Bangalore District Court
Smt. Narayanamma (Dead) vs Shri Yele Gowda on 27 January, 2022
KABC010160992010
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT BENGALURU
Dated this the 27th day of January, 2022.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.5147/2010
PLAINTIFF : 1. Smt. Narayanamma (dead)
W/o D.Maliyappa
Aged about 75 years,
Vishwanatha-Nagenahalli,
R.T.Nagar post,
Bangalore - 560032.
2. Smt. Bhagyamma,
W/o Ramakrishna Murthy,
Aged about 50 years
Vishwanatha-Nagenahalli,
R.T.Nagar post,
Bangalore - 560032.
(By H.H., Advocate)
VS.
2
O.S.No. 5147/2010
DEFENDANTS : Shri Yele Gowda,
S/o late D.Muniyappa
Aged about 47 years,
R/ at Viswanatha Naganahalli,
R.T.Nagar post,
Bangalore - 560032.
(By N.T.G., Advocate)
Date of Institution of the suit : 26-07-2010
Nature of the suit : Declaration &
Injunction
Date of commencement of : 20-08-2011
recording of the evidence
Date on which the Judgment : 27-01-2022
was pronounced
Total Duration Years Months Days
11 06 01
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
The plaintiffs are before the court for the following reliefs;
Declaring that the plaintiffs are the absolute owners of the suit schedule property and consequently, Direct the defendant, his agents, henchmen or anybody claiming under him to hand over the vacant 3 O.S.No. 5147/2010 possession of the suit schedule property in favour of the plaintiff, failing which to appoint an officer of the court for the said purpose and, consequently, direct the defendant to demolish the illegal construction put up by the defendant or his henchmen over the suit schedule property, failing which to appoint an officer of the court for the said purpose, and For enquiry into mesne profits and for damages at the rate of Rs.15,000/- per month from the date of suit till the defendant hand over vacant possession of the suit property, Grant such relief/s as this court deems fit to grant to the plaintiff on the facts and circumstances of the case.
2. The gist of the plaintiffs' case is that, originally land bearing Sy.No.1/14 of Viswanatha Nagenahalli, Kasaba Hobli, Bangalore North Taluk, measuring 2 4 O.S.No. 5147/2010 guntas belong to one Doddamaliappa. During the year 1962 the said land along with other lands were partitioned between the son, grandsons of Doddamaliappa, including the father of the defendant. The said land fell to the share of Yeliappa son of Doddamaliappa, pursuant to the said registered partition deed dated 9/3/1962 the said Yeliappa was in possession and enjoyment of the said land as absolute owner. Thereafter Yeliappa son of Doddamaliappa executed a registered will on 9/3/1962, bequeathing ½ guntas in favour of father of defendant D. Muniyappa and 1 ½ guntas in favour of D.Maliyappa S/o Doddahullurappa. The said will was canceled on 4/7/1962 due to inherent defects. The said Yeliappa executed another registered will dated 4/7/1962 to bequeathing 22 X 33 feet of land in Sy.No.1/14 of Viswanatha Nagenahalli in favour of D.Maliappa and half guntas in favour of father of defendant i.e., 5 O.S.No. 5147/2010 D.Muniyappa, While he was in sound disposing state of mind. The said Will was acted upon and pursuant to the said will D. Malippa became the owner in possession of site measuring 22 X 33 feet. The said D.Maliappa also executed registered sale deed and sold property measuring 12 X 35 feet and land in Sy.No.1/14 of Viswanatha Nagenahalli, Bangalore North taluk in favour of said Smt. Munniparasama. All these aspects clarified that the said will is acted upon, after the death of Yeliappa that D. Maliappa exercised his right and ownership over the said property bequeathed in his favor, pursuant to registered will dated 4/7/1962. Yeliappa demised during 1963. D. Maliappa also died on 29/9/2004 and left behind the first plaintiff his wife and second plaintiff his daughter as sole surviving legal heirs, Who have succeeded to the property of D.Maliappa. hence the plaintiffs are the absolute owners of property measuring 10 X 35 feet formed in Sy. No.1/14 situated at 6 O.S.No. 5147/2010 Vishwanath Nagenahalli, Kasaba Hobli Bangalore North Taluk and the said property is the schedule property.
3. When such is the case, the defendant who does not have any right, title and possession and enjoyment of the suit schedule property, attempted to interfere with the possession of suit schedule property of the plaintiff and illegally encroached upon schedule property and put-up illegal structures over the suit schedule property and has given it for rent in favour of others during 2006 after the death of the D.Maliappa. The trespass over the suit schedule property by the defendant and putting up construction are illegal and requires to be demolished. The plaintiffs sought for possession of the same and defendant kept on postponing the same with an ulterior motive. Ultimately during 2008, January, the defendant denied the ownership of the plaintiffs and asserted the ownership of the schedule property by creating and concocting 7 O.S.No. 5147/2010 documents. The same is illegal and requires interference by this court.
4. The defendant is powerful person in the locality, who is having men and material and has trespassed over the suit schedule property with malafide intention of knocking off the suit schedule property from the plaintiffs, taking undue advantage of their gender and their helplessness with the assistance of rowdy elements, by creating and concocting documents, to defeat the legitimate rights of the plaintiffs over the suit schedule property. The defendant is also attempting to encumber the same and attempting to alienate the same to enrich himself. The plaintiffs cannot prevent the illegal acts of the defendant without the order of this court. The plaintiffs are also entitled for damages at the rate of Rs.15,000/- per month from the date of suit till the defendant hands over the vacant possession of suit schedule property to the plaintiffs, As the same could 8 O.S.No. 5147/2010 have fetched the rents. The suit property is within the jurisdiction of BBMP and is not converted from agricultural to nonagricultural purpose hence the suit.
5. The cause of action for the suit arose during 2006, when the defendant put up illegal structures over the suit sale property, during 2008 when the defendant refused to hand over suit schedule property to the plaintiffs, during April 2010 when the defendant refused to reply for the legal notice sent by the plaintiffs' counsel and refused to hand over the vacant possession of the suit schedule property to the plaintiffs and on 11/7/2010 when the defendant attempted to alienate or encumber suit properties and subsequently within the Jurisdiction of this court. Hence seeks to decree the suit.
6. The defendant in pursuance of the summons has appeared before the court and has filed the written statement by denying and disputing the claim of the 9 O.S.No. 5147/2010 plaintiffs. In the written statement the defendant has contended that the plaintiffs have filed the false and frivolous suit against the defendant knowing fully well the facts alleged in the plaint are not true and the documents produced in support of the plaint allegations are created for the purpose of the suit.
7. It is contended that, before claiming any declaratory relief the plaintiffs should establish a right over the suit schedule property, but in the instant case the plaintiffs have suppressed the material facts and on false grounds the present suit is filed. It is further contended that the property bearing Sy.No.1/14 was acquired by the defendant under the family arrangement and memorandum of Panchayathi Parikath in the year 1992. Thereafter the defendant had put up the building in Sy.No.1/14 measuring 1½ guntas of Viswanatha Nagenahalli in the year 1993. Thereafter the defendant is in continuous possession and enjoyment of the property. 10
O.S.No. 5147/2010 It is further contended that second plaintiff's son one Mr. Nagaraj had filed a suit for injunction in O.S. No.5725/2006 against the defendant and defendant has filed detailed written statement in the said suit and further the plaintiffs have also issued legal notice dated 3/7/2006, illegally asserting their rights over the suit schedule property and kept quiet all these years and now the plaintiffs have falsely claiming the suit schedule property without any rights. The plaintiffs are very well known about the family partition between the defendant and husband of the plaintiff No.1 in the year 1992 and thereafter after the death of her husband of the plaintiff No.1, the plaintiffs have illegally claiming the rights of the suit schedule property and issued legal notice on 3/7/2006. But the present suit is filed on 26/7/2010 on false grounds, therefore the suit of the plaintiffs is hopelessly barred by limitation, on this ground alone the suit is liable to be dismissed 11 O.S.No. 5147/2010
8. The valuation of the suit is not correct, the court fee paid is highly insufficient in as much as the plaintiff ought to have paid the court fee and the present market value of the suit schedule property as on the date of suit, moreover the suit property is now comes within the jurisdiction of BBMP, admittedly plaintiffs are not in possession of suit schedule property in respect of which they have sought for declaration, possession and injunction, but valuation made by the plaintiffs is improper and not correct and court fee paid is not sufficient and suit cannot be proceeded without proper court fee computed on the present market value of the suit property. Therefore the plaintiffs have not valued the suit properly, hence an issue regarding non-payment of proper court fee is to be decided as a preliminary issue even before considering the merits of the case.
9. Therefore, there is absolutely no cause of action for the plaintiffs to maintain the suit, which fact 12 O.S.No. 5147/2010 the plaintiffs are fully aware of the suit filed only to coerce and harass the defendants and the suit is liable to be dismissed under the provisions of Order 7 Rule 11 of CPC.
10. Plaintiffs have no locus standi to institute the suit, the suit of the plaintiffs is frivolous, vexatious and same is filed with an intention to make wrongful gain and hold this defendant to ransom. The plaintiffs have not come before this court with clean hands and the plaintiffs is guilty of suppression of material facts and sought the relief of declaration on false grounds, and the suit is abuse of process of law. The Averment made in the plaint are bald, vague, lacks the particulars more so, when the cause of action for the suit is imaginary and invented, no material is placed by the plaintiff to substantiate the allegations made in the plaint.
11. It is denied that, the plaintiffs are the sole surviving legal heirs to the property of D.Maliappa. It is 13 O.S.No. 5147/2010 contended that one Mr. Dodda Hullurappa having 4 sons i.e., 1. D.Munivenkatappa, 2. D. Munegowdappa, 3. D.Muniyappa, 4. D. Maliyappa. After the death of Doddahullurappa the above said persons have divided and partitioned the family properties and all brothers are residing separately. Accordingly, the said D. Maliappa having only one daughter and he has no male issues and said D.Maliyappa requested his brother D.Muniyappa and sought for adoption of his one of the male child, and as per the family tradition and customs in the presence of well-wishers, elders and family members the said D.Maliyappa and his wife have adopted the defendant under the adoption deed dated 3/11/1970, When the defendant was six years old, thereafter the defendant was under the care and custody of the said D.Maliappa and plaintiff No.1. The said D. Maliyappa has performed marriage of the defendant. Thereafter due to some misunderstanding between the female members of the 14 O.S.No. 5147/2010 family for the sake of living better life D.Maliyappa had made family arrangements and memorandum of Panchayath parikath was executed by D.Maliyappa in respect of joint family properties between the defendant and on behalf of wife and his daughter in the presence of Panchayathdars. The said family arrangements held on 11/6/1992. According to the said family arrangements the properties bearing Sy. No.55 measuring 36 guntas situated at Nagavara Village, Kasaba Hobli, Bangalore North Taluk. The Sy. No.1/5 measuring 7 ½ guntas and Sy.No.1/14 measuring 1½ guntas. The said both properties are situated at Vishwanathanagenahalli, Kasaba Hobli, Bangalore North Taluk, Bangalore. The above said three properties were allotted by D.Maliyappa in favour of the defendant as per the family arrangement.
12. The other various family properties were retained by D.Maliappa and plaintiff No.1 and 2 as per the family arrangements the properties were allotted in 15 O.S.No. 5147/2010 respect of parties, they are in possession and enjoyment of their respective properties all these years, without any let or hindrance from anybody. This being the position of the said Maliappa died on 29/9/2004, and thereafter the plaintiffs and children of plaintiff No.2 have started to create problems on the defendant and they have taken undue advantage of innocence of the defendant and trying to create documents in their names in respect of the properties allotted in the name of the defendant, the second plaintiff's son one Nagaraj has filed a suit for injunction against defendant in O.S.No.5725/2006 in respect of Sy.No.1/5 measuring 7½ guntas of Viswanatha Nagenahalli and now the plaintiffs have filed the present suit in respect of Sy.No.1/14 measuring 1½ guntas. That the three properties allotted through the family arrangement deed in favour of the defendant but after the death of D.Maliappa, the plaintiff and children of plaintiff No.2 have given all sorts of trouble only for the 16 O.S.No. 5147/2010 purpose of knock off the property allotted in favour of defendant.
13. The plaintiffs have already filed suit for partition in O.S.No.5396/2001 against the plaintiffs and another, and the said suit is still pending. The defendant is the adopted son of D.Maliappa and he was allotted the suit property in the year 1992 and thereafter with the consent of D.Maliappa the defendant had constructed the building in the suit property and thereafter the defendant is in possession and enjoyment of the said property. Therefore, the allegations made by the plaintiff that the defendant has no rights over the suit property and illegally encroached and put-up constructions over the suit property and he is given it for rent during the year 2006 etc., are absolutely false and deliberate statement made by the plaintiff. The defendant not only constructed the building in respect of property allotted by D.Maliappa and he has also constructed another portion of same 17 O.S.No. 5147/2010 Sy.No.1/14, but now the plaintiffs on ill will motivation and for the purpose of taking revenge against the defendant plaintiffs have created false and vexatious litigations. The plaintiffs are well aware that, the defendant is contributed and earning with deceased D.Maliappa with the joint family till 1992 and thereafter, for the sake of living better life the deceased D.Maliyapa had partitioned and allotted the above said properties including the suit property in favour of defendant, but now the plaintiffs and children of plaintiff No.2 are making hectic efforts to knock off the defendant's property and created all this litigations. The plaintiffs have no manner of right, title and interest in respect of suit property bearing No.1/14 and the said property was allotted by D.Maliappa in favour of defendant and the defendant has put up buildings and he is in possession and enjoyment of property since from 1993 onwards. The plaintiff is duty to bound as a dutiful wife and daughter 18 O.S.No. 5147/2010 to abide by partition/family arrangement made by deceased D. Maliappa. Therefore, it is clear that the defendant has not trespassed over the property and put up any illegal construction over the suit property as alleged by the plaintiffs. Further the allegations made by the plaintiff that, plaintiffs sought for possession and kept postponing the same and ultimately during the year 2008 January, the defendant denied the ownership etc., are absolutely false and deliberate statements made by the plaintiffs. In the legal notice dated 3/7/2006 issued against the defendant stating that, during the year 2003 on Sankranti festival day the defendant illegally trespassed over the property and claiming rights over the property etc., but now in para 3 of the plaintiffs are made a contradictory statement. Therefore, the allegations made by the plaintiffs are false and incorrect, even from legal notice dated 3/7/2006, the suit has not filed within 3 years and therefore the suit of the plaintiff is hopelessly 19 O.S.No. 5147/2010 barred by limitation.
14. The suit property was allotted in favour of defendant and put the defendant in possession of suit property in the year 1992. But after the death of D.Maliappa, the plaintiffs and children of the plaintiff No.2 have created all these litigations and harassed defendant in all possible ways. As already stated the plaintiffs are financially sound and influential person and the husband of plaintiff No.2 is very influential person in the locality and now they have taken undue advantage of the innocence of the defendant have creating all this litigations and further plaintiffs have made a false and deliberate allegations that, the defendant is a powerful person and having men and material and trespassed into the properties, and creating documents to defeat the legitimate rights of the plaintiffs over the suit property etc., are absolutely false and deliberate statement made by the plaintiffs. The other allegations made by the 20 O.S.No. 5147/2010 plaintiffs that, they have entitled for damages of Rs.15,000/- per month till handover the possession etc., is baseless, irrelevant and the plaintiffs are not entitled for any such reliefs as claimed by them, there is no cause of action for filing the suit and the plaintiffs should be directed to value the suit in the light of the prayers made and proper court fee or otherwise suit is liable to be dismissed, with these and other contentions the defendant seeks to dismiss the suit.
15. On the basis of these pleadings the following issues were framed.
1) Whether the plaintiffs prove their title over the suit schedule property?
2) Whether the defendant proves that the property bearing Sy. No.1/14 was acquired by him in family arrangement and memorandum of Panchayathi Parikath1992?
3) Whether the plaintiffs prove the cause of 21 O.S.No. 5147/2010 action?
4) Whether the court fee paid is sufficient?
5) Whether the plaintiffs are entitled for damages?
6) What order or decree?
16. On the basis of these pleadings the following additional issue was framed.
1) Whether the defendant proves that he is the adopted son of D.Maliyappa under the adopted deed dated 03-11-1970?
17. To substantiate plaint averment GPA holder of plaintiff No.1 Mr.R.Nagaraj examined as P.W.1 and Ex.P.1 to 37 documents are marked. Ex.P.1 is general power of attorney, Ex.P.2 is certified copy of partition deed dated 09-03-1962, Ex.P.3 & 4 are RTCs, Ex.P.5 is copy of notice dated 14-04-2010, Ex.P.6 is unserved postal cover, Ex.P.7 is under certificate of posting, Ex.P.8 is RPAD receipt, Ex.P.9 is certified copy of the sale deed dated 14- 22 O.S.No. 5147/2010 08-1968, Ex.P.10 is certified copy of the sale deed dated 12-06-2003, Ex.P.11 is certified copy of the sale deed dated 10-12-2007, Ex.P.12 is sale deed dated 23-09- 2007, Ex.P.13 (Ex.P.12 page No. 3 is wrongly marked as Ex.P.13), Ex.P.13(a) is genealogical tree extract, Ex.P.14 is RTC, Ex.P.15 is MR, Ex.P.16 is BMTC endorsement, Ex.P.17 is BMTC particulars, Ex.P.18 & 19 are voters lists pertaining to family of the defendant, Ex.P.20 is death certificate of D. Maliyappa, Ex.P.21 is certified copy of the will dated 09-03-1962, Ex.P.22 is revocation of will dated 09-03-1962 registered on 04-07-1962, Ex.P.23 is will dated 04-07-1962, Ex.P.24 is certified copy of the judgment in OS No.5725/2006, Ex.P.25 is certified copy of evidence in O.S.No. 5725/2006, Ex.P.26 is certified copy of complaint in CC No.41715/2010, Ex.P.27 is certified copy of FIR, Ex.P.28 is certified copy of the charge sheet, Ex.P.29 is general power of attorney dated 30-08-1992, Ex.P.30 is certified copy of the affidavit, 23 O.S.No. 5147/2010 Ex.P.31 is gift deed dated 08-12-1992, Ex.P.32 is certified copy of the writ petition order dated 15-07-2019 in W.P.No.39563/2014, Ex.P.33 is certified copy of the FSL report, Ex.P.34 is certified copy of the disposition of Smt. Narayanamma in OS.No.5725/ 2006, Ex.P.35 is certified copy of plaint in O.S.No.5396/2010, Ex.P.36 is certified copy of the order sheet in OS.No.5396/2010, Ex.P.37 is certified copy of order sheet in C.C.No. 41715/2010.
18. From defendant side defendant himself is examined as D.W.1 and one Mr. Rajendra is examined as D.W.2 and Smt. Lakshamma as D.W.3 and Jayaramaiah as D.W.4 and Ex.D.1 to 9 are marked. Ex.D.1 is legal notice dated 03-07-2006, Ex.D.1 is RTC extract (Ex.D.1 series is wrongly given twice due to mistake), Ex.D.2 is adoption deed dated 03-11-1970, Ex.D.3 is partition dated 11-06-1992, Ex.D.4 is demand register extract, Ex.D.5 is tax paid receipt, Ex.D.6 is sanction plan, Ex.D.7 is electricity bills, Ex.D.8 are BESCOM receipts, 24 O.S.No. 5147/2010 Ex.D.9 is BWSSB bill.
19. Heard the arguments and perused the records.
20. My finding on the above issues are :-
Issue No.1: In the affirmative Issue No.2: In the negative Issue No.3: In the affirmative Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: As per final order, for the following:-
21. My finding on the above additional issue is :-
Additional issue No.1: In the negative REASONS
22. Issues No.1 and 2 and additional issue No.1;- These issues are taken together for common discussion as these issues are interwoven.
23. The plaintiffs have filed this suit for the relief of declaration to declare that they are the absolute owners of the suit schedule property, and for vacant 25 O.S.No. 5147/2010 possession of the suit schedule property, and for mandatory injunction for demolition of illegal construction made by the defendant in the suit schedule property and for mesne profits at the rate of 15,000/- per month from the date of suit till the date of vacant possession.
24. The plaintiffs have sought for the above said relieves on the ground that two guntas of land in survey number 1/14 of Vishwanath Nagenahalli was originally belonged to one Mr. Doddamaliyappa and the same was partitioned on 9/3/1962, in the said partition the said property was fallen to the share of Yeliappa S/o Doddamaliyappa. The said Yeliappa has executed a registered will dated 9/3/1962 bequeathing ½ guntas to D.Muniyappa and 1 ½ guntas to D.Maliyappa. later on it was canceled and by executing a will dated 4/7/1962, in the new will property measuring 22X33 feet of Sy.No.1/14 was bequeathed to D.Maliyappa and ½ 26 O.S.No. 5147/2010 guntas to D.Muniyappa. The plaintiff No.1 is the wife of D.Maliyappa and plaintiff No.2 is the daughter of D.Maliyappa, have further contended that, during 2006 the defendant has encroached the suit schedule property which is part and parcel of the property measuring 22X33 feet bequeathed by the Yeliappa in favor of D.Maliyappa. the plaintiffs have demanded for vacant possession from the defendant even by issuing the legal notice and orally, but the defendant has not vacated, hence seeks to decree the suit.
25. Per contra, the defendant who has filed the written statement to contest the suit, has taken specific stand that, he is the adopted son of D.Maliyappa and plaintiff No.1, & he got the suit property in the family partition/family arrangement on 11.6.1992, and further contended that the suit is barred by limitation and the suit is not valued properly and with other contentions seeks to dismiss the suit.
27
O.S.No. 5147/2010
26. There is no any dispute that the plaintiff No.1 is the wife and plaintiff No.2 is the daughter of D.Maliyappa and it is also not in dispute that the defendant is in possession of the suit property. it is not in dispute that the suit property is part and parcel of the Sy.No.1/14 of Vishwanatha Nagenahalli. It is not in dispute that D.Maliyappa got the property under the will dated 4.7.1962, even defendant cannot dispute the source of title of D.Maliyappa because he also tracing his title through D.Maliyappa as adopted son,
27. In view of the admissions and contentions taken by the defendant that he being the adopted son of deceased D.Maliyappa and plaintiff No.1, got the property in the family arrangement dated 11.6.1992, the burden is heavily upon the defendant to prove that he is the adopted son of deceased D.Maliyappa and plaintiff No.1, since his adoption is denied and along with the family partition/arrangement dated 11.6.1992. 28
O.S.No. 5147/2010
28. In this regard let me examine first the relevant provisions of the Hindu adoption and maintenance Act, since the parties to the suit are governed by the said Act, as the adoption is in dispute.
5. Adoptions to be regulated by this Chapter.―(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
6. Requisites of a valid adoption.― No adoption 29 O.S.No. 5147/2010 shall be valid unless--
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
7.Capacity of a male Hindu to take in adoption.―Any male Hindu who is of sound mind and is not a minor has the capacity to takes on or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced 30 O.S.No. 5147/2010 the word or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Explanation.―If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.
9.Persons capable of giving in adoption. ―(1)No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
[(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:
Provided that such right shall not be exercised 31 O.S.No. 5147/2010 by either of them save with the consent of the other unless one of them has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.] [(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.] (5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose 32 O.S.No. 5147/2010 given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation.―For the purposes of this section―
(i) the expressions "father" and "mother" do not include an adoptive father and an adoptive mother;
[(ia) "guardian" means a person having the care of the person of a child or of both his person and property and includes ―
(a) a guardian appointed by the will of the child's father or mother, and 33 O.S.No. 5147/2010
(b) a guardian appointed or declared by a court;and]
(ii) "court" means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
12.Effects of adoption.―An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
Provided that―
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; 34
O.S.No. 5147/2010
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
From plain reading of the above provisions it makes clear that to claim the property as adopted son, adoption must be valid and in accordance with the above provisions.
29. In this case the defendant has produced certified copy of the adoption deed dated 3.11.1970 to prove his adoption, but, first of all he has not produced the original adoption deed and he has not set stage for 35 O.S.No. 5147/2010 production of secondary evidence. Admittedly the said adoption deed is not a registered document. Marking of this adoption deed in O.S.5396/2010 was challenged by plaintiff No.1 and one Mr. Nagaraj, who are the defendants in that suit, before the Hon'ble High court of Karnataka by filing writ petition in No.39563/2014, which is disposed of on 15/7/2019, wherein it is held that at para 5, 'the adoption deed a copy whereof is at annexure D to the writ petition in so many words speaks of not only creation of interest in the immovable property of the adoptive family but extinction of adopted son's interest in the givers family; such a document is compulsory registrable under the provisions of the Section 17(1) of the registration Act. 1908; the said document having not been so registered, the court below is not correct in holding to the contrary and thus concluding that 36 O.S.No. 5147/2010 the same is admissible in evidence', and in the order portion 'in the above circumstances, this writ petition succeeds; the impugned order holding the document admissible otherwise than for the collateral purpose is bad; further in the absence of specification of what the collateral purpose is, these documents shall not be admitted to evidence till after the said purpose is specified'.
It is the only document relied upon by the defendant to prove that he is the adopted son of D.Maliyappa, when the said document is not a registered document, in view of the observation of the Hon'ble High Court of Karnataka in the above said writ petition, the adoption deed produced at Ex.D.2 cannot be looked into.
30. As per the Section 5.(2) of Hindu Adoptions and Maintenance Act a void adoption does not create any right in the adoptive family. Herein this case, since there 37 O.S.No. 5147/2010 is no valid registered adoption deed, the adoption claimed by the defendant has to be treated as void one and hence the defendant cannot claim any right over the suit property as a adopted son.
31. That apart, as per Section 12 of the Hindu adoptions and maintenance act, the child who is given in adoption loses his right over the properties of the natural parents, but herein this case, the defendant has succeeded the properties from his natural parents. Defendant along with others have sold the property under Ex.P.10 sale deed dated 12.6.2003 to Trishul developers, in this sale deed defendant's name is mentioned as M.Yelegowda S/o D.Muniyappa- who is the natural father of the defendant. In the sale deed dated 10.12.2007 which is at Ex.P.11 the defendant along with others has purchased the property from Smt Manjunla and others, in this sale deed also father name of the defendant is shown as D.Muniyppa, who is the natural 38 O.S.No. 5147/2010 father of the defendant. In the Ex.P.12 sale deed dated 23.9.2009, defendant along with others have sold the property to Sajjan Kumar Garg, in this sale deed also the father of the defendant is mentioned as D.Muniyappa- who is the natural father. In Ex.P.15 M.R. also the natural father name of the defendant is shown. And most important document is Ex.P.17, which is the particulars issued by the BMTC under RTI. Defendant is admittedly employee of BMTC, in his service records as per Ex.P.17, his natural father and mother name have been mentioned. Even in the voter list name of the defendant is reflected along with his family members and natural father name is mentioned. In Ex.P.29 GPA also natural father name of defendant is mentioned. In Ex.P.25 which is the certified copy of the deposition of the defendant in O.S.5725/2006 natural father name is mentioned. All these going to establishes that the adoption claimed is not in accordance with the law governing the adoption. 39
O.S.No. 5147/2010
32. As per the Section 7 of the Hindu adoption and maintenance Act, the consent of the wife is very much necessary to take the adoption, but herein this case, the signature of the plaintiff No.1 over the Ex.D.2 is not appearing. Plaintiff No.1 was examined as witness in O.S.5725/2016, which is produced at Ex.P.34, in that she has stated that defendant is not adopted by her, the same has been admitted by the defendant during cross examination-
'it is true to suggest that in the evidence given by me in O.S.5725/2016 which is marked at Ex.P.25, I have deposed that ' ವವ.ಸವ. ೨ ರ ಸವಕಕ ಮವಡರರವವದರ ಗಗಗತರತ , ವವ.ಸವ.೨ ರ ಡ.ಮಲಯಪಪ ಹಗಹಡತಯವಗದರದ ಅವಳಳ ವವದಯಹದಗಗ ವವಸವವದವದಳ ಗ ಎನರನವವದರ ನಜ' it is further true that in the said deposition I have also deposed 'ತವವವ ಎಲಗಲಗಗಡನನರನ ದತತಕ ತಗಗಗದರಕಗಗಹಡಲಲ ಹವಗಗ ಸದರ ಎಲಗಗಗಡ ದತತಕ ಮಗನಲಲ ಎಹದರ ವವದ ಸವಕ ಹಗಲಳದವದಳ ಗ ಎನರನವವದರ ನಜ' 40 O.S.No. 5147/2010 From this it is clear that there was no consent of plaintiff No.1 for the alleged adoption. Hence it is not in confirmation with Section 7 of the Hindu Adoption and Maintenance Act.
33. It is alleged that, the adoption deed is fabricated by the defendant, in this regard they have produced some important documents. It is admitted that the plaintiffs have filed the private complaint against the defendant for fabrication of the documents, the same was referred to the investigation. Upon the investigation police have filed the charge sheet, these documents have been produced at Ex.P. 26, 27, 28, 37. During the investigation the concerned police have referred the disputed and admitted signature of the D.Maliyappa and disputed/alleged fabricated documents i.e., adoption deed dated 3.11.1970 and panchyathi parikath dated 11.6.1992 to the FSL, and FSL officials have given opinion that "signature of Maliyappa are imitation 41 O.S.No. 5147/2010 forgery". So these documents also fortifies that there is no valid adoption deed in favor of defendant.
34. When the defendant is not a adopted son, naturally he is not entitle for any properties of D.Maliyappa. but the defendant has relied upon the panchayathi parikath, admittedly in the said document partition is effected and it is not an agreement for partition, hence it requires the registration, undoubtedly the panchayathi parikath which is produced at Ex.D.3 is unregistered one and as per the findings of the hon'ble High court in W.P.39563/2014 referred to above, this document cannot be looked into. And moreover there is a FSL report that signature of the D.Maliyappa over panchayathi parikath is imitation forgery. Under these circumstances, the defendant not being adopted son not entitled for any property of D.Maliyappa, and plaintiffs being the class I heirs of D.Maliyappa are automatically entitled for the suit property as absolute owners, hence 42 O.S.No. 5147/2010 the issue No.1 is answered in affirmative and issue No.2 is answered in negative and additional issue No.1 is answered in negative.
35. Issue No.3;- Admittedly the plaintiffs are claiming the suit property on the basis of the inheritance, as class I heirs of D.Maliyappa who died on 29.9.2004. admittedly defendant is in possession of the suit property claiming to be the adopted son and got the property under the family arrangement, both these contentions have been negatived by this court while answering the issue No.1 & 2 and additional issue No.1. The specific allegation of the plaintiffs is that suit property is encroached by the defendant during 2006 after the death of D.Maliyappa, when adoption and pachyathi parikath have been negatived by this court, then certainly it is deemed that the defendant is in illegal occupation of the suit property, hence there is cause of action of the plaintiffs to recover the same. Hence this issue is 43 O.S.No. 5147/2010 answered in affirmative.
36. Issue No.4;- The plaintiffs have filed this suit for the relief of declaration to declare them as owners of the suit schedule property and for possession and for mandatory injunction of demolition of the illegal construction made by the defendant and for mesne profit on such other reliefs. Plaintiffs have paid court fee of Rs 23,650/- by valuing under Section 24(a) of Karnataka Court Fee and Suit Valuation Act at Rs 3,50,000/-. There is no any document before the court that the suit property is converted. Except taking the defence only for the sake of contest the defendant has not produced any document before the court to falsify the payment of court fee. And moreover the suit property is measuring only 10X35 feet. Hence the issue No.4 is answered affirmative.
37. Issue No.5;- Possession of the suit property is admitted by the defendant, and he has no title over the suit property, that means he is in illegal possession. the 44 O.S.No. 5147/2010 defendant during the cross examination has categorically admitted which is at page 31, para 31, 'in the suit property building is existing, consisting of ground, first and second floor. Entire property is leased out and I am getting monthly rent of 25,000/-'. This admission clearly establishes that plaintiffs are entitled to damages, hence this issue answered in affirmative.
38. During the course of arguments L/c for plaintiff has relied upon the decision rendered by the Hon'ble Supreme Court in Civil Appeal No. 6875/2008 in the case of Bhagwat Sharan (dead Thr. Lrs) Vs Purushotam and others.
This is with respect to the will, since the other side has argued that the will dated 04-07-1962 is not proved.
The decision relied upon by the plaintiff is 45 O.S.No. 5147/2010 applicable to the facts on hand.
39. During the course of argument L/c for defendant has relied upon the decision reported in (2004)2 KCCR 813 in the case on Naganna Vs Shivanna. This decision is not applicable to the facts on hand, in view of the decision by the Hon'ble High Court of Karnataka in W.P.No. 39563/2014 which is produced at Ex.P.13, the said decision is between the same parties on the adoption deed and partition deed, hence the said decision cannot be considered.
40. Apart from the above said decision L/c for defendant has relied upon another decision reported in (1937) AIR (Lahore) 69, but the said decision is not applicable to the facts on hand, since the defendant is also claiming the property through D.Maliyappa as adopted son and more over the said will dated 04-07-1962 is not in dispute and the said will has been acted upon, under the said circumstance the said 46 O.S.No. 5147/2010 decision is not helpful to the defendant.
41. Issue No.6;- For the above said reasons I proceed to pass the following;
ORDER Suit of the plaintiffs is hereby decreed with costs, Plaintiffs are declared as absolute owners of the suit property, consequently the defendant is directed to handover the vacant possession of the suit property by demolishing the existing building within 90 days from this day, If the defendant fails to handover vacant possession of the suit property after demolishing the existing building, then the plaintiffs are at liberty to take possession of the suit property through process of the court and demolish the existing building at the cost of the defendant. 47
O.S.No. 5147/2010 Further plaintiffs are entitled for mesne profit of Rs. 25,000/- per month from the date of suit till the date of possession. plaintiffs are liable to pay the court fee on the mesne profit from the date of suit, till as on the date of judgment as per Section 42 (1) of Karnataka Court Fee and Suit Valuation Act.
Till payment of court fee under Section 42(1) drawing of decree is deferred, further office is directed to draw the decree once the payment of court fee under Section 42(1) is paid by the plaintiff, without further order from the court. Draw up decree accordingly.
(Dictated to the Stenographer on computer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 27 th day of January, 2022.) ( SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 48 O.S.No. 5147/2010 SCHEDULE All that piece and parcel of the property 10X35 feet of land bearing Sy.No. 1/14 of Viswanthanaganahalli, Kasaba hobli, Bangalore north taluk, totally measuring 350 sq.ft. and bounded on:
East by: Property of Muniparasamma, West by: Property of Muniyappa, North by: Property of Doddamuniyappa son of Hullurappa, now property of Muniparasamma South by: Road.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: R.Nagaraj
(b) Defendant's side :
D.W.1: Yele Gowda
D.W.2: Rajendra
D.W.3: Lakshamma
D.W.4: Jayaramaiah
49
O.S.No. 5147/2010
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: General power of attorney
Ex.P.2: Certified copy of partition deed
dated 09-03-1962
Ex.P.3 RTC's
& 4:
Ex.P.5: Copy of notice dated 14-04-2010
Ex.P.6: Unserved postal cover
Ex.P.7: Under certificate of posting
Ex.P.8: RPAD receipt
Ex.P.9: Certified copy of the sale deed
dated 14-08-1968
Ex.P.10: Certified copy of the sale deed
dated 12-06-2003
Ex.P.11: Certified copy of the sale deed
dated 10-12-2007
Ex.P.12: Sale deed dated 23-09-2007
Ex.P.13: (Ex.P.12 page No. 3 is wrongly
marked as Ex.P.13)
Ex.P.13 Genealogical tree extract
(a):
Ex.P.14: RTC
Ex.P.15: MR
Ex.P.16: BMTC endorsement
Ex.P.17: BMTC particulars
Ex.P.18 Voters lists pertaining to family of
& 19: the defendant
Ex.P.20: Death certificate of D. Maliyappa
Ex.P.21: Certified copy of the will dated
09-03-1962
Ex.P.22: Revocation of will dated
09-03-1962 registered on
04-07-1962
50
O.S.No. 5147/2010
Ex.P.23: Will dated 04-07-1962
Ex.P.24: Certified copy of the judgment in OS No.5725/2006 Ex.P.25: Certified copy of evidence in O.S.No. 5725/2006 Ex.P.26: Certified copy of complaint in CC No.41715/2010 Ex.P.27: Certified copy of FIR Ex.P.28: Certified copy of the charge sheet Ex.P.29: General power of attorney dated 30-08-1992 Ex.P.30: Certified copy of the affidavit Ex.P.31: Gift deed dated 08-12-1992 Ex.P.32: Certified copy of the writ petition order dated 15-07-2019 in W.P.No.39563/2014 Ex.P.33: Certified copy of the FSL report Ex.P.34: Certified copy of the disposition of Smt. Narayanamma in OS.No.5725/ 2006 Ex.P.35: Certified copy of plaint in O.S.No.5396/2010 Ex.P.36: Certified copy of the order sheet in OS.No.5396/2010 Ex.P.37: Certified copy of order sheet in C.C.No. 41715/2010
(b) Defendants side :
Ex.D.1: Legal notice dated 03-07-2006 Ex.D.1: RTC extract (Ex.D.1 series is wrongly given twice due to mistake) Ex.D.2: Adoption deed dated 03-11-1970 Ex.D.3: Partition dated 11-06-1992 Ex.D.4: Demand register extract 51 O.S.No. 5147/2010 Ex.D.5: Tax paid receipt Ex.D.6: Sanction plan Ex.D.7: Electricity bills Ex.D.8: BESCOM receipts Ex.D.9: BWSSB bill XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.