.P.17 : RTC
Ex.P.18 & 19: 2 Photographs
Ex.P.20 : C.D.
Ex.P.21 : Certified copy of Sale Deed
dated 03.12.2003
Ex.P.22 : B-Khatha
Ex.P.23 : Tax Paid Receipt
List of witnesses examined for defendants :
DW.1 : Sri.M.J.Joseph
DW.2 : Sri.V.Srinivasa Rao
List of documents exhibited for defendants :
Ex.D.1 : Certified copy of Sale Deed
dated 17.12.2003
Ex.D.2 : B-Khatha
Ex.D.3 to 6 : Tax Paid Receipts
Ex.D.7 : Self Assessment Tax Paid Receipt
Ex.D.8 : Electricity Bill
Ex.D.9 : Electricity Receipt
25 O.S.No.531/2008
Ex.D.10 : Encumbrance Certificate
Ex.D.11 : Certified copy of Memo
Ex.D.12 : Certified copy of Sale Deed
dated 24.06.2010
Ex.D.13 : Certified copy of Sale Deed
dated 16.09.2010
Ex.D.14 : Certified copy of Sale Deed
dated 09.04.2010
Ex.D.15 : Demand Register Extract
Ex.D.16 : Power Sanction Letter
Ex.D.17 : Building License
Ex.D.18 & 19: 2 Photographs
Ex.D.20 : C.D.
Ex.D.21 : Photo Receipt
Ex.D.22 : Gas Receipt
Ex.D.23 : B-Khatha
Ex.D.24 to 33: Tax Paid Receipts
Ex.D.34 : Registered Sale Deed
dated 17.04.2004
Ex.D.35 : Encumbrance Certificate
Ex.D.36 to 40: Certified copies of Tax Paid Receipts Ex.D.41 to 47: 7 Computer Generated Tax Paid Receipts Ex.D.48 : B-Khataha Ex.D.49 to 54: 6 Colour Photographs Ex.D.55 : C.D. Ex.D.56 : Certificate under Section 65 of the Indian Evidence Act XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.