Bangalore District Court
Smt.T.Nalini vs Sri.T.Gopalakrishna on 8 November, 2017
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the 8th day of November, 2017
Present: Smt. ROOPA NAIK,
B.Sc.,MA,LLM,PGD (Human Rights)
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O.S.No.5407/2011
PLAINTIFFS: 1. Smt.T.Nalini
W/o S.S.Chandrashekar,
D/o Gopalakrishna,
Aged about 52 years,
R/at #84/24, 7th Main,
8th Cross, 2nd Block, Jayanagar,
Bengaluru- 560 011.
2. Smt.Sujatha
W/o Suryanararayan,
D/o Gopalakrishna,
Aged about 42 years.
3. Sri.Arunkumar
S/o Gopalakrishna,
Aged about 40 years.
Both are R/at # 143,
10th 'A' Main Road,
5th Cross, 1st Block,
Jayanagar, Bengaluru-11.
(By Sri.Sathish Chandra. K.K., Adv.)
Vs.
-2- O.S.5407/2011
DEFENDANTS: 1. Sri.T.Gopalakrishna
S/o late T.Govindaswamy Chetty,
Aged about 65 years.
2. Smt.Susheelamma
W/o T.Gopalakrishna,
Both are R/at No.143,
10th 'A' Main Road, 5th Cross,
1st Bolock, Jayanagar,
Bengaluru- 560 011.
3. Dr.Shashikala Rao
W/o Dr. Venkateshwararao,
D/o Gopalakrishna,
Aged about 51 years,
R/at # 12-2-823/A118,
1st Floor, Santhoshnagar,
Mehandi Patnam, Hyderabad,
Andhra Pradesh.
4. M/s. Karnataka State Industrial
Investment & Development
Corporation Limited, No.49,
Kanija Bhavan, 4th Floor,
East Wing, Race Course Road,
Bengaluru-1 Rep. by its
Deputy Manager.
(By Sri.J.C.Ramesh, Adv. for D4
D.1 & 2: Exparte, Suit against D.3 is dismissed as per
order dated 21.10.2013)
Date of institution of the suit: 27.07.2011
Nature of the suit: Partition
Date of commencement of 09.10.2014
-3- O.S.5407/2011
recording of evidence:
Date on which Judgment was 08.11.2017
pronounced:
Duration: Days Months Years
11 03 06
JUDGMENT
This suit is filed by plaintiffs against defendants for partition and separate possession praying that they may be awarded 1/5th share each in suit schedule property and to restrain the defendant No.4 from auctioning/ selling the suit schedule property in any manner and also for costs and other reliefs.
2. a) It is contention of plaintiffs that plaintiff Nos.1, 2 and defendant No.3 are daughters and plaintiff No.3 is son of defendant Nos. 1 and 2 and all of them are coparceners having equal rights over the Hindu Joint family property. Defendant No.1 is the kartha of the joint family and joint family owned house property and land bearing old No.143, new No.12, situated at 1st Main Road,
-4- O.S.5407/2011 10 'A' Main road, 1st Block, Jayanagar, measuring East to West 90 feet and North to South 45 feet, which is morefully described in plaint schedule.
xxb) It is further contended that suit schedule property was purchased out of joint family nucleus and was registered in the name of defendant No.2 and it is not self acquired property of defendant No.2. Defendant No.2 is a housewife and is not having any income independently and she has no means to purchase the same. Defendant No.1 being the kartha of joint family looked after the joint family affairs and has paid consideration amount out of joint family funds through cheques and thus all of them have joint ownership over suit schedule property as the family is still the joint family. So far as no partition has taken place and as such every member of coparcenary Hindu Joint family has right and ownership in respect of his/her respective share in joint family property.
-5- O.S.5407/2011
c) It is further contended that their grand-father Sri.Govindaswamy Chetty owned several properties at Thirupathi, Andhra Pradesh. During life time of their grand father, there was partition between his sons through registered partition deed dated 27.1.1960. Under the partition deed, defendant No.1 got 'E' Schedule property and after partition, defendant No.1 used to receive rents from the shops and out of the funds he has purchased suit schedule property in name of defendant No.2. Defendant No.1 has sold properties at Thirupathi on 23.2.1985 and out of said amount, he has constructed ground and first floor.
It is further contended that plaintiffs came to know that defendant No.2 has executed some papers in favour of defendant No.4 and in that regard, she has received notice from Court in Misc. Petition No.13/2011. Defendant No.2 has no independent right, title or interest in respect of suit schedule property. Defendant No.2's act is without any right and she cannot deprive shares of
-6- O.S.5407/2011 plaintiffs in suit schedule property. Thereafter plaintiffs demanded their shares, but defendant No.2 gave evasive reply. Therefore, they are constrained to file present suit. It is prayed that suit may be decreed.
3. Plaint schedule reads thus:
All that piece and parcel of the property comprising land and building, bearing old No.143 New No.12, situated at 1st main Road (10th 'A' Main Road), 1st Block, Jayanagar, Division No.36 measuring East to West 45 feet and North to South 90 feet, total area 376 Square feet and bounded on:
East by: Property No.172;
West by: 1st Main Road (10th A Main Road); North by: Property No.142; and South by: Property No.144.
4. a) In pursuance of suit summons, only defendant No. 4 appeared through its counsel and filed written statement. Inspite of service of summons on defendant Nos.1 and 2, they did not appear before the Court and they were placed exparte. Suit against defendant No.3 was dismissed as per order dated 21.10.2013.
-7- O.S.5407/2011
5. It is contended in written statement filed by defendant No.4 that present suit is not maintainable, as the suit is filed under collusion between the plaintiffs and defendant Nos. 1 to 3 in order to safeguard the suit schedule property from collateral liability. Defendant Corporation is financial institution established by State Government and therefore, present suit for permanent injunction restraining defendant No.4 from auctioning or selling suit schedule property is not maintainable.
It is further contended that defendant No.2 had preferred O.S.619/2005 before CCH-12 seeking relief of injunction restraining defendant No.4. Said Court had rejected prayer for interim relief and against said order, defendant No.2 had preferred writ petition and miscellaneous first appeal before Hon'ble High Court of Karnataka. Defendant No.2 with connivance of plaintiffs made all hectic effort to safeguard suit schedule property. Defendants preferred Miscellaneous No.842/2007 before
-8- O.S.5407/2011 VI Addl. City Civil Judge, Bengaluru and the Court was pleased to order for attachment of suit schedule property. In view of Judgment reported in SCC (2) page 236, Miscellaneous No.842/2007 was represented before Principal District Judge, Rural District, Bengaluru, which is still pending. Viewed from any angle, suit of plaintiff is not maintainable. It is prayed that suit may be dismissed.
6. On the basis of the pleadings of the parties, my Predecessor in office has framed the following issues:
1. Whether the plaintiffs prove that themselves and defendants 1 to 3 being the coparceners are having equal rights over the suit schedule property and they are entitled for partition and separate possession of their 1/5th share each in the suit property by metes and bounds?
2. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed against defendant No.4?
3. Whether the defendant No.4 proves that the suit of the plaintiffs is a collusive suit with defendants 1 to 3 to defeat its claim?
-9- O.S.5407/2011
4. Whether the defendant No.4 further proves that the suit schedule property is offered as security by the defendant No.2 as a surety by depositing all the original title deeds of the property while availing a corporate loan of Rs.250 lakhs by the company- M/s.
Master strips Ltd.?
5. Whether a suit simpliciter brought by the plaintiffs for partition is maintainable under law?
6. What order or decree?
7. In support of the case of plaintiffs, plaintiff No.3 is examined as PW.1 and he has got marked Ex.P.1 to P.8, Ex.P.2(a), P.6(a) and P.8(a). Thereafter plaintiff No.2 was examined as PW.2. On the other hand, Manager of defendant No.4-Bank is examined as DW.1 and he has got marked Ex.D.1 to D.17.
8. Heard and perused records.
9. My findings on the above Points are:
Issue No.1: In negative.
Issue No.2: In negative.
Issue No.3: deleted
Issue No.4: In affirmative.
Issue No.5: Deleted.
- 10 - O.S.5407/2011
Issue No.6: As per the final order
for the following;
REASONS
10. Issue Nos.1, 2 & 4: Since all these issues are
interlinked with each other and require common
discussion of facts, they are taken together for discussion to avoid repetition of facts.
11. At the outset, I would like to point out that relationship between the parties is admitted. Plaintiffs have approached this Court seeking relief of partition and separate possession of schedule property by metes and bounds and for allotment of 1/5th share each in their favour and for delivery of separate possession of their respective shares in suit schedule property. First of all plaintiffs have to prove that suit schedule property is joint family property of plaintiffs and defendant Nos. 1 to 3 and that defendant No.2 had no exclusive right to execute documents in favour of defendant No.4 corporation as security to the corporate loan.
- 11 - O.S.5407/2011 Bone of contention of plaintiffs is that suit schedule property is joint family property of plaintiffs and defendant Nos. 1 to 3 and that defendant No.2 had no exclusive right over suit schedule property and thus she should not have executed documents in security of loan in favour of defendant No.4 in respect of suit schedule property. Initial burden of proving their case is heavily cast upon plaintiffs. Now I would like to find out whether plaintiffs have discharged burden cast upon them by leading cogent evidence.
18. Plaintiff No.3 is examined as PW.1. He reiterates contention of plaintiffs in plaint. Plaintiff No.2 is examined as PW.2 and she also reiterates plaint averments. In order to prove their case, plaintiffs have mainly relied on Ex.P.1 genealogical tree; Ex.P.2 certified copy of sale deed dated 15.2.1979 ; Ex.P.3 katha extract; Ex.P.4 and P.5 tax paid receipts; Ex.P.6 certified copy of sale deed dated 23.2.1985; Ex.P.7 death
- 12 - O.S.5407/2011 certificate; Ex.P.8 certified copy of partition deed dated 29.1.1960.
As already stated by me relationship between the parties is admitted in present case and therefore, Ex.P.1 genealogical tree is not of much use to plaintiffs. Ex.P.2 is sale deed dated 15.2.1979 executed by one Kamala and Bhaskar Rao in favour of defendant No.2 in respect of suit schedule property. Careful perusal of Ex.P.2 shows that there is no recital in Ex.P.2 that suit property was being purchased in the name of defendant No.2 by defendant No.1 or that said property was being purchased by joint family in the name of defendant No.2. Simple reading of Ex.P.2 shows that name of defendant No.2 alone was shown as purchaser and thus it is to be presumed that she had purchased suit schedule property.
Even though contention of plaintiffs that defendant No.1, their father had purchased suit schedule property benami in name of their mother, who was house wife and had no earning of her own is considered, then also said
- 13 - O.S.5407/2011 property becomes absolute property of defendant No.2. Because, after coming into force of Benami Transactions (Prohibition) Act, the person, who holds property Benami himself becomes absolute owner of the property and not the person who had purchased the property in the name of some other person.
Next contention of the plaintiffs is that their father had purchased suit schedule property by selling property at Thirupathi, which was allotted to him in registered partition deed dated 27.1.1960. It is significant to note that sale deed in favour of defendant No.2 in respect of suit schedule property is dated 15.2.1979, whereas sale deed under which Gopalakrishna sold property at Thirupathi in favour of Siddarama Reddy is dated 23.2.1985. Therefore, this contention of plaintiffs that suit schedule property was purchased by selling ancestral property at Thirupathi cannot be believed. In addition to this, no evidence is forth coming from plaintiffs showing that property at Thirupathi used to fetch rent and said
- 14 - O.S.5407/2011 rent amount was used in purchase of suit schedule property. Plaintiffs have not chosen to produce any lease deed or rent receipts in support of their contention for reasons best known to them. Thus Ex.P.2, Ex.P.6 and Ex.P.8 are not of any use to plaintiffs to prove that suit schedule property is joint family property. Likewise tax paid receipts Ex.P.4 and P.5 showing name of defendant No.2, Ex.P.7 death certificate of defendant No.1 Gopalakrishna- father of plaintiffs are also not of much use to plaintiffs to prove their case.
It is significant to note that when the case was posted for Judgment, plaintiffs re-opened their side and examined PW.2 and defendants did not choose to cross- examine PW.2. As already stated by me plaintiffs have not put-forth any material in support of their case. Therefore, non cross-examination of PW.2 in no way strengthens case of plaintiffs and only because, PW.2 is not cross-examined, it cannot be said that plaintiffs have proved their case. Therefore, I have no hesitation to say
- 15 - O.S.5407/2011 that plaintiffs have utterly failed to prove that suit schedule property is joint family property as contended by them and not exclusive property of defendant No.2.
On the other hand, defendant No.4 is examined as DW.1 and he has produced authority letter at Ex.D.1; sanction letter dated 3.9.1998 at Ex.D.2; agreement dated 15.10.1998 executed by defendant No.2 in favour of defendant No.4 at Ex.D.3; memorandum of entry at Ex.D.4; original registered sale deed dated 8.6.1959 executed by CITB in favour of one Sathyamurthy son of Chalapathi Sharma in respect of suit schedule property at Ex.D.5; original registered sale deed dated 15.7.1959 executed by Sathya Murthy in favour of Somasundar Rao in respect of suit schedule property at Ex.D.6; Original registered Mortgage deed dated 4.12.1959 at Ex.D.7; Covering letter written by BCC bank dated 21.2.1966 at Ex.D.8; original registered sale deed dated 15.21979 executed in favour of defendant No.2 by Smt.Kamala and Bhaskar Rao in respect of suit schedule property at
- 16 - O.S.5407/2011 Ex.D.9; katha certificate showing name of defendant No.2 at Ex.D.10; two tax paid receipts showing name of defendant No.2 at Ex.D.11 and D.12; encumbrance certificate at Ex.D.13; Nil encumbrance certificate at Ex.D.14; order sheet in O.S.619/2005 at Ex.D.15; petition in Miscellaneous number 13/2011 at Ex.D.16; order passed by Hon'ble High Court in W.P.No.588/2008 dated 7.7.2008 at Ex.D.17.
In view of reasons given by me above coupled with Ex.D.1 to D.17, I have no hesitation to say that plaintiffs have utterly failed to prove that they are entitled for 1/5th share each in suit schedule property and on the other hand, defendant No.4 has successfully proved that suit schedule property was offered as security by defendant No.2 by depositing all the original documents while availing corporate loan of Rs.250.00 Lakhs. Accordingly I answer issue No.1, 2 in 'negative' and issue No.4 in 'affirmative'.
- 17 - O.S.5407/2011
34. Issue No.6: In view of the above, I proceed to pass the following:
ORDER The instant suit filed by the plaintiffs against defendants is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on line and print out taken thereof is corrected, signed and pronounced by me in Open Court on this 8th day of November, 2017).
(ROOPA NAIK) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for plaintiff:
PW.1: T.Arun Kumar PW.2: T. Sujatha
List of documents marked for plaintiff:
Ex.P.1: Genealogical tree
Ex.P.2: Certified copy of sale deed dated 15.2.1979
Ex.P.2(a): Typed copy of Ex.P.2.
- 18 - O.S.5407/2011
Ex.P.3: Khatha extract.
Ex.P.4: Acknowledgement for having paid tax.
Ex.P.5: Acknowledgement for having paid tax.
Ex.P.6: Certified copy of sale deed dated 23.2.1985
Ex.P.6(a): Translated & typed copy of Ex.P.6. Ex.P.7: Death certificate of defendant No.1 Ex.P.8: Certified copy of partition deed dated 29.1.1960 Ex.P.8(a): Translated typed copy of Ex.P.8.
List of witnesses examined for defendants:
DW.1: N.Manjunatha List of documents marked for defendant:
Ex.D.1: Authorisation letter.
Ex.D.2: Sanctioned communication letter dt. 3.9.1998
Ex.D.3: Agreement dated 16.10.1998.
Ex.D.4: Memorandum of Entry dated 16.10.1998.
Ex.D.5: Registered sale deed dated 8.6.1959.
Ex.D.6: Registered sale deed dated 15.7.1959.
Ex.D.7: Registered Adar Letter dated 4.12.1959.
Ex.D.8: Discharge letter dated 21.2.1966.
Ex.D.9: Sale deed dated 15.2.1979
Ex.D.10: Khatha certificate.
Ex.D.11: Tax paid receipt.
Ex.D.12: Tax paid receipt.
Ex.D.13: Certified copy of Encumbrance Certificate.
Ex.D.14: Certified copy of nil Encumbrance Certificate.
Ex.D.15: Certified copy of order sheet in O.S.619/2015.
Ex.D.16: Certified copy of petition in Misc. 13/2011.
Ex.D.17: Certified copy of order passed in
(ROOPA NAIK)
XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE,
BENGALURU CITY.
- 19 - O.S.5407/2011