Bangalore District Court
Sri.Chikkanna vs Sri.Beerappa on 6 November, 2020
1 O.S.2488/1981
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 6 th DAY OF NOVEMBER, 2020.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.2488/1981
PLAINTIFF/S: Sri.Chikkanna,
S/o Sampanna,
Since dead by his legal
representatives
1(a) Smt. Lakshmamma,
W/o Late Chikkanna,
Aged 55 years,
1(b) Sri.Raju,
S/o Late Chikkanna,
Aged 35 years,
1(c) Sri.Nagaraja,
S/o Late Chikkanna,
Aged 33 years,
2 O.S.2488/1981
1(d) Sri.Krishna,
Late Chikkanna,
Aged 29 years,
1(e) Deepa,
D/o Late Chikkanna,
Aged 20 years,
All are residing at
No.227, 3 rd cross,
Srinivasanagar,
Bangalore - 79.
(By Sri.H.S.Murthy, Advocate)
Vs.
DEFENDANT/S: 1. Sri.Beerappa,
S/o late Narayanaswamappa,
(deceased on 19.9.2007 represented
by legal representatives)
1(a) Puttamallamma,
W/o late Beerappa,
Aged about 65 years,
1(b) B.Bhojaraj,
S/o late Beerappa,
Since dead by his legal
representatives,
1(b)(a) Smt.Devika,
W/o late B.Bhojaraj,
3 O.S.2488/1981
Aged about 55 years,
1(b)(b) Sri.Chethan,
S/o Late B.Bhojaraj,
Aged about 35 years,
1(b)(c) Sri.Chandan,
S/o late B.Bhojaraj,
Aged about 30 years,
1(c) B.Shashikumar,
S/o Late Beerappa,
Aged about 30 years,
All are residing at No.340/10,
2 nd 'C' cross, 1 st main,
Vijayanagar,
Bangalore - 560 040.
2. Sri.Ramakrishna,
S/o late Narayanaswamappa,
Since dead rep. by his legal
representatives
2(a) Smt.Kamalamma,
W/o late Ramakrishna,
Aged 30 years,
2(b) Sri.Prakash,
S/o late Ramakrishna,
Aged 28 years,
4 O.S.2488/1981
2(c) Sri.Guruprasad,
S/o late Ramakrishna,
Aged 25 years,
2(d) Sri.Hemanth Kumar,
S/o late Ramakrishna,
Aged 25 years,
2(e) Sri.Vasudeva,
S/o late Ramakrishna,
Aged 22 years,
Defendants 2(a) to (e) are
R/at No. 15,
Sanjeevappa lane,
Kavene Revanna Shetty Pete,
Avenue road cross,
Bangalore - 560 002.
3. Gopi,
S/o late Narayanaswamappa
Since dead by his legal
representatives
3(a) Smt.Chikkamma,
W/o late Gopi,
Aged about 55 years,
3(b) Smt.Shantha,
D/o late Gopi,
Aged 38 years,
5 O.S.2488/1981
3(c) Smt.Hemavathi,
D/o late Gopi,
Aged about 34 years,
Defendants 3(a) to (e) are
R/at No.15,
Sanjeevappa lane,
Kavene Revanna Shetty Pete,
Avenue road cross,
Bangalore - 560 002.
4. Raju @ Nagaraju,
S/o late Narayanaswamappa,
Since dead by his legal
representatives
4(a) Smt.Gowramma,
W/o late Raju @ Nagaraju,
Aged 45 years,
4(b) Smt.Sowmya,
D/o late Raju @ Nagaraju,
Aged 25 years,
4(c) Sri.Sumanth,
S/o late Raju @ Nagaraju,
Aged 20 years,
4(d) Sujith,
S/o late Raju @ Nagaraju,
Aged 24 years,
6 O.S.2488/1981
Defendants 4(a) to (d) are
R/at No. 15,
Sanjeevappa lane,
Kavene Revanna Shetty Pete,
Avenue road cross,
Bangalore - 560 002.
5. Sri.Umashankar,
Aged 20 years,
S/o Narayanaswamappa,
6. Smt.Rangamma,
W/o late Sri.Narayanaswamappa,
since dead rep. By her legal
representatives who are defendant
No. 1 to 5
7. Smt.Rajamma,
W/o late Samapanna and
mother of plaintiff
since dead rep. by her legal
representatives
who are the plaintiffs herein
8. Smt.Sushilamma,
Aged 46 years,
D/o Sri. Sampanna and sister of
plaintiff
S/o Smt.Rajamma the defendant
No. 7 above named.
Since dead by her legal
7 O.S.2488/1981
representatives who are the
plaintiffs herein.
(LR of D1 By Sri.LSR, Advocate
LR of D3(a)(b) By Sri.TMC,
Advocate, LR of D2(a) to (d), LR of
D6(a)(b) - Absent, LR of D4 - LSR,
LR of D1(a) & (c)
Sri.M.V.Vedachala, Advocate,
LR of D1(b), (a) to (d)
by Sri.M.V.Vedachala, Advocate)
* * * * *
Date of institution of suit : 28.01.1981
Nature of suit : Partition
Date of commencement
of recording of evidence : 30.05.1994
Date on which the judgment
was pronounced : 06.11.2020
Duration of the suit :Year/s Month/s Day/s
40 09 08
8 O.S.2488/1981
JUDGMENT
1. This is a suit filed by the plaintiff Chikkanna against defendant No. 1 to 6 to declare that the plaintiff and defendant No. 7 and 8 relief entitled to half share in the suit schedule properties and praying for partition of their joint half share and for separate possession and to hold enquiry for mesne profit.
2. In this suit the plaintiff Chikkanna died. Hence his legal representatives plaintiff No. 1(a) to 1(e) are brought on record. The defendant No. 1 Beerappa, defendant No. 2 Ramakrishna, defendant No. 3 Gopi, defendant No. 4 Raju @ Nagaraju, defendant No. 6 Rangamma are all dead. Hence their legal heirs are also brought on record. Defendant No. 7 mother of plaintiff Chikkanna and defendant No. 8 Susheelamma, 9 O.S.2488/1981 sister of Chikkanna also died and the plaintiffs are their legal heirs.
3. In this suit there are two items of the properties mentioned in the plaint schedule. They are (1) House property bearing No. 15 (2) House property bearing No.
20. These properties are situated at Sanjeevappa lane, Kavane Revanna Shetty Pete, Avenue road cross, Bangalore. This suit was decreed by this court as per the judgment and decree dated 16.3.2002 by declaring that the plaintiff and defendant No. 7 and 8 together are entitled for half share in the suit schedule properties. Their claim for mesne profit was rejected. Aggrieved by the judgment and decree passed by this court the defendant No. 1, 4, 5 and 6 have preferred RFA No. 686/2002 and defendant No. 3 had filed RFA No. 810/2002 before the Hon'ble High Court of 10 O.S.2488/1981 Karnataka. The Hon'ble High Court of Karnataka passed common judgment in RFA No. 686/2002 c/w RFA No.810/2002 and pleased to partly allowed the appeal as per judgment dated 24.1.2013 confirming the judgment and decree passed by this court in so far as suit schedule item No. 1 is concerned and set aside the judgment and decree in respect of suit schedule item No. 2 is concerned and the matter is remitted to this court for consideration of additional evidence and other evidence, if any, to be lead by the parties in so far as the suit schedule item No. 2 is concerned. It is also made it clear that the order passed by the Hon'ble High Court of Karnataka remanding the matter should be understood that in so far as suit item No. 1 is concerned, parties have agreed to divide the property as ordered and that should not be construed as either 11 O.S.2488/1981 legatee is agreeing or not agreeing in the Will. The Will shall be decided on its merit without being influenced by the arrangement made by the parties in so far as suit schedule item No. 1 is concerned.
4. Thereby in so far as suit schedule item No. 1 is concerned the judgment and decree passed by this court as per judgment dated 16.3.2002 is confirmed and attained finality. This suit remitted to this court for consideration of additional evidence and other evidence, if any, to be lead by the parties in so far as suit schedule item No. 2 is concerned. Hence this court in this judgment confined only to the suit schedule item No. 2 property.
5. The plaint averments briefly stated as follows: 12 O.S.2488/1981
One Sri.Beerappa and his wife Kempamma had two sons (1) Sampanna (2) Narayana Swamappa. The defendant No. 7 Rajamma is the wife of Sampanna. The plaintiff Chikkanna and 8 th defendant Smt.Susheelamma are the children of late Sampanna and 7 th defendant Smt.Rajamma. Sri.Narayana Swamappa had two wives. The defendant No. 1 to 3 are the sons of late Narayana Swamappa through his wife Smt. Kamalamma. The defendant No. 4 and 5 are the sons of late Narayana Swamappa through his 2 nd wife defendant No. 6 Rangamma. Sampanna died in the year 1935. Beerappa died in the year 1933. Narayana Swamappa died in the year 1967. Kempamma W/o Beerappa died in the year 1973. The suit schedule property held by Kempamma is the ancestral and joint family property of plaintiff and 13 O.S.2488/1981 defendants who are in possession and enjoyment of the suit schedule property. The plaintiff had filed suit in O.S.No.422/1964 on the file of the additional II Munsiff, Bangalore claiming ¼ share in the joint family properties. The present suit schedule property item No. 1 was one of the schedule items in that suit. The said suit was decreed against the defendants in respect of item No. 2 to 4 is concerned. The claim of the plaintiff in respect of item No. 1 has been dismissed. Against the judgment and decree in O.S.No.422/1964, the plaintiff preferred an appeal in R.A.No. 13/1976 on the file of Civil Judge, Bangalore District in respect of item No. 1, i.e., property bearing No. 15 and 20 of Sanjeevappa lane. The Appellate Court while discussing the appeal filed by the plaintiff observed in the judgment as "Now the legal position appears to be 14 O.S.2488/1981 defendant No. 7 Kempamma has acquired ownership over item No. 1 by her possession for a period of more than 12 years. The plaintiff being the grand son of defendant No. 7 also has got share in this property but he will get his share only after the death of defendant No. 7 because the property item No. 1 has become self acquired property of defendant No. 7............." Kempamma the defendant No. 7 in O.S.No.422/1964 was the respondent No. 7 in R.A.No.13/1967. Kempanna died in the year 1973. Hence the plaintiff is entitled to get his share having succeeded to the suit property along with the defendants. After the death of Kempamma the defendant No. 1 Beerappa S/o late Narayana Swamappa being the Manager of joint family managing the suit schedule property on behalf of the joint family. After the death of Kempamma the 15 O.S.2488/1981 plaintiff and defendant No. 7 and 8 together have demanded the defendant No. 1 to 6 for allotment of their respective share in the suit schedule properties. The defendant No. 1 to 6 were postponing to comply with the demand of the plaintiff to partition the suit schedule properties. The plaintiff has issued legal notice dated 28.1.1981 demanding the share in the suit schedule properties. The defendant No. 1 to 6 have issued an evasive reply denying the plaintiff's share in the suit schedule property. Hence on these grounds the plaintiff prayed to decree the suit.
6. After this suit remitted back from the Hon'ble High Court of Karnataka the legal heirs of the plaintiff carried out amendment in the plaint and inserted para 11(a) to 11(i). In para 11(a) and 11(b) they contended regarding subsequent events such as filing RFA No. 16 O.S.2488/1981 686/2002 and RFA No. 810/2010 and remand orders passed by the Hon'ble High Court of Karnataka. In para 11(c) to 11(i) the plaintiffs have taken contention that the alleged Will purported to have been executed seems to be forged and concocted and fabricated one. They have denied the execution of any such Will executed by Kempamma. It is contended that the alleged Will seems to have been prepared at the instance of Narayana Swamappa solely in order to deprive the legitimate property right of legal representatives of Sampanna who have been engaged in a prolonged family dispute right from the year 1951. It is submitted that even otherwise at the time when the alleged Will is purported to have taken shape the said Kempamma passed away in the year 1973 after prolonged illness and Kempamma during her life time 17 O.S.2488/1981 had been paralyzed, bed ridden and she was not in a position to take calculative decisive measures as per physical and mental condition did not permit her to do so right from the year 1955. It is also contended that one more strong circumstances which falsify the theory of the alleged Will is that subsequent to the alleged Will Narayana Swamappa has created purported agreement dated 27.7.1963. If at all it was the intention of Kempamma to bequeath the property in favour of Narayana Swamappa there was absolutely no reason for the mother to execute the agreement of sale dated 27.7.1963 in favour of Narayana Swamappa. As such the said agreement relied by Narayana Swamappa itself destroys the theory of the Will set up by them. It is also contended that it is seen that defendant No. 2 had filed a suit against defendant No. 4, 5 and 6 for 18 O.S.2488/1981 the relief of declaration in O.S.No.162/1983 claiming that Kempamma had executed a registered gift deed pertaining to property bearing No. 15 and 20 under gift deed dated 10.12.1965 and 26.10.1972. It is submitted that ultimately the purported gift deed was held to be not proved and hence a void document and the suit in O.S.No.162/1983 came to be dismissed. It is contended that viewed from any angle the Will in question is a manufactured document and the same does not bind the right, title and interest of the plaintiffs over the suit schedule properties. Hence on these grounds the plaintiffs prayed to decree this suit.
7. The defendant No. 1, defendant No. 2 and defendant No. 3 who engaged their counsel filed their written statement. The defendant No. 1 to defendant No. 3 filed their written statement separately. The 19 O.S.2488/1981 defendant No. 4 to 6 who engaged their counsel filed their common written statement.
8. The written statement filed by the 1 st defendant briefly stated as follows:
It is admitted that Narayana Swamappa died in the year 1967. It is contended that the suit schedule properties are not the joint family properties. It is contended that the suit schedule properties are exclusive properties of defendant No. 1 to 6. Filing of suit in O.S.No.422/1964, appeal in R.A.No.13/1967 are all admitted. It is contended that the plaintiff and defendant No. 7 and 8 are not entitled to any share in the suit schedule properties. The 1 st defendant is not the manager of joint Hindu family. The plaintiff has not demanded the partition as contended by him. 20 O.S.2488/1981 Notice issued by the plaintiff has been suitably replied. There is no cause of action to file this suit. The defendant No. 1 to 3 are residing separately in the suit schedule item No. 1. Defendant No.4 to 6 are together residing in suit schedule item No. 2. Defendant No. 1 to 6 are in adverse possession and exercising ownership right over the suit schedule properties. The plaintiffs right in the suit schedule properties if any has been extinguished by the reason of adverse possession of the defendants. The plaintiff is residing separately for more than 25 years is not the member of joint family. The suit is barred by limitation. The plaintiff is not entitled for partition and mesne profit. Hence on these grounds the 1 st defendant prayed for dismissal of the suit.21 O.S.2488/1981
9. The original written statement filed by defendant No. 2, since the suit of the year 1981 the written statement of defendant No. 2 is torn condition. The learned counsel for the legal representatives of defendant No. 4 filed memo on 19.2.2020 and furnished copy of written statement filed by the 2 nd defendant which was taken out from the paper book filed by the defendants in RFA No. 686/2002. The contents of written statement of defendant No. 2 briefly stated as follows:
It is contended that the suit properties were self acquired properties of late Kempamma and she had every legal right to dispose of the same as she desired. The relationship between the parties not disputed. Filing of the suit in O.S.No.422/1964 admitted. It is contended that the suit is barred by resjudicata. The 22 O.S.2488/1981 contention of the plaintiff that he is entitled for share in the property as legal heir is denied as false. The property bearing No. 20, old No. 63 was purchased by Kempamma under a registered sale deed dated 27.10.1926. The suit schedule item No. 2 had been purchased by Kempamma out of her own funds. Thus she became the absolute owner in possession and enjoyment of suit schedule item No. 2. Kempamma gifted the suit schedule item No. 2 in favour of 2 nd defendant as per gift deed dated 10.12.1965 and 26.10.1976. Thus this defendant has become the absolute owner of suit schedule item No. 2 property.
This defendant has already initiated legal proceedings against the defendant No. 4 to 6 for possession and declaration in O.S.No.162/1993 now pending on the file of CCH-4, Bangalore. The suit schedule item No. 1 23 O.S.2488/1981 given to this defendant by Smt.Kempamma through a registered Will. This defendant is residing in the said premises as absolute owner thereof. Hence on these grounds the defendant No. 2 prayed for dismissal of the suit.
10. The written statement filed by the 3 rd defendant briefly stated as follows:
The relationship between the parties is admitted. It is contended that the defendant No. 1 to 3 are living in 1 st schedule and defendant No. 4 to 6 are in possession of 2 nd schedule property. The defendant No. 1 to 3 are living in suit schedule item No. 1 house since from 1964. They have perfected their title to the said house. The defendant No. 4 to 6 have been residing in the suit schedule item No. 2. The decree 24 O.S.2488/1981 in O.S.No.422/1964 has no application whatsoever for possessory title of these defendants. The plaintiff is not entitled to any share by reason of the death of Kempamma. The plaintiff cannot derive any right in the suit properties by virtue of the previous proceedings. The suit is barred by limitation. The defendant No. 3 has perfected his title along with defendant No. 1 and 2. Hence on these grounds defendant No. 3 prayed for dismissal of the suit.
11. In this suit after remand the legal representatives of defendant No. 2 filed additional written statement by contending that the entire lis between the parties to the suit has lost its direction. The plaintiffs have accepted that acquisition to the suit property is in accordance with Hindu Succession Act with respect to item No. 1 in the suit schedule property and with 25 O.S.2488/1981 respect to item No. 2 between the same parties is entering into the issue of testamentary transfers. Thus the issue originally framed and the present nature of suit has changed. In the present status of the suit it is necessary to examine all the testamentaries made by Rangamma and also the scope of succession under the Hindu Succession Act.
12. The written statement filed by the defendant No. 4 to 6 briefly stated as follows:
The relationship between the parties is admitted. It is contended that the plaint schedule properties were never treated as joint family properties. The plaintiff is not in actual or constructive possession of the plaint schedule properties All the parties are living separately since several years. The relationship 26 O.S.2488/1981 between the parties is not that of joint family members. The filing of earlier suits in O.S.No.422/1964 is admitted. It is contended that the said suit had been filed in the Court of Subordinate Judge, Bangalore in O.S.No.98/1958 on 5.2.1958. The same was transferred to II Munciff Court in 1964 and was numbered as O.S.No.422/1964. That suit was decreed in respect of agricultural lands and dismissed with regard to house property on 16.7.1965. The final decree was passed on 12.9.1973. The said proceedings became final and conclusive. The 1 st item involved in the suit of 1958 was only one house property bearing old No. 65, new No. 67 which is corresponding to item No. 1 of present suit. Item No. 2 that is property No. 20 was never the subject matter of earlier suit.
R.A.No.13/1976 came to be dismissed and the decree 27 O.S.2488/1981 passed in O.S.No.422/1964 became final. Any observations made in R.A.No.13/1967 does not confer any right over the plaint schedule properties in favour of the plaintiff. Such observations are obiter in nature more particularly when Kempamma's title over the said properties were not decided. This suit in respect of item No. 1 is barred by the principles of resjudicata. As regard this suit item No. 2 is concerned the same being not the subject matter of O.S.No.422/1964. This suit is barred by the principles recognized in Order 2 Rule 2 of C.P.C. The plaintiff has voluntarily given up his claims, if any over item No. 2 long back and he cannot re-agitate the same in these proceedings. The defendant No. 4 to 6 have been living in item No. 2 in their own right to the exclusion of plaintiff openly and hostily. They have perfected their title to the said 28 O.S.2488/1981 properties. The suit of the plaintiff is barred by limitation. It is admitted that Kempamma died in the year 1973. It is contended that before her death the rights if any she had in the properties had been transferred to and vested in Narayana Swamappa by virtue of an agreement of sale dated 27.7.1963. Narayana Swamappa had been put in possession thereof and thereafter enjoyed the properties in his own right as the owner in pursuance to the part performance of the said agreement of sale. The sale deed as such was not executable by Kempamma as one of the items was subject to the litigation in O.S.No.422/1964. The litigation was terminated long after the agreement and Kempamma died on 1.9.1973 and the final decree was drawn on 12.9.1973. As such a formal sale deed could not be executed by Kempamma. All these facts are 29 O.S.2488/1981 well within the knowledge of the plaintiff. The sale otherwise is complete. These defendants have been enjoying the properties in their own rights to the exclusion of Kempamma and later Narayana Swamy and have perfected their rights over the same by adverse possession. The plaintiff and defendant No. 7 and 8 are not the legal heirs of late Kempamma. The plaintiff is not in joint possession. The court fee paid is not sufficient. After the death of Narayana Swamy these defendants are in possession and enjoyment of the properties in their own right. Defendant No. 2 has filed suit in O.S.No.1450/1969 (new No. 114/80) in CCH-10. Defendant No. 2 also filed suit in O.S.No.162/1983 on the file of CCH-4 for partition. This suit filed by the plaintiff at the instance of defendant No. 2 Ramakrishna. Beerappa, Ramakrishna 30 O.S.2488/1981 and Gopal Krishna partitioned all the movable properties around 1964 and began to live separately. Narayana Swamy died in the year 1967 and since then the 4 th defendant is managing the properties of late Narayana Swamy. This is also the mandate of Narayanaswamy as per registered Will of 2.1.1967. There is or was at any rate any joint family tie between the plaintiff and Narayana Swamy and his children. The plaintiff is not a member of joint family. The plaintiff is not entitled for any share in the suit properties. Hence on these grounds the defendant No. 4 to 6 prayed for the dismissal of the suit.
13. After the death of defendant No. 4 his legal heirs defendant No. 4(a) to (d) have filed additional written statement by contending that the right, title and 31 O.S.2488/1981 interest of these defendants over schedule 2 of suit property are conclusively decided by the Hon'ble High Court of Karnataka and upheld by the Hon'ble Supreme Court of India. The plaintiff was filed the suit in O.S.No.422/1964 seeking partition in item No. 1 of the present suit along with other agricultural properties. At no point of time the item No. 2 of the present suit was subject matter of earlier suit in O.S.No.422/1964. The item No. 2 of suit property was in existence even as on the date of filing of the earlier suit. It was well within the knowledge of the plaintiff that item No. 2 of the property is not joint family property. Since item No. 2 is not the subject matter of O.S.No.422/1964 the claim made by the plaintiff in this suit is barred by the principles recognized under Order 2 Rule 2 of C.P.C. as the plaintiff has voluntarily 32 O.S.2488/1981 given up his claim if any over item No. 2 long back. These defendants have been living in item No. 2 in their own right to the exclusion of the plaintiff and perfected their title. The claim in respect of item No. 1 having been confirmed by the Hon'ble High Court of Karnataka in RFA No.686/2002, as such the question of re-agitating or reference in respect of item No. 1 is not called for. The suit of the plaintiff is barred by time. Hence on these grounds the defendant No. 4(a) to (d) prayed for dismissal of the suit.
14. Based on the pleadings of the parties in this suit the issues were framed long back in the year 1983 itself. After remand of this suit the additional issue No. 1 was framed by my learned Predecessor-in-office but the said additional issue No. 1 re-casted as per 33 O.S.2488/1981 order dated 29.9.2020. The issues and additional issues framed in this suit are as follows:
ISSUES (1)Whether the suit properties are the joint properties or joint family properties ?
(2)Whether the plaintiff is in joint possession of the suit properties ? (3)Whether suit schedule No.2 property was subject matter of suit O.S.No.422/64 ?
(4)Whether judgment and decree in O.S.No.422/64 in respect of S.No.1 suit schedule property of that suit is not binding on these defendants ?
(5)Whether the suit of plaintiff for partition of suit schedule property 34 O.S.2488/1981 item No.2 as joint family property is barred by the judgment and decree in O.S.No.422/64?
(6)Whether defendant No.1 and 3 have acquired title to the suit properties by adverse possession ?
(7)Whether deceased Kempamma has
gifted the suit schedule item No.2
property in favour of defendant
No.2 under the gift deeds dated
10.12.65 and 26.10.72 ?
(8)Whether deceased Kempamma has
bequeathed the suit schedule
property item No.1 by her
registered Will deed ?
(9)Whether deceased Kempamma had
entered into agreement of sale
dated 27.7.1963 in favour of
Narayanswamy in respect of suit
schedule properties ?
35 O.S.2488/1981
(10)If so, whether the purchaser was
put in possession in part
performance of agreement of sale ?
10(a) Whether plaintiff and defendant No.7 & 8 are entitled for any share in the suit properties ?
10(b) If so, what are the shares of the parties and what are the properties liable for partition?
(11)Whether the suit is properly valued?
(12)For what relief the parties are entitled ?
Additional Issue dated 20.2.2020:
(1) Whether the Will dated 25.5.1958 is a concocted and fabricated document ?
Recasted Issue dated 29.9.2020:
36 O.S.2488/1981
(1) Whether the Will dated 25.5.1958 is proved in accordance with law?
Recasted Issue No.6: In this suit this court of the opinion that it is necessary to recast issue No. 6 casting burden on defendant No. 4 to 6 also. Hence the issue No. 6 recasted as (6). Whether the defendant No. 1, 3 and 4 to 6 have acquired title to the suit properties by adverse possession. Since in this suit both the parties have lead their evidence this court of the view that there is no necessity to post the case again for evidence and available material is sufficient to give finding on this issue.
15. In this suit prior to remanding the matter this court was recorded the evidence. At that stage during the trial the plaintiff examined himself as PW1 and the 37 O.S.2488/1981 documents Ex.P1 to Ex.P11 were marked on the side of plaintiff. After remand the plaintiff No. 1(d) legal heir of the deceased plaintiff is examined as PW2.
16. Prior to remand the original defendant No. 4 examined as DW1 and the document Ex.D1 and Ex.D2 were marked. Defendant No. 1 was examined as DW2 and document Ex.D3 was marked. After remand opportunity was given to lead further evidence. Defendant No. 4(d) examined as DW3 and document Ex.D4 to Ex.D9 are marked through him. Defendant No. 3(a) examined as DW4. One witness on the side of the defendants examined as DW5. In all on the side of plaintiff the document Ex.P1 to Ex.P11 and on the side of the defendant No. 1 to 6 the document Ex.D1 to Ex.D9 are marked in this suit.
38 O.S.2488/1981
17. I have heard the arguments of the learned counsel for the plaintiff and defendants. The learned counsel for the plaintiff, the learned counsel for the legal representatives of defendant No. 4 have filed their written arguments. The learned counsel for the legal representatives of defendant No. 1 and the learned counsel for the legal representatives of defendant No. 2 also filed their written arguments. In this suit the learned counsel for the legal representatives of defendant No. 4 filed memo on 6.10.2020 by stating that re-casted issue is no longer surviving for consideration for the reasons stated in the memo.
18. I have perused the entire records.
39 O.S.2488/1981
19. Since this suit is remitted back to this court by the Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w RFA No. 810/2002 only in respect of suit schedule item No. 2 is concerned, hence giving detailed finding regarding the issues framed regarding suit schedule item No. 1 does not arise. This court gives findings on the issues only with regarding to suit schedule item No. 2.
20.. My findings to the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Issue No.4 : Does not survive
for consideration
Issue No.5 : In the Negative
Recasted Issue No.6 : In the Negative
Issue No.7 : In the Negative
40 O.S.2488/1981
Issue No.8 : Does not survive
for consideration
Issue No.9 : In the Negative
Issue No.10 : In the Negative
Issue No.10(a) : Entitled for ½ share in the
suit schedule property
Issue No.10(b) : ½ share in the
suit schedule property
Issue No.11 : In the Negative
Recasted Addl. Issue No.1: In the Negative Issue No.12 : As per final order for the following:
REASONS
21. Additional Issue No.1: Admittedly the appeal filed by defendant No. 1, 4, 5 and 6 in RFA No. 686/2002 and appeal filed by defendant No. 3 in RFA No.810/2002 partly allowed and judgment and decree dated 16.3.2002 passed by this court so far as the suit schedule item No. 1 is concerned is confirmed and the 41 O.S.2488/1981 matter remitted to this court for consideration of additional evidence and other evidence, if any, to be lead by the parties in so far as the suit schedule item No. 2 is concerned. On perusal of the judgment passed by the Hon'ble High Court of Karnataka in RFA No.686/2002 c/w RFA No. 810/2002, it would go to show that as the appellants moved I.A.No.4/2005 under Order 41 Rule 27 of C.P.C. and produced the documents including the Will executed by Kempamma. In order to consider the additional evidence the matter remitted back to this court for consideration of additional evidence and other evidence if any to be lead by the parties in so far as the suit schedule item No. 2 is concerned. Para No. 12 of the judgment of Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w RFA No.810/2002 is reads as follows: 42 O.S.2488/1981
"(12) However now in appeal - RFA No. 686/2002, application is filed for production of additional documents including the registered Will stated to have been executed by Kempamma on
22.5.1958. It cannot be disputed that Kempamma can dispose of her property by a testamentary document as she was declared to be the absolute owner of suit schedule item No. 1 and 2.
However mere production of certified copy or the original of the Will stated to have been executed by Kempamma by itself, is not sufficient to prove that defendant No. 1 to 6 succeeded under the Will. It requires to be proved in accordance with law. At the same time, the said document cannot be ignored only on the ground that the same is produced at a later stage as it would affect the rights of the parties. 43 O.S.2488/1981
When the suit is for partition and separate possession in respect of the properties of Kempamma, Kempamma's last desire is also required to be considered. If she has disposed of her property by a testamentary document and testamentary document is proved it will change the line of Succession."
22. It is also observed in para No. 13 of the judgment of Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w 810/2002 in para No. 13 concluding para the Hon'ble High Court of Karnataka held that ;
"(13) It is not disputed by the learned counsel appearing for defendant No. 1, 4 and 6 and also defendant No. 3 that the Will is only in respect of suit schedule item No. 2. Thus in respect of suit schedule item No. 1 there is no dispute. It is also not in dispute that 44 O.S.2488/1981 Kempamma died intestate in so far as suit schedule item No. 1 is concerned.
The normal rule of Succession under section 15 of the Hindu Succession Act, Kempamma had only two sons. Hence both the sons will get equal share in the suit schedule item No.1. Hence the appeals requires to be partly allowed"
23. And accordingly the Hon'ble High Court of Karnataka passed an order partly allowing the appeal and judgment and decree passed by this court in so far as the suit schedule item No. 1 is concerned is confirmed and the matter is remitted to this court for consideration of additional evidence and other evidence if any to be lead by the parties in so far as the suit schedule item No. 2 is concerned.
45 O.S.2488/1981
24. After the remand this court has given opportunity to the parties to lead further evidence. Even though the plaintiffs have moved I.A. under Order 6 Rule 17 C.P.C. and amended the plaint by inserting para No. 11(a) to 11(i) with respect to alleged Will dated 25.5.1958 by contending that the Will set up by the defendants is concocted, fabricated and manufacturing document only in order to deprive the lawful share of the plaintiffs, but the defendants after remand of the matter have not taken any pain to amend their written statement. In order to lead additional evidence with regarding to the alleged Will dated 22.5.1958 during the course of further evidence defendant No. 4(d) who is examined as DW3 in his examination-in-chief affidavit at para 8 has deposed that "the 2 nd schedule property was purchased by Kempamma vide registered 46 O.S.2488/1981 sale deed dated 27.10.1926 from one Venkatamma duly registered at the office of Sub-Registrar, Bangalore. From the date of purchase of the property the said Kempamma was in possession and enjoyment of schedule property as an absolute owner thereof. Kempamma executed registered Will dated 25.5.1958 in respect of her properties in favour of her son Narayanaswamappa". The document Ex.D4 alleged Will marked through DW3 subject to objection. It is pertinent to note that DW3 who is the legal representative of deceased defendant No. 4 without laying foundation, i.e., without carrying out the amendment in the written statement in his deposition has taken contention that Kempamma who was the absolute owner of suit schedule properties executed registered Will dated 25.5.1958. The very important 47 O.S.2488/1981 point to be noted in this suit is that even though DW3 in his examination-in-chief has deposed that Kempamma executed registered Will dated 25.5.1958 in respect of suit schedule properties but in his cross- examination DW3 has deposed that the suit schedule item No. 2 is not the subject matter of the document Ex.D4 Will. In page No. 13 of his cross-examination he deposed as "ನ.ಡ.4 ವಲಲ ನಲಲ ದದವದ 2 ನನನ ಸಸತತತ ಇರತವವದಲಲ ಎಎದರನ ನಜ ." DW3 himself admitted that the suit schedule item No. 2 is not subject matter of this document Ex.D4 Will. The learned counsel for the plaintiffs while addressing the oral arguments as well as in the written arguments submitted that much time of this court is wasted on the Will and as an anti- climax at the fag end of the trial the learned counsel for the legal representatives of defendant No. 4 filed a 48 O.S.2488/1981 memo that no reliance can be placed on the Will. It is submitted that this is nothing but abuse of process of the court and the defendant No. 1, 3, 4 to 6 are required to be mulcted with exemplary and punitive cost.
25. In this suit when the suit posted for arguments the learned counsel for the legal representatives of 4 th defendant filed memo on 6.10.2020 which reads as follows:
The legal representatives of the 4 th defendant submits as under:
These defendants submit that the question of considering the Will does not arise for the following reasons:
(1) Exhibit D4, the registered Will
dated 25.5.1958 executed by
Kempamma in favour of
49 O.S.2488/1981
Narayanaswamappa and registered in
the year 1958, the beneficiary under
the Will died in the year 17.6.1967
and the testator died on 3.8.1973.
Hence the Will did not come into
force. To this effect a reference has
been made by the Hon'ble High Court
of Karnataka at para No. 18 of
judgment vide Ex.D7 in RFA No.
696/1986. In fact the testator as
discussed at para No. 3 of Ex.D7
alienated the II schedule property in favour of II defendant in this suit by way of registered gift deed dated 10.12.1965. Thus the Will stood cancelled.
(2) It is submitted that when the beneficiary died prior to the death of executor of the Will, the Will would lapse and would automatically become infructuous and as such the question of 50 O.S.2488/1981 proving the lapsed Will does not arise for consideration.
(3) A clarification was sought by this Hon'ble Court with regard to observation made by the Hon'ble High
Court of Karnataka with regard to Will to the effect that the Will shall be decided on its merits without being influenced by any arrangement made by the parties in so far as the suit schedule item No. 1 is concerned. It is to be noted that under the Indian Succession Act, a Will is defined as;
"A Will is the legal declaration of the intention of the testator with respect to his property which he desires to be carried out after his death"
Section 105 of Indian Succession Act reads as under:
51 O.S.2488/1981
"Section 105: In what legacy lapses; (i) If the legacy does not survive the testator, the legacy cannot take effect but shall lapse and form part of residue of the testator's property, unless it appears by the Will that the testator intended that it should go to some other persons.
(ii) In order to entitle the representative of the legatee to receive the legacy it must be proved that he survived the testator."
(4) The illustration to the said section makes it clear that on the death of the legatee the Will cannot take effect but shall lapse and form part of the residue of the testator's property.
In view of the above facts on record, it is submitted that the issue 52 O.S.2488/1981 re-casted on the application of the plaintiffs no longer survives for consideration in the interest of justice and equity"
26. By filing this memo dated 6.10.2020 the learned counsel for the legal representatives of 4 th defendant would submit that the legal heir of defendant No. 4 not relying on the document Ex.D4 Will. He argued that the legal heirs of defendant No. 4 relying on the document Ex.D8 sale agreement Ex.D5 consideration receipt and Ex.D7 certified copy of judgment in RFA No. 696/1986 and other document to prove to the sale agreement dated 27.7.1963 executed by Kempamma in favour of Narayanaswamy. This court will discuss regarding these contentions of legal representatives of defendant No. 4 at the time of answering issue No. 9 and 10 and other issues framed in this suit. Now so 53 O.S.2488/1981 far as the legal representatives of defendant No. 4 is concerned since they are not pressing the document Ex.D4 alleged Will dated 25.5.1958 it has to be held that the legal representatives of defendant No. 4 have failed to prove the Will dated 25.5.1958.
27. The learned counsel for the legal representatives of defendant No. 1 in his written arguments submitted that the Hon'ble High Court of Karnataka in the judgment in RFA No. 686/2002 and RFA No. 810/2002 in its judgment dated 24.1.2013 has concluded that Kempamma became the exclusive owner of schedule item No. 1 and 2 of the plaint schedule properties and in the absence of any testamentary document late Narayanaswamy and Sampanna will succeed to her estate and each will get half share. In his written arguments it is also submitted that on remand, Will 54 O.S.2488/1981 dated 22.5.1958 (earlier dated 25.5.1958) has been produced and marked in the evidence. The will itself is more than 61 years old hence under section 90 of the Indian Evidence Act there is a presumption about the genuineness of the Will. It is further argued that Kempamma died leaving behind the Will in respect of item No. 2 of the suit schedule property in favour of Narayanaswamy. Thus Narayanaswamappa had become the absolute owner and in possession of item No. 2 schedule property by virtue of Will.
28. The learned counsel for the legal heirs of defendant No. 2 who has filed his written arguments also submitted in the written arguments that the Will executed by Kempamma is produced before this court and marked and proved. The plaintiffs have not produced any evidence to the contrary or disproved the 55 O.S.2488/1981 Will. It is argued that item No. 2 is bequeathed in favour of Narayanaswamappa. Thus the legal representatives of defendant No. 2 are entitled for 1/5th share in item No. 2.
29. In this suit even though the learned counsel for the legal representatives of defendant No. 4 by filing the memo has taken contention that the question of considering the Will does not arise but the legal representatives of defendant No. 1 and 2 have taken contention that the Will executed by Kempamma is proved. It is important to note that the defendant No. 1, defendant No. 3, defendant No. 2 in their written statement have not taken any such contention that Kempamma executed the Will in favour of her son Narayanaswamappa. The defendant No. 3(a) who examined as DW4 in his examination-in-chief affidavit 56 O.S.2488/1981 has deposed that during the life time of Kempamma she executed her last Will and testament dated 25.5.1958 and that Will is also duly registered. Under that Will item No. 2 of the plaint schedule properties is bequeathed by Kempamma exclusively in favour of her son Narayanaswamappa. She has excluded her son Sampanna from bequest and the reasons for the same are mentioned in the Will itself. DW4 without there being any pleadings in the written statement in his examination-in-chief affidavit has taken contention that Kempamma executed her last Will dated 25.5.1958 in favour of her son Narayanaswamy. During the course of cross-examination by the learned counsel for the plaintiff, DW4 has deposed that she do not know which are all document produced in this suit. She has not seen the document Will executed by Kempamma. She 57 O.S.2488/1981 came to know about the Will through Kempamma. During the course of cross-examination by the learned counsel for the legal representatives of defendant No. 1 and 4 the document Ex.D4 and signature of Kempamma confronted to her then she admitted that Ex.D4(a) is the signature of Kempamma. During the course of further cross-examination by the learned counsel for the plaintiff DW4 has deposed that she was not seen either Kempamma signing on any document or putting her thumb impression on any document. She admitted the suggestion that she has seen Ex.D4 first time before this court. During the course of cross-examination by the learned counsel for the legal representatives of plaintiff No. 2 DW4 has deposed that she do not know the contents of the Will. On perusal of the oral evidence of DW4 one thing is very clear that at no 58 O.S.2488/1981 point of time she was seen Kempamma was signing or putting her thumb impression on any document. DW4 has deposed that she has seen the document Ex.D4 Will first time before this court. Under such circumstances no evidentiary value can be attached to the oral evidence of DW4 regarding the document Ex.D4.
30. DW5 is a witness in his examination-in-chief affidavit has deposed that he was closely acquainted with late Kempamma as well as her son late Narayanaswamy during his childhood. He has deposed that on several occasion he had interacted with Kempamma and Narayanaswamy and he acquainted with their signatures. He stated that though Kempamma was illiterate she used to sign her name in Kannada. Late Narayanaswamy was educated and he 59 O.S.2488/1981 used to sign in English. When the document Ex.D4 confronted to DW5 in his examination-in-chief he has identified the signature of Kempamma. Hence the same is marked at Ex.D4(a). During the course of cross-examination of DW5 by the learned counsel for the plaintiffs DW5 has deposed that he was not seen Kempamma signing any document. He has admitted the suggestion that he was not seen the signature of Kempamma. These admissions made by DW5 in his cross-examination unerringly points out that DW5 was not aware and acquainted with the signature of Kempamma.
31. The learned counsel for the plaintiffs relied upon the judgment of Hon'ble Supreme Court reported in (2009)3 SCC 687 in Bharpur Singh and others Vs. Shamsher Singh and submitted that in this decision the 60 O.S.2488/1981 Hon'ble Supreme Court held that section 90 of Evidence Act has no application for proof as Will. He also relied upon the judgment of Hon'ble High Court of Karnataka reported in ILR 2017 Kar 4254 in Durgappa, since dead by legal representatives Vs. Nagamma, since dead by legal representatives wherein also very same proposition of law laid down by the Hon'ble Supreme Court in Bharpur Singh and others case was relied on. The learned counsel for the legal representatives of the plaintiff have relied upon the judgment of Hon'ble High Court of Karnataka of Sri.J.T.Surappa and another Vs. Sri.Sachidanandendra Saraswathi Swamiji Public Transfer Trust reported in ILR 2008 Kar 2115 wherein at para No. 24 at page No. 2136 wherein it is held that the court has to tread careful path in the enquiry to be conducted with regard to Will. The said path 61 O.S.2488/1981 consists of five steps "panchapadi" the path of enquiry and steps to be traversed are as under:
(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness examined to prove the Will ?
(2) whether the natural heirs have been dis-inheritted ? If so what is the reason ?
(3) whether the testator was in a sound state of mind at the time of executing the Will ?
(4) Whether any suspicious
circumstances exists surrounding the
execution of the Will ?
(5) whether the Will has been
executed in accordance with section 63 62 O.S.2488/1981 of the Indian Succession Act, 1925 r/w section 68 of the Indian Evidence Act.
32. Relying upon the principles laid down by the Hon'ble Supreme Court and Hon'ble High Court of Karnataka in the above said decisions it has to be examined whether the document Ex.D4 is proved in accordance with law. In the present suit first of all there is no pleading in their written statement on the side of the defendants that Smt.Kempamma executed a Will dated 25.5.1958 in favour of Narayanawamappa @ Narayanaswamy. The defendants without laying foundation by way of pleading in written statement have lead their evidence and examined DW3 to DW5 who have deposed that Kempamma executed the Will in favour of her son Narayanaswamappa. Admittedly DW3 to DW5 are not the attesting witnesses to the 63 O.S.2488/1981 document Ex.D4. Even though the document Ex.D4 marked through DW3 he himself in his cross- examination stated that the suit schedule item No. 2 is not the subject matter of this document Ex.D4. Even though DW4 in her cross-examination by the learned counsel for the legal representatives of defendant No. 1 and 4 identified Ex.D4(a) by saying that it is the signature and thumb impression of Kempamma but during the course of cross-examination by the learned counsel for the plaintiff DW4 has deposed that at no point of time she was seen Kempamma signing or putting her thumb impression on any document. She has deposed that she has seen Ex.D4 first time before this court. She has not read the document Ex.D4 at any point of time. Since DW4 has not seen Kempamma signing any document the oral evidence of 64 O.S.2488/1981 DW4 is not sufficient to prove the document alleged Will as required under section 68 of Evidence Act. DW5 is only independent witness examined in this suit. Even though DW5 in his examination-in-chief deposed that the document Ex.D4(a) is the signature of Kempamma but during the course of his cross- examination by the learned counsel for the plaintiff DW5 has deposed that he was not seen Kempamma signing any document. DW5 has also deposed that he was not seen any signatures of Kempamma. The very admission given by DW5 in his cross-examination that he was not seen Kempamma signing the documents and he was not seen any signature of Kempamma is sufficient to hold that DW5 was not aware and not known about the signature of Kempamma. Thus the oral evidence of DW5 is also not helpful to the 65 O.S.2488/1981 defendants to prove the document Ex.D4. It is now settled principle of law is that the Will must be proved by examining any one of the attesting witness. If the attesting witnesses are not alive or found then it must be proved that the signature of the person executing the document is in the handwriting of that person. In the present suit first of all there is no pleadings on the side of the defendants with regarding to the document Ex.D4 Will. Secondly it is not made known to this court whether the attesting witnesses to the document Ex.D4 is alive or dead. DW3 and DW4 have not deposed anything about who are all attesting witnesses to the document Ex.D4. The Will is compulsory attestable document. Section 68 to 71 of Indian Evidence Act deals with proof of execution of document required by law to be attested. In the 66 O.S.2488/1981 present suit the defendants have failed to prove the document Ex.D4 by examining any one of the attesting witness or by examining the witness who can identify the signature of the person who executed the document Ex.D4. The learned counsel for the legal representatives of defendant No. 4 in his memo dated 6.10.2020 also mentioned observations made by the Hon'ble High Court of Karnataka in RFA No.696/1986, i.e., in Ex.D7. On perusal of Ex.D7 certified copy of the judgment passed in RFA No. 696/1986 it would go to show that deceased defendant No. 2 N.Ramakrishna has filed the suit in O.S.No.114/1980 against Rangamma, N.Nagaraj and N.Uma Shankar who are the defendants of this suit claiming his right over the suit property under the gift deed of the year 1965 executed by Kempamma. In that judgment Hon'ble High Court 67 O.S.2488/1981 of Karnataka also noted the written statement filed by Kempamma wherein when she has contended she is the absolute owner of the suit properties it is also noted in this judgment that Kempamma filed her written statement on 17.9.1970. If at all Kempamma was executed the Will in the year 1958 without mentioning about execution of the Will she would not have taken such contention in O.S.No.114/1980 (earlier numbered as O.S.No.1450/1968) that she is the absolute owner of the suit schedule properties. The very contention of the deceased defendant No. 2 in earlier suit in O.S.No. 114/1980 that Kempamma executed gift in favour of him pre-supposes that defendant No. 2 has never taken contention regarding the alleged Will of the year 1958. There is absolutely no evidence on the side of the defendants to show that Kempamma executed the 68 O.S.2488/1981 document Ex.D4 Will and bequeathed the suit schedule item No. 2 in favour of her son Narayanaswamy. Hence I answer additional issue No. 1 in the Negative.
33. Issue No. 3 and Issue No. 5: The defendants have taken contention that the suit of the plaintiff for partition of suit schedule property item No. 2 as joint family property is barred by the judgment and decree in O.S.No. 422/1964. Even though this issue is framed by this court prior to remand of this suit but after the remand though the parties have lead their evidence but during the course of arguments the learned counsel for the legal heirs of the defendants have not addressed any arguments on issue No. 5. On the side of the plaintiff the document Ex.P4 certified copy of the judgment in O.S.No.422/1964 is marked. Admittedly the suit in O.S.No.422/1964 there are totally 4 items of 69 O.S.2488/1981 the properties. Item No. 1 is the house property and item No. 2 to 4 are all agricultural lands. In that suit item No. 1 is the house bearing municipal No. 65 and 67 situated in Sanjeevappa street, Avenue road, Bangalore city. The learned counsel for the legal representatives of defendant No. 4 argued that the suit in O.S.No.422/1964 filed by the present plaintiff seeking partition and separate possession in respect of item No. 1 was dismissed by the Hon'ble court on the ground that the suit property is the self acquired property of late Kempamma. The learned counsel for the plaintiffs also submitted that it is the case of the plaintiff is that the suit in O.S.No. 422/1964 was decreed on 16.7.1965 with respect to item No. 2 to 4 of that suit is concerned and suit against item No. 1 70 O.S.2488/1981 property in O.S.No. 422/1964 is dismissed holding that it is the absolute property of Kempamma.
34. In this suit both the plaintiff as well as defendants have produced the certified copy of judgment in O.S.No.422/1964 which was marked at Ex.P4 / Ex.D3. On perusal of the certified copy of judgment in O.S.No. 422/1964, i.e., Ex.P4 - Ex.D3 it would go to show that the suit in respect of house property bearing municipal No. 65 and 67 situated at Sanjeevappa street, Avenue road, Bangalore city was dismissed. In the present suit the suit schedule item No. 1 is the house bearing No. 15 situated at Sanjeevappa lane and suit schedule No. 2 is the property bearing No. 20 situated at Sanjeevappa lane. Both plaintiffs and defendants have not produced any documents to show which property was re-numbered as 71 O.S.2488/1981 which house No. In the absence of any such document produced on both the sides as admitted by both the sides the suit item No. 1 was the subject matter of earlier suit in O.S.No. 422/1964. Since there is no document to show that item No. 2 of the present suit was also covered under O.S.No.422/1964 it has to be held that the suit schedule item No. 2 was not the subject matter of the earlier suit in O.S.No.422/1964. The plaintiff has filed this suit for the relief of partition and separate possession on the ground that after the death of Kempamma the plaintiff Chikkanna being the grand son of Kempamma who represents the branch of Kempamma's son Sampanna are entitled for share in the suit schedule properties. It is the contention of the plaintiff is that after the death of Kempamma the plaintiff and defendant No. 7 and 8 72 O.S.2488/1981 together got half share in the suit schedule property. According to the plaintiff the cause of action arose to file this suit after the death of Kempamma, when the plaintiff demanded his half share in the joint family property along with defendant No. 7 and 8 by issuing a notice dated 28.1.1981 to defendant No. 1 to 6 demanding partition. In this suit the plaintiffs have produced the document Ex.P6 copy of legal notice dated 28.1.1981 issued by the plaintiff Chikkanna and defendant Susheelamma. The defendant No. 1 to 6 and the legal heirs of the defendants admitted that the suit schedule property belongs to Kempamma. In the absence of any testamentary document after the death of Kempamma her sons and grand children succeed to her estate. No doubt in the earlier suit in O.S.No.422/1964 the claim of the plaintiff Chikkanna in 73 O.S.2488/1981 respect of item municipal No. 65 and 66 was rejected on the ground that house belongs to Smt.Kempamma. Merely because the plaintiff has not included the suit item No. 2 in O.S.No.422/1964 that cannot be debar the plaintiff to include that property in the present suit after the death of Kempamma. It is pertinent to note that the suit schedule item No. 1 is also belongs to Kempamma. The judgment and decree passed by this court in so far as the suit schedule item No. 1 is concerned is confirmed by the Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w RFA No. 810/2002. The suit schedule item No. 2 is also belongs to Kempamma. The non-inclusion of suit schedule item No. 2 of the present suit in earlier suit in O.S.No.422/1964 makes no difference because the earlier suit in O.S.No.422/1964 the claim of the 74 O.S.2488/1981 plaintiff in respect of item No. 1 was rejected on the ground that that property belongs to Kempamma. Admittedly the suit schedule item No. 2 is also belongs to Kempamma. Under such circumstances merely because the suit schedule item No. 2 was not included in O.S.No.422/1964 it does not debar the plaintiff to include in this suit. Order 2 Rule 2 has no bar to plaintiff to claim partition in suit schedule item No. 2, as he is claiming the partition in the suit schedule item No. 2 after the death of Kempamma. Hence I answer issue No.3 in the Affirmative and issue No. 5 in the Negative.
35. Issue No. 1, 2, 9, 10: These four issues are taken up together for discussion for the sake of convenience and in order to avoid repetition of facts and evidence.
75 O.S.2488/1981
36. It is the specific contention of the plaintiff is that the suit schedule properties are the joint properties or joint family properties of the plaintiff and defendants and the plaintiff is in joint possession of the suit schedule properties. But the defendant No. 4 to 6 have taken contention that deceased Kempamma had entered into agreement of sale dated 27.7.1963 in favour of Narayanaswamy in respect of suit schedule property and put him in possession of the suit schedule property in part performance of agreement of sale. In this suit except defendant No. 4 to 6 no other defendants, i.e., defendant No. 1 to 3 have claimed regarding the agreement of sale dated 27.7.1963. Hence this court need not go into deep with regarding to oral evidence and document produced by the 76 O.S.2488/1981 remaining defendants, so far as the alleged agreement dated 27.7.1963 is concerned.
37. Prior to remanding this suit as per the judgment passed by the Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w RFA No.810/2002 the defendant No. 4 to 6 have not produced any documents to show that Kempamma had entered into an agreement of sale dated 27.7.1963 in favour of Narayanaswamappa. The document Ex.D4 to Ex.D8, Ex.D4 Will, Ex.D5 consideration receipt, Ex.D6 Will, Ex.D8 sale agreement are all marked through DW3. After this suit was remanded back from the Hon'ble High Court of Karnataka in order to decide regarding suit schedule item No. 2. DW3 in his examination-in- chief deposed that in order to develop property Kempamma mortgaged her properties in favour of third 77 O.S.2488/1981 parties. Her son Narayanaswamy repaid the loans taken by Kempamma. Kempamma executed agreement of sale her properties in favour of Narayanaswamy vide an agreement dated 27.7.1963 wherein she agreed to sell house bearing old No. 67 (present No. 15) and house property bearing old No. 63/1 (present No. 20). He has deposed that Kempamma also executed a receipt for having received a sum of Rs.4,000/- from Narayanaswamappa and agreed to execute the sale deed in respect of properties bearing old No. 63 and other properties which corresponds to property present No.
20. He deposed that Narayanaswamappa died before formal sale deed can be executed in his favour. Narayanaswamappa executed a Will dated 2.1.1967 in respect of his properties in favour of his 2 nd wife Rangamma and sons Nagaraj and Umashankar. He has 78 O.S.2488/1981 deposed that 2 nd defendant had filed a suit in O.S.No.114/1980 for the relief of declaration, possession and redemption and for mesne profits. The said suit was based on the gift deed alleged to be executed by Kempamma. The trial court decreed the said suit. The appeal filed by the present defendant No. 4 to 6 in RFA No. 696/1986 was allowed by the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka clearly held that the claim of the 2 nd defendant over the suit schedule property does not survive for consideration, as he failed to prove issue No. 2. He has deposed that earlier suit in O.S.No.422/1964 was in respect of property bearing old No. 65 and present suit bearing No.67 which is re- numbered presently as 15. The properties bearing No. 63/1 which corresponds to present No. 20 as 79 O.S.2488/1981 independent subject matter of any litigation by any of the parties. The document Ex.D4 Will, Ex.D5 consideration receipt, Ex.D6 Will, Ex.D7 certified copy of the judgment in RFA No.696/1986, Ex.D8 sale agreement dated 27.7.1963. Ex.D9 certified copy of the plaint in O.S.No.422/1964 are all marked through DW3. This court has already given finding regarding the document Ex.D4 while discussing additional issue No. 1. The learned counsel for the legal representatives of defendant No. 4 vehemently argued that the document Ex.D1 certified copy of judgment and decree passed in O.S.No.1756/1954 would go to show that Kempamma who filed a suit against plaintiff Chikkanna and his brother seeking for eviction from the 2 nd item of the property, succeeded. He submitted that the document Ex.D2 is the delivery notice issued 80 O.S.2488/1981 by the court wherein the property occupied by the plaintiff was handed over to Kempamma as per order passed in O.S.No.561/1954. He argued that the document Ex.D5 consideration receipt dated 27.7.1963 and Ex.D8 sale agreement executed by Kempamma in favour of Narayanaswamy on 27.7.1963 were produced in O.S.No.114/1980 and in that judgment the court has given finding on the issues. Aggrieved by the judgment and decree in O.S.No.114/1980 the defendant No. 4 to 6 of the present suit preferred appeal in RFA No. 696/1986 wherein the Hon'ble High Court of Karnataka given findings on alleged gift relied by D2 and also given findings with regarding to the sale agreement relied by the present defendant No. 4 to 6. He argued that in RFA No. 696/1986 the Hon'ble High Court of Karnataka has already given findings with 81 O.S.2488/1981 regarding to gift deed and with regard to agreement of sale. He argued that in view of the findings given by the Hon'ble High Court of Karnataka in RFA No. 696/1986 the defendants have proved the sale agreement dated 27.7.1967.
38. On the other hand the learned counsel for the legal representatives of plaintiff argued that the defendants are not proved the document Ex.D5 receipt and Ex.D8 sale agreement by giving cogent evidence. He argued that mere production of the document agreement of sale does not create any right or interest in favour of intending purchaser. He submitted that there is no entry in the property extract in pursuance of sale agreement. The defendants have not examined any witnesses of these document Ex.D5 and Ex.D6. He argued that in order to attract section 53A of 82 O.S.2488/1981 T.P.Act all the conditions enumerated in section 53(A) is not fulfilled. He argued that during the life time Narayanaswamy he has not performed his part of contract. Defendant No. 4 to 6 who are claimed under said Narayanaswamy have also not produced any documents to show that they have complied the provision under section 53(A) of T.P.Act. The learned counsel for the plaintiff also relied upon the judgment of Hon'ble High Court of Karnataka in B.V.Basavaraju since deceased represented by his legal representatives Vs. K.L.Kumarswamy and another reported in ILR 2018 Kar 1899. He argued that the defendants have utterly failed to prove the agreement of sale dated 27.7.1963.
39. I have appreciated the rival contentions and also perused the documents Ex.D5 receipt, Ex.D8 sale agreement, Ex.D7 certified copy of the judgment passed 83 O.S.2488/1981 by the Hon'ble High Court of Karnataka in RFA No. 696/1986. No doubt in previous suit filed by the 2 nd defendant in O.S.No.114/1980 the defendants have produced these sale agreement Ex.D8 which is marked in that suit as Ex.D31 and also produced the present Ex.D5 which was marked in that suit as Ex.D30. The defendant No. 4 to 6 have not produced the certified copy of the plaint and written statement in O.S.No.144/1980, however there is a gist of the pleadings mentioned in the judgment passed by the Hon'ble High Court of Karnataka in RFA No. 696/1956 which are in para 2 to para 9. The issues framed in O.S.No.114/1980 and findings given by the trial court on the issues mentioned in para 10(a) of judgment in RFA No. 696/1986. The parties in O.S.No.114/1980 was N.Ramakrishna plaintiff, Rangamma, N.Nagaraju, 84 O.S.2488/1981 N.Uma Shankar were defendants. The said Ramakrishna is the 2 nd defendant in the present suit. Rangamma is the defendant No. 6, N.Nagaraju is the defendant No. 4, N.Uma Shankar is defendant No. 5 of this suit. Admittedly the present plaintiff Chikkanna who represented the branch of Sampanna was not the party in O.S.No.114/1980. The suit in O.S.No.114/1980 was between the legal heirs of B.Narayanaswamy. The suit in O.S.No.114/1980 was filed for declaration, possession, redemption of mortgage and mesne profits. In that suit Kempamma was also party and was arrayed as 6 th defendant. That suit in O.S.No.114/1980 was filed on the basis of gift deed alleged gift deed dated 10.12.1965 executed by Kempamma in favour of N.Ramakrishna present defendant No. 2. Issue No. 2 in O.S.No.114/1980 85 O.S.2488/1981 was framed casting burden upon the plaintiff as of that suit to prove gift deed. Issue No.5 framed casting burden upon the defendant No. 1 and 2 of that suit to prove sale agreement dated 27.3.1963. No doubt there are other issues, i.e., issue No. 1 to 8, additional issue No. 1 to 4 framed in O.S.No.114/1980. The trial court given positive findings on issue No. 2. With regarding to issue No. 5 it is mentioned "as discussed". Since the defendants have not produced the certified copy of judgment in O.S.No.114/1980 this court not made known whether issue No. 5 was answered in the Affirmative or Negative.
40. The arguments of the learned counsel for the legal representatives of defendant No. 4 is that the Hon'ble High Court of Karnataka in RFA No. 696/1986 held that the agreement dated 27.7.1963 is proved is 86 O.S.2488/1981 not acceptable. On perusal of Ex.D7 certified copy of judgment in RFA No. 696/1986 it would go to show that the Hon'ble High Court of Karnataka allowed the appeal and the judgment and decree passed in O.S.No.114/1980 set aside on the ground that the respondent (plaintiff) has failed to prove issue No. 2 with regarding to gift deed. The learned counsel for the legal representatives of defendant No. 4 in his written arguments high-lighted the para No. 13, 14, 18, 25, 27, 28, 32, 33, 34 of the judgment in RFA No. 696/1986. This court has perused the entire judgment in RFA No. 696/1986 passed by the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka by giving elaborate findings on alleged gift deed relied by the plaintiff of that suit held that he has failed to prove issue No. 2. It is also held that when once it is 87 O.S.2488/1981 held issue No. 2 in the Negative the finding on the other issues will become merely academic. Having the respondent failed to prove issue No. 2 the appeal in RFA No. 696/1986 was allowed. It is pertinent to note that in para 18 of the said judgment the Hon'ble High Court of Karnataka observed that "however the appellants have not exercised their right over specific performance of agreement and they could not because they asserted the ownership of the property. In para 27 of the judgment it is observed that Kempamma who filed written statement on 17.9.1970. Kempamma died before her evidence is recorded therefore her name was deleted in cause title by virtue of application dated 18.6.1980. Admittedly Kempamma died in the year 1973. Beerappa and Kempamma spouse were having two sons (1) Sampanna and (2) Narayanaswamappa. It 88 O.S.2488/1981 is not in dispute that Sampanna died in the year 1935 and Narayanaswamappa died in the year 1967. According the the defendant No. 4 to 6 Kempamma executed agreement of sale in favour of Narayanaswamappa on 27.7.1963. From the date of alleged sale agreement till 1967 for four years Narayanaswamappa was alive. The Hon'ble High Court of Karnataka in RFA No. 696/1986 in para No. 9 mentioned the gist of contention taken by Kempamma in her written statement. She has contended that she is the absolute owner of the properties and having the power of ownership she has executed gift deed in favour of plaintiffs of that suit and delivered symbolic possession. According to her Narayanaswamy cannot exercise any right over the property, more so on the ground that he has joined her in execution of the 89 O.S.2488/1981 mortgage deed. In para 18 of the said judgment it is observed that Kempamma denies the right for the first time vide Ex.D41 issued as reply to the notice of the 1 st appellant dated 9.9.1967. She denies the execution of Ex.D31 (present Ex.D8). On perusal of the findings given in RFA No. 696/1986 it would go to show that during the life time of Kempamma she has denied the execution of agreement of sale which was produced by defendant No. 4 to 6 in O.S.No.114/1980. The learned counsel for the legal representatives of defendant No. 4 in his written statement submitted that O.S.No.114/1988 it was re-numbered in respect of old suit O.S.No.1450/1968. That means O.S.No.114/1980 was originally filed in the year 1968 soon after the death of Sri.Narayanaswamappa. In O.S.No.114/1980 the present plaintiff Chikkanna was not party. Since 90 O.S.2488/1981 the plaintiff Chikkanna was not party in O.S.No.114/1980 and in RFA No. 696/1986 the findings given in that suit are not binding on the plaintiff Chikkanna. More than that there is no such finding in RFA No. 696 that sale agreement dated 27.7.1963 was proved as argued by the learned counsel for the legal representatives of defendant No. 4.
41. I have gone through the document Ex.D8 sale agreement dated 27.7.1963. In this document there are two items of the property 1 st item is mentioned as house old door No. 67, new No. 15, 2 nd item is mentioned as old house No. 63, 63/1, 63/2 new No. 19, 20 and 21. It is also mentioned in Ex.D8 that out of 2 nd item northern half portion is subject matter agreement of sale for Rs.5,000/-. It is also mentioned that she entered sale agreement due of final constraint 91 O.S.2488/1981 to make expenses of the suit proceedings of O.S.No.205/1961 filed by Chikkanna. It is stated in Ex.D8 that execution of sale deed will be after disposal of suit in O.S.No.2005/1961 after receipt of balance amount of Rs.1,000/-. It is also mentioned in Ex.D8 that Kempamma received Rs.3,250/- towards the litigation expenses spent by Narayanaswamy and received cash amount of Rs.750/- in all Rs.4,000/- and balance amount of Rs.1,000/- to be payable at the time of registration and she has entered agreement for sale in respect of northern portion of the house. DW3 who has got marked this document Ex.D8 has not specifically stated about the contents of document Ex.D8. DW3 has simply deposed that Kempamma executed agreement of sale in favour of Narayanaswamy vide agreement dated 27.7.1963 92 O.S.2488/1981 wherein she agreed to sell house bearing old No. 67, present No. 15 and house property bearing old No. 63/1, present No. 20. In this suit property bearing No. 15 is item No. 1 on which the judgment passed by this court confirmed in RFA No. 686/2002 c/w RFA No. 810/2002 and attained finality. According to DW3 another subject matter of Ex.D8 is item No. 2 of the schedule property. According to him in Ex.D8 the house property which is mentioned as old No. 63/1 is the present house No. 20, i.e., item No. 2. It is pertinent to note that in Ex.D8 only northern half portion of old house No. 63, 63/1, 63/2, new No. 19, 20 and 21 is mentioned as subject matter of the agreement. DW3 has not deposed about the contents of document Ex.D8. The document Ex.D5 is the receipt dated 27.7.1963 wherein also it is mentioned 93 O.S.2488/1981 that the sale consideration amount of Rs.5,000/- is for northern portion of that house and for receipt of Rs.4,000/-. It is now settled principle of law is that the agreement of sale is not creates title over any property. The agreement of sale is nothing but anticipation of title over the property. The learned counsel for the plaintiff relied upon the decision reported in ILR 2019 Kar 899 in B.V.Basavaraju since the deceased represented by his legal representatives Vs. L.N.Narayanaswamy and another and argued that in order to attract section 53(A) of T.P.Act the ingredients that must be satisfied is (1) The agreement must be in writing signed by the plaintiff intending to transfer as immovable property, the items necessary to construct transfer being capable of reasonable certainty the transferee having taken possession of the immovable 94 O.S.2488/1981 property. (2) It is in furtherance of contract and (3) The transferee has performed or is willing to perform his part of contract. There is some force in the arguments of the learned counsel for the plaintiffs. The defendant No. 4 to 6 who claims that the suit schedule property item No. 2 property is their exclusive property on the basis of sale agreement have not made any efforts to file suit for specific performance of contract. The provision of section 53(A) does not create title of transfer in property in question but gives him a very limited right that too subject to satisfaction of conditions as stated in section 53(A) itself. This proposition laid down by the Hon'ble Supreme Court in the State of Uttar Pradesh Vs. District Judge reported in AIR 1997 SC 53. In order to attract provision under section 53(A) of 95 O.S.2488/1981 T.P.Act neither Narayanaswamappa during his life time made an attempt to enforce the agreement nor his legal heirs defendant No. 1 to 6 have made an effort to enforce sale agreement. No doubt Narayanaswamy died prior to death of Kempamma. But after the death of Narayanaswamy the defendant No. 4 to 6 who were aware of the alleged agreement dated 27.7.1963 were not made any efforts to file suit against Kempamma to complete sale transaction. On perusal of the judgment passed by the Hon'ble High Court of Karnataka in RFA No. 696/1981 Kempamma during her life time has disputed very same document Ex.D31 produced in O.S.No.114/1980 in the year 1970 itself. Even thereafter also the defendant No. 4 to 6 have not made any efforts to file suit against Kempamma on the basis of the alleged document Ex.D8 96 O.S.2488/1981 sale agreement. There is no evidence on the side of the defendants to show that Narayanappa during his life time and after his death their legal representatives made an attempt to give balance consideration amount of Rs.1,000/- to Smt.Kempamma and made attempt to get registered sale deed in respect of the property which is mentioned in Ex.D8. The defendant No. 4 to 6 have also not examined any witnesses who signed on Ex.D8 and Ex.D5. Defendant No. 4 to 6 and their legal heirs have failed to prove the document Ex.D8 sale agreement. The defendants have also failed to prove that Kempamma in pursuance of sale agreement dated 27.7.1963 delivered the possession of item No. 2 in favour of her son Narayanaswamappa. Hence I answer issue No. 9 and 10 in the Negative. 97 O.S.2488/1981
42. Deceased plaintiff Chikkanna is the son of Sampamma. Original defendant No. 1 to 3 are the children of Narayanaswamappa born through his first wife and defendant No. 4 to 6 are the children of Narayanaswamappa born through another wife. Thus the defendant No. 1 to 6 who are the children of Narayanaswamappa representing the branch of Narayanaswamappa plaintiff Chikkanna and defendant No. 7 and 8 are the son, wife and daughter of Sampamma who are representing another branch. Admittedly Beerappa and Kempamma spouse were having two sons Sampanna and Narayanaswamappa. The plaintiffs as well as defendants admitted that the suit schedule item No. 2 is belongs to Kempamma. Merely because after the death of Kempamma the defendant No. 4 to 6 continued in the possession of 98 O.S.2488/1981 suit schedule item No.2 that is not sufficient to hold that the suit schedule item No. 2 belongs to defendant No. 4 to 6. The plaintiff has filed this suit in the year 1981. Kempamma died in the year 1973. After the death of Kempamma within 9 years the plaintiff has filed this suit against the defendants for the relief of partition and separate possession. In this suit this court already decreed the suit in respect of suit schedule item No. 1 which is confirmed in RFA No. 686/2006 c/w 512/2002. The matter remanded back only in respect of suit schedule item No. 2 to consider the evidence. After remand on the side of the defendants DW3 to DW5 have been examined document Ex.D4 to Ex.D9 are marked. There is nothing to justify that the plaintiff was excluded from the joint family. The document Ex.P2 is the Khatha 99 O.S.2488/1981 extract of the suit property shows that the suit property belongs to Kempamma. The defendants have not produced the recent property extract of suit schedule item No. 2. The defendants have failed to prove that Kempamma died testate. While discussing the additional issue No. 1 this court held that the defendants are failed to prove Ex.D4 Will. The defendant No. 4 to 6 who relied on the document Ex.D8 sale agreement also failed to prove the necessary ingredients as contemplated under section 53(A) of T.P.Act. The defendant No. 1 to 6 have also not produced property tax receipt to show that after the death of Kempamma the suit schedule item No. 2 mutated to their name and they exercised their right over the suit schedule property excluding the plaintiff. Even for the sake of arguments it is presumed that the 100 O.S.2488/1981 plaintiffs are not actual and physical possession of suit schedule item No. 2 that does not mean that the plaintiffs were excluded from the joint family. There is no document on the side of the defendants to show that the plaintiff was ousted from joint family after death of Kempamma. The document Ex.D1 and Ex.D2 which are in respect of the portion of property in municipal house No. 63 is not sufficient to hold that the plaintiffs were excluded from the suit schedule item No.2. After the death of Kempamma plaintiff who representing the branch of Sampanna and defendant No. 1 to 6 who representing the branch of Narayanaswamappa are entitled for equal share in the suit schedule properties. Hence I answer issue No. 1 and issue no.2 in the Affirmative and issue No. 9 in the Negative, issue No. 10 in the Negative. 101 O.S.2488/1981
43. Issue No. 4 & Issue No. 8: Consideration of these two issues at this stage does not survive because the judgment and decree passed by this court with respect to suit schedule item No. 1 is already confirmed by the Hon'ble High Court of Karnataka in common judgment in RFA No. 686/2002 c/w RFA No. 810/2002. Hence this court of the opinion that these issue No. 4 and issue No. 8 which framed in respect of suit schedule item No. 1 does not survive for consideration.
44. Issue No. 7: The defendant No. 2 has taken contention that the deceased Kempamma has gifted the suit schedule item No. 2 property in favour of the defendant No. 2 under the gift deeds dated 10.12.1965 and 26.10.1972. In this suit the defendant No. 2 has not produced any such gift deeds and also not lead any 102 O.S.2488/1981 evidence. In the chief examination of DW3 the certified copy of the judgment passed by the Hon'ble High Court of Karnataka in RFA No. 696/1986 marked at Ex.D7. This judgment is passed on the appeal filed by defendant No. 1 to 3 of that suit against the present defendant No. 2 challenging the judgment and decree dated 16.9.1986 passed in O.S.No.114/1980. The Hon'ble High Court of Karnataka in RFA No. 696/1986 given detailed findings on issue No. 2 framed in O.S.No.114/1980 by reversing the finding given by the trial court. The Hon'ble High Court of Karnataka in RFA No. 696/1986 held that the respondent (present defendant No. 2) has failed to prove issue No. 2 which is framed casting burden on him to prove the gift deed. Accordingly appeal in RFA No. 696/1986 allowed and judgment and decree passed in 103 O.S.2488/1981 O.S.No.114/1980 set aside. The learned counsel for the legal representatives of defendant No. 4 submitted that the 2 nd defendant aggrieved by the judgment passed in RFA No. 686/1986 had preferred Civil Appeal in Special Leave of Appeal (Civil) No. 1132/1994 before the Hon'ble Supreme Court of India. The Apex Court on considering the facts of the case dismissed the said appeal. Thus the judgment passed by the Hon'ble High Court of Karnataka in RFA No. 686/1986 was confirmed. Since the Hon'ble High Court of Karnataka held in RFA No. 696/1986 that gift deed is not proved the judgment passed by the Hon'ble High Court of Karnataka attained finality, there is nothing to show that deceased Kempamma had gifted suit schedule item No. 2 property in favour of defendant No. 2 under gift deeds. More than that in this suit neither defendant 104 O.S.2488/1981 No. 2 in his life time nor his legal heirs after his death stepped into the witness box. The defendant No. 2 has failed to prove issue No. 7. Hence I answer issue No. 7 in the Negative.
45. Issue No. 6: The defendant No. 1 and 3 have claimed that they have perfected the title over the suit schedule item No. 1 by way of adverse possession. This court already decreed the suit in respect of suit schedule item No. 1 which is confirmed by the Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w RFA No. 810/2002. The defendant No. 4 to 6 have taken contention that they have perfected the title over the suit schedule item No. 2 by way of adverse possession. The learned counsel for the legal representatives of plaintiff submitted that it is tried proposition of law that possession under agreement of sale is a derivative 105 O.S.2488/1981 title and it can never be adverse title. Therefore the defendants are not permitted in law to claim mutually destructive defences or inconsistent claim as held by the Hon'ble Supreme Court in the matter of Bharpur Singh Vs. Samsher Singh in the decision reported in (2009)3 SCC 687. There is some force in the arguments of the learned counsel for the legal representatives of plaintiff. In this suit the defendant No. 1 to 6 have not clearly admitted that the plaintiff and defendant No. 7 and 8 are the co-owners and to their knowledge openly with hostile they are in possession and enjoyment of the suit schedule properties for more than 12 years. Admittedly in previous suit filed by the defendant No. 2 in O.S.No.114/1980 (MFA No. 696/1986) the present plaintiffs were not parties. The plaintiff has filed this suit in the year 1981 claiming 106 O.S.2488/1981 the share in the property belongs to Smt.Kempamma that too after the death of Kempamma. Kempamma died in the year 1973. After the death of Kempamma within 9 years the plaintiff has filed this suit. The defendant No. 4 to 6 have taken contention that they became the owners of the suit schedule item No. 2 by virtue of sale agreement dated 27.7.1963 executed by Kempamma in favour of Narayanaswamy. According to the defendant No. 4 to 6 they were in possession of the property by virtue of sale agreement dated 27.7.1963. This court while discussing issue No. 9 and 10 held that defendant No. 4 to 6 have failed to prove agreement of sale dated 27.7.1963 by giving cogent evidence. It is now settled principle of law is that if a person is in actual possession and has a right to possession under the title involving a due recognition 107 O.S.2488/1981 of owners title his possession cannot be regarded as adverse. This principle is laid down by the Hon'ble Supreme Court in the decision reported in AIR 1990 SC 553 in Achal Reddy Vs. Ramakrishna Reddiar. In this suit the defendant No. 4 to 6 who claim that they are in possession of suit property on the strength of agreement of sale dated 27.7.1963 but they failed to prove that they were always ready and willing to perform their part of contract by paying balance consideration amount of Rs.1,000/- during the life time of Kempamma. This is a suit filed by the plaintiff for the relief of partition. While discussing issue No. 1 and 2 this court held that the suit properties are the joint family properties of the plaintiff and defendants. The plaintiff has filed this suit within 12 years after the death of Kempnammna. The defendants have 108 O.S.2488/1981 admitted that the suit property belongs to Kempamma. In the partition suit such defence of adverse possession is not available to the co-owners. The defendants have not given cogent evidence to show that they are in adverse possession of the suit schedule property item No. 2. Hence I answer issue No. 6 in the Negative.
46. Issue No. 11: The plaintiff has filed this suit in the year 1981. the plaintiff has valued the suit under section 35(2) of Karnataka Court Fees and Suit Valuation Act and required court fee of Rs.200/- paid. This court already decreed the suit in respect of suit schedule item No. 1 which is confirmed by the Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w RFA No. 810/2002. After remand no arguments addressed on this issue. This court of the opinion that the suit 109 O.S.2488/1981 is properly valued. Hence issue No. 11 is answered in the Affirmative.
47. Issue No. 10, 10(a), 10(b): While discussing issue No. 1 and 2 this court held that the suit properties are the joint schedule properties of the plaintiffs and defendants. This suit originally filed by the plaintiff Chikkanna who is the son of Sampamma. Plaintiff Chikkanna, defendant No. 7 and defendant No. 8 are representing the branch of Sampamma. The defendant No. 1 to 6 are representing the branch of Narayanaswamappa. In view of the findings on issue No. 1, issue No. 2 the plaintiffs who representing the branch of Sampamma are entitled to half share in the suit schedule item No. 2. The defendant No. 1 to 6 who representing the branch of Narayanaswamappa are entitled for remaining half share. It is undisputed fact 110 O.S.2488/1981 that defendant No. 7 and 8 are dead who are represented by the plaintiffs. Thus the legal heirs of plaintiff are jointly entitled for half share in the suit schedule item No. 2 property. The defendant No. 1 to 6 are entitled for remaining half share in the suit schedule item No. 2. Hence I answer issue No. 10(a) and 10(b) accordingly.
48. Issue No. 12: In view of my findings on issue No. 1 to 11 and Additional Issue No. 1, the plaintiffs are entitled for half share in the suit schedule item No. 2 property. Defendant No. 1 to 6 are entitled for remaining half share. The plaintiffs are not entitled for mesne profit as sought for. In the result I proceed to pass the following:
111 O.S.2488/1981
ORDER The suit of the plaintiffs is decreed. P1(a) to (e) the legal heirs of deceased plaintiff are entitled for half share in the suit schedule item No.2 and entitled for possession of half share. Their claim for mesne profit is rejected.
It is made it clear that this court already decreed the suit in so far as the suit schedule item No. 1 is concerned and the judgment and decree passed by this court dated 16.3.2002 is already confirmed by the Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w RFA No. 810/2002 in so far as item No. 1 is concerned.112 O.S.2488/1981
Parties shall bear their own cost.
Draw preliminary decree.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 6th day of November 2020.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Chikkanna PW2 - Krishna S/o Chikkanna
Witness examined for the defendant/s :
DW1 - Nagaraju
DW2 - N.Beerappa
DW3 - N.Sujith
DW4 - Chikkanna
DW5 - Chandrappa
113 O.S.2488/1981
Documents marked for the plaintiff/s :
Ex.P1 - Khatha extract
Ex.P2 - Tax paid receipt
Ex.P3 - Tax paid receipt
Ex.P4 - Certified copy of judgment in
O.S.No.422/1964
Ex.P5 - Regular Appeal No.13/1967
Ex.P6 - Copy of legal notice dated 28.1.1981
Ex.P7 - Postal cover
Ex.P8 - Postal cover
Ex.P9 - Postal cover
Ex.P10 - Postal cover
Ex.P11 - Postal cover
Documents marked for the defendant/s :
Ex.D1 - certified copy of judgment and decree in O.S.No.1756/1954 Ex.D2 - Delivery notice Ex.D3 - certified copy of judgment in O.S.No.422/1964 114 O.S.2488/1981 Ex.D4 - Will Ex.D5 - Consideration receipt Ex.D6 - Will Ex.D7 - certified copy of judgment in RFA No.696/1986 Ex.D8 - Sale agreement dated 27.7.1963 Ex.D9 - Certified copy of plaint in O.S.No.422/1964 (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.115 O.S.2488/1981
Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiffs is decreed. P1(a) to (Ex.P) the legal heirs of deceased plaintiff are entitled for half share in the suit schedule item No.2 and entitled for possession of half share. Their claim for mesne profit is rejected.
It is made it clear that this court already decreed the suit in so far as the suit schedule item No. 1 is concerned and the judgment and decree passed by this court dated 16.3.2002 is already confirmed by the Hon'ble High Court of Karnataka in RFA No. 686/2002 c/w 116 O.S.2488/1981 RFA No. 810/2002 in so far as item No. 1 is concerned.
Parties shall bear their own cost.
Draw preliminary decree.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
117 O.S.2488/1981