Bangalore District Court
Sri.D.C.Nagaraj vs Channarayappa on 28 January, 2017
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 28th Day of January, 2017.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No. 5 0 7 1 / 2008
Plaintiff Sri.D.C.Nagaraj,
S/o. Channarayappa,
Aged about 42 years,
Residing at Chikkadevasandra,
K.R.Puram, Bengaluru - 560 036.
by Sri.S.Venkatesh, Advocate.
Vs.
Defendants 1. Channarayappa,
S/o. Chikkabyrappa,
Since deceased, by L.R.:
1(a) Smt.lakshmamma,
Aged about 70 years,
w/o.late Channarayappa,
r/at No.135, Chikkadevasandra
Main Road, Chikkadevasandra,
K.R.Puram, Bengaluru-56003l6.
2. Sri.Anjinappa,
S/o. Chikkabyrappa,
Aged about 47 years,
r/at No.135, Chikkadevasandra
Main Road, Chikkadevasandra,
Bengaluru- 560 036.
3. Smt.Nagarathna,
W/o. Srinivas,
D/o. Channarayappa,
Aged about 39 years,
2 O.S.No.5071/2008
Residing at Water Manjanna Building,
1st Main, 1st Cross,
Behind Mahadevapura B.B.M.P Office,
Lakshmisagara, Bengaluru- 560 048.
D1(a)-by Sri.S.N.Ramaprasad, Advocate.
D2 - by Sri.G.Veerendra Babu, Advocate.
D3-by Smt.M.Sumithra, Advocate.
Date of institution of suit 31-07-2008
Nature of the suit Partition and separate
possession
Date of commencement of 04-11-2011
recording of evidence
Date on which Judgment 28-01-2017
was pronounced
Total duration Days Months Years
27 05 08
JUDGMENT
This suit filed by the plaintiff is for partition and separate possession of his 1/3rd share in the suit property, together with costs and any other reliefs, which Court deems fit, in the circumstances of this case.
2. The brief facts of the plaint averments are that, defendants No.1 to 3 respectively are, father, elder brother and sister of the plaintiff and that, the suit property is joint ancestral property of plaintiff and defendants 1 to 3 and that, defendant No.1 being father of plaintiff and defendants No.2 and 3, has died and defendant No.1(a), being wife of defendant No.1, is legal representative of defendant No.1 and that, suit property is joint family property 3 O.S.No.5071/2008 of plaintiff and all the defendants and that, defendants 1 and 2 are now trying to alienate the suit property behind the back of plaintiff, by taking advantage of entry of name of defendant No.1 in the suit property as kartha of the joint family of plaintiff and defendants and that, defendant No.1 has refused and denied to give share to the plaintiff in the suit property on demand. Hence, this suit for partition and separate possession of his 1/3rd share in the suit property, together with costs of this suit.
3. This suit is opposed by the defendants 1 to 3, by filing their written statement.
4. Defendants 1 and 2 have jointly filed their written statement, wherein they admit the relationship between plaintiff and defendants and deny that, the suit property is joint ancestral property of plaintiff and defendants and contend that, defendant No.1 has given share in the suit property to the plaintiff and defendant No.2, under separate gift deeds dated 22-12-2004 and 16-8-2007 respectively and that, plaintiff has sold his share given under the gift deed, in favour of Keshava Murthy, under registered sale deed dated 13-7-2007 and now, the plaintiff is claiming share in the suit property, which was given under registered gift deed to defendant No.2, by defendant No.1, under registered gift deed dated 16-8-2007 and as there is already a partition under Panchayat Parikath 4 O.S.No.5071/2008 Vibhaga Pathra (Partition Deed) dated 13-7-2007, the plaintiff has no share in the suit property. On these grounds, it is prayed for dismissal of this suit, with exemplary costs.
5. Defendant No.1(a) has also filed her written statement, after death of defendant No.1, wherein she admits the relationship between plaintiff and defendants and contends that, the plaintiff was already given share in the suit property by defendant No.1, during his lifetime, under registered gift deed dated 22-12-2004, as plaintiff has insisted for his share, in order to start hotel business and that, after taking said property under gift deed as his share in the joint family properties of plaintiff and defendants, plaintiff has sold the said property given to him under gift deed dated 22-12-2004 in favour of Keshava Murthy, under registered sale deed dated 13-7-2007 and thus, the plaintiff, though taken his share in the suit property, is now again claiming the share in the suit property, which is given by defendant No.1 in favour of defendant No.2, under gift deed dated 16-8-2007. On these grounds, she prays for dismissal of this suit with costs.
6. Defendant No.3 files her written statement, wherein she contends that, suit property is joint ancestral property of plaintiff and defendants 1 to 3 and defendant No.1(a) is legal representative of deceased defendant No.1 and denies that, 5 O.S.No.5071/2008 defendant No.1 has given cash, gold and other ornaments at the time of her marriage in lieu of her share and contends that, she is entitled to 1/4th share in the suit property and prays for awarding her 1/4th share in the suit property.
7. On the basis of these rival contentions taken by both the parties, following Issues are framed:
1. Whether the plaintiff proves that suit property is the joint family property of plaintiff and defendants?
2. Whether the plaintiff is entitled for a share in the suit property?
3. Whether the defendants prove that, defendant No.1 had validly executed registered gift deed dated 15-8-2007 about suit property in favour of defendant No.2 ?
4. Whether the defendants prove partition dated 13-7-2007 between plaintiff and defendants?
5. Whether plaintiff is entitled for mesne profits?
6. What Decree or Order?6 O.S.No.5071/2008
8. The plaintiff, to prove his case, examined himself as P.W.1 and relied upon 18 documents marked as Exs.P1 to P18 and closed his side.
The Defendants examined power of attorney holder of defendant No.2, defendant No.1(a), defendant No.3 and two other witnesses as D.W.1 to D.W.5, respectively and relied upon 24 documents marked as Exs.D1 to D24 and closed their side.
9. Heard arguments of Learned Counsels for both the parties.
10. My answer to the above Issues are as under:
Issue No.1 - in the Affirmative; Issue No.2 - in the Affirmative; Issue No.3 - in the Affirmative; Issue No.4 - in the Affirmative; Issue No.5 - in the Negative;
Issue No.6 - as per Final Order below; for the following:
Reasons
11. The relationship between the parties is admitted and it is also an admitted fact that, defendant No.1 has died during pendency of suit and therefore, defendant No.1(a), being wife of deceased defendant No.1, is brought on record as legal representative of deceased defendant No.1 and that, suit property is ancestral property of family of plaintiff and defendants 1 to 3.
7 O.S.No.5071/200812. Issue Nos. 1 and 2 : For the sake of convenience and to avoid repetition of facts and in view of the fact that, these Issues are inter-linked and inter-connected with each other, these two Issues are taken-up together for common consideration.
13. The plaintiff contends that, suit property is joint ancestral property of plaintiff and defendants and that, plaintiff has got 1/3rd share in the suit property and that, defendant No.1, being kartha of joint family of plaintiff and defendants, is now trying to alienate suit property in collusion with defendant No.2 and by defeating the share of the plaintiff in the suit property and that, defendants have refused and denied to give share to the plaintiff on demand.
14. To substantiate his contention, the plaintiff has examined himself as P.W.1, who has reiterated the same facts in his evidence.
15. In order to substantiate his contention, plaintiff has further relied upon Exs.P2 to P5, which are:
Ex.P2 - Khata extract of suit property, showing the name of grand father of plaintiff and defendant No.2, in respect of suit property;8 O.S.No.5071/2008
Ex.P3 -Tax paid receipt of suit property, standing in the name of defendant No.1;
Ex.P4 - Demand Register extract of suit
property, standing in the name of
plaintiff's father;
Ex.P5 - Khata Certificate of suit property, standing in the name of plaintiff's father.
16. On the other hand, the defendant No.2 contends that, there is already a partition in respect of joint family properties of plaintiff and defendants 1 to 3 and accordingly, a Panchayat Parikath Vibhaga Pathra (Partition Deed), is executed on 13-7-2007 giving property No.137 of Devasandra Village, by defendant No.1 to defendant No.2 and further, suit property is given to defendant No.2 by defendant No.1, as his share, under gift deed dated 16-8-2007 and that, plaintiff has already taken his share in the joint family properties of plaintiff and defendants under gift deed dated 22-12-2004 executed by defendant No.1 in favour of plaintiff, for the purpose of running hotel business and that, plaintiff, instead of running hotel business as stated by him, he has sold the property given to him under gift deed Dated:22-12-2004, in favour of Keshava Murthy, i.e., Site No.101 of CMC Khata No.54 of Chikkadevasandra Village and in view of taking away his share under gift deed dated 22-12-2004 by 9 O.S.No.5071/2008 plaintiff, from defendant No.1 and the sale of said property in favour of Keshava Murthy, by plaintiff, under registered Sale Deed Dated:13-7-2007, the plaintiff has taken away his share and the same is reiterated in Panchayat Parikath Vibhaga Pathra (Partition Deed) dated 13-7-2007 and in view of taking his share in the suit property, he cannot again claim for partition and separate possession of his share in the suit property and that, suit property is given as a share under registered Gift Deed Dated:
16-8-2007 executed by defendant No.1 in favour of defendant No.2, in respect of suit property.
17. In support of their contention, power of attorney holder of defendant No.2 and defendant No.1(a) are respectively examined themselves as D.W.1 and D.W.2 and relied upon Exs.D1 to D3, which are:
Ex.D1 - Panchayat Parikath Vibhaga Pathra (Partition Deed) dated 13-7-2007, giving property No.137 of Devasandra Village to defendant No.2;
Ex.D2 - certified copy of Gift Deed dated 22- 12-2004 executed by defendant No.1 in favour of plaintiff in respect of property-
Site No.101, CMC Khata No.54 of
Chikkadevasandra.
10 O.S.No.5071/2008
Ex.D3 - Copy of Sale Deed dated:13-7-2007 executed by plaintiff in favour of D.P.Keshamurthy in respect of Site No.101 of CMC Khata No.54 of Chikkadevasandra Village.
18. The plaintiff, who is examined as P.W.1, admits in his cross-examination that, "I have seen the document shown to me. It is Ex.D1. I identify my signature in Ex.D1. It is Ex.D1(a). It is true that my father has executed gift deed dated 22-12-2004 in my favour. Now I see it is Ex.D2. It is true that I have sold the property to D.P.Keshava Murthy, which I had acquired under gift deed from my father. Now I see the said sale deed. It is Ex.D3. I do not know that D.P.Keshava Murthjy has signed in Ex.D1 as a witness."
19. On going through evidence of D.W.5-
Keshava Murthy, he admits in his cross-examination that, "Now I see Ex.D1 which bears my signature. My signature is Ex.D1 is Ex.D1(b). Nagaraj has sold property to me. Now I see the sale deed pertaining to sale of property by Nagaraj to me. It is Ex.D3. My signature in Ex.D3 is Ex.D3(a). Now I see the signature of Nagaraj (plaintiff) in Ex.D3. It is Ex.D3(b)."
11 O.S.No.5071/200820. On going through Ex.D1 and cross- examination of P.W.1 and evidence of D.W.5 (Keshama Murthy), it goes to show that, there is already a partition between plaintiff and defendant No.1 in respect of their joint family properties and that, property No.137 of Devasandra Village is given to defendant No.2 and suit property is also given to defendant No.2 as his share, which is depicted by way of recital in Ex.D1- Panchayat Parikath Vibhaga Pathra (Partition Deed) dated 13-7-2007 and on going through endorsement in Exs.D1 and D2, it further goes to show that, Site No.101, CMC Khata No.54 of Chikkadevasandra Village, is given to plaintiff, under gift deed dated 22-12-2004, as his share in the suit property.
21. Further, in view of admission by plaintiff in his cross-examination that, he sold property bearing Site No.101 of CMC Khata No.54 of Chikkadevasandra Village to D.W.5-Keshava Murthy, under registered Sale Deed Dated:13-7-2007, it can be said that, plaintiff has filed this suit after taking his share in the joint family properties, under gift deed dated 22-12-2004 from his father, i.e., defendant No.1.
12 O.S.No.5071/200822. Thus, in view of taking of his share in the joint family properties, plaintiff cannot maintain this suit for partition and separate possession of his share in the suit property against defendants. Accordingly, I hold Issue Nos.1 and 2 in the Negative.
23. Issue No. 3 : The defendants contend that, defendant No.1 has executed registered gift deed dated 16-8-2007 in favour of defendant No.2 in respect of suit property.
In order to substantiate this contention, defendants have relied upon Ex.D1, which is Panchayat Parikath Vibhaga Pathra (Partition Deed) dated 13-7-2007, wherein property bearing No.137 of Chikkadevasandra Village is given to defendant No.2 by defendant No.1. This partition deed is proved through the evidence of D.W.1, who is Power of Attorney Holder of defendant No.2 and one Keshava Murthy, who is attesting witness to Ex.D1- Panchayat Parikath Vibhaga Pathra (Partition Deed) dated 13-7-2007. In view of evidence of Power of Attorney Holder of defendant No.2, as D.W.1 and D.W.5 - Keshava Murthy in respect of Panchayat Parikath Vibhaga Pathra, it can be said that, said document, i.e., Ex.D1- Panchayat Parikath Vibhaga Pathra (Partition Deed) dated 13-7-2007, is said to have been proved by defendant No.2. Accordingly, I hold Issue No.3 in the Affirmative.
13 O.S.No.5071/200824. Issue No. 4 : The defendant No.2 contends that, there is already a partition between plaintiff and defendants 1 and 2 in respect of their joint family properties and one of the joint family property, i.e., Site No.101 of CMC Khata No.54 of Chikkadevasandra, is given to the plaintiff by way of Gift Deed dated 22-12-2004 and suit property, as well as property No.137 of Devasandra, is given to defendant No.2 by defendant No.1, under gift deed dated 16-8-2007 as his share.
25. In order to prove the said partition deed, defendant No.2 has examined his power of attorney holder as well as D.W.5-Keshava Murthy. Said Keshava Murthy (D.W.5) admits his signature to Ex.D1-Panchayat Parikath, as attesting witness and thus, Ex.D1-Partition Deed is also proved by the evidence of Power of attorney holder of defendant No.2 and D.W.5-Keshava Murthy. Accordingly, I hold Issue No.4 in the Affirmative.
26. Issue No. 5 : The plaintiff claims mesne profits out of his share in the suit property. However, in view of my answer to Issue Nos.1 and 2 in the Negative, I hold that, plaintiff is not entitled to mesne profits, Accordingly, I hold Issue No.5 in the Negative.
14 O.S.No.5071/200827. Issue No. 6 : Learned Counsel for plaintiff has relied upon the citation Venkataswamy and others vs. Smt.Annemma, reported in ILR 2015 Kar. 4715, wherein it is held that:
"Karnataka Stamp Act, 1957-Sections 34 and 35-Admissibility of unregistered Panchayat Partition Deed-Instrument of partition is not a memorandum of recording a past transaction, but under the document first time family properties are partitioned by metes and bounds-Order passed by the Trial Court that the document is a compulsorily registerable document-Document was impounded for want of registration and stamp duty-Pleaded against-Held, If there is an oral partition effected between the parties and subsequently the same is reduced into writing as a memorandum of partition in the joint family as evidence of partition no registration is required. However, under the document, if the parties actually effectuate a partition of all the family properties, then the document requires to be registered compulsorily.-The instrument in question is not a memorandum of recording a past transaction but under the document, parties are affected and therefore, it requires to be registered. "15 O.S.No.5071/2008
28. Learned Counsel for defendant No.2 has relied upon following citations:
1). Venkataswamy and others vs. Smt.Annemma reported in ILR 2015 Kar. 4715, wherein it is held that:
""Karnataka Stamp Act, 1957-Sections 34 and 35-Admissibility of unregistered Panchayat Partition Deed-Instrument of partition is not a memorandum of recording a past transaction, but under the document first time family properties are partitioned by metes and bounds-Order passed by the Trial Court that the document is a compulsorily registerable document-Document was impounded for want of registration and stamp duty-Pleaded against-Held, If there is an oral partition effected between the parties and subsequently the same is reduced into writing as a memorandum of partition in the joint family as evidence of partition no registration is required. However, under the document, if the parties actually effectuate a partition of all the family properties, then the document requires to be registered compulsorily.-The instrument in question is not a memorandum of recording a past transaction but under the document, parties are affected and therefore, it requires to be registered. "16 O.S.No.5071/2008
2). Narendra Kante vs. Anuradha Kante and others, reported in (2010) 2 Supreme Court Cases 77, wherein it is held that:
"A. Hindu Law-Family Arrangement/ Settlement- Deed of family settlement seeking to partition joint family properties-Signing of, by all co- sharers-Necessity of-Family settlement not signed by one of the co-sharers -Right to challenge validity of, after acting upon such family settlement-Held, deed of family settlement seeking to partition joint family properties cannot be relied upon unless signed by all co-sharers-However, where the deed of family settlement was not signed by one of the co-sharers i.e Respondent 8, the appellant co- sharers, after acting upon such settlement, had no right to contend that said settlement was valid-Evidence Act, 1872-S.115-Right to challenge validity of a deed after acting upon that deed-Contract Act, 1872-S.8-Acceptance by performance/sub silentio-Civil Procedure Code, 1908, Or.23 R.3."
The principles laid down in the above citations are followed by me while disposing this Judgment.
17 O.S.No.5071/200829. Issue No. 6 : In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed.
No Order as to costs.
(Dictated to the Judgment Writer, transcribed and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 28th day of January, 2017.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.18 O.S.No.5071/2008
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 D.C.Nagaraj List of witnesses examined for defendants:
D.W.1 A. Srinivas D.W.2 Smt.Lagumamma alias Lakshmamma D.W.3 Nagarathna D.W.4 Channarayappa D.W.5 D.P.Keshavamurthy
List of documents exhibited for the plaintiff:
Ex.P1 - Family Tree Ex.P2 - Khata extract of suit property, showing the name of grand father of plaintiff and defendant No.2, in respect of suit property Ex.P3 -Tax paid receipt of suit property, standing in the name of defendant No.1 Ex.P4 - Demand Register extract of suit property, standing in the name of plaintiff's father Ex.P5 - Khata Certificate of suit property, standing in the name of plaintiff's father Ex.P6 - certified copy of registered Gift Deed dated 16-8-2007 Ex.P7 - Encumbrance certificate Ex.P8 -Copy of application given to BBMP, with acknowledgment 19 O.S.No.5071/2008 Ex.P9 - copy of RTC extract pertaining to Survey No.51/1of Devasandra Ex.P10- copy of sale deed dated 13-9-1989 Ex.P11- copy of sale deed dated 20-9-1989 Ex.P12- Caste Certificate of plaintiff Ex.P13- Transfer Certificate of plaintiff Ex.P14 - Photograph Ex.P15- Voters List Exs.P16 to P18 - Photographs regarding marriage of defendant No.3 List of documents marked for defendants:
Ex.D1 - Panchayat Parikath Vibhaga Pathra (Partition Deed) dated 13-7-2007, giving property No.137 of Devasandra Village to defendant No.2 Ex.D1(a) - Signature of plaintiff Ex.D2 - certified copy of Gift Deed dated 22-12-2004 executed by defendant No.1 in favour of plaintiff in respect of property-Site No.101, CMC Khata No.54 of Chikkadevasandra Ex.D3 - Copy of Sale Deed dated:13-7-2007 executed by plaintiff in favour of D.P.Keshamurthy in respect of Site No.101 of CMC Khata No.54 of Chikkadevasandra Village Ex.D4- copy of plaint in O.S.No.757/2010 Ex.D5- copy of amended plaint in O.S.757/2010 Ex.D5(a)- signature of plaintiff 20 O.S.No.5071/2008 Exs.D6 & D7- certified copy of written statement and Additional written statement filed by Defendant No.9-Ramaiah in O.S.No.757/2010 Ex.D8- certified copy of registered Gift Deed dated 16-8-2007 executed by Channarayappa to Anjanappa Exs.D9 & D10- Two Encumbrance certificates in respect of properties standing in the name of Defendant No.2 Ex.D11- Voters I.D. Card of defendant No.1 Ex.D12 GPA executed by 2nd defendant in favour of DW.1 Ex.D13 Gift deed executed by 1st defendant in favour of 2nd defendant Ex.D14 Khatha endorsement issued by BBMP in favour of 2nd defendant Ex.D15 Khatha certificate of suit property standing in the name of defendant No.2 Ex.D16 Assessment extract issued by BBMP in favour of 1st defendant Exs.D17 2 tax paid receipts in respect of suit & D18 property Ex.D19 Encumbrance certificate Ex.D20 Certified copy of registered Will Deed dated 03-04-2006 executed by defendant No.1(a) in favour of Srinivas and Naveen Ex.D21 Revocation of Ex.D20-Will dated 07-07-2006 21 O.S.No.5071/2008 Ex.D22 14 medical documents pertaining to defendant No.2 Ex.D23 Family tree Ex.D24- Ration Card standing in the name of wife of 2nd defendant (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.22 O.S.No.5071/2008
28-01-2017 Plff. - S.V. D1(a) - S.L.V. D2 - T.N.A D3 - K.R Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
Order Suit of the plaintiff is dismissed.
No Order as to costs.
XXII A.C.C. & S.J., Bengaluru.