Bangalore District Court
Smt. S. Aruna vs H.M. Sreenivasa Reddy on 6 March, 2021
IN THE COURT OF LVII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU
(CCH58)
Present: Smt. K.G.Shanthi, B.Com, LL.M.,
LVII Addl.City Civil & Sessions Judge
Mayo Hall unit, Bengaluru.
Original Suit No.25705/2010
Dated this the 6th day of March, 2021
Plaintiffs : 1 Smt. S. Aruna,
W/o. Late Y. Keshava Reddy,
D/o. H.M. Sreenivasa Reddy,
Aged about 55 years,
R/at No.2327, 17th Cross,
Between 24th and 27th Main
Road, HSR Layout,
Bangalore560 032.
2. Smt. S. Anupa,
W/o. Dr. C. Narayana Reddy,
D/o. H.M. Sreenivasa Reddy,
Aged about 52 years,
R/at. No.308/4, Maruthi
nd
Nilaya, 2 Cross, Venkatapura,
Koramangala,
Bangalore 560 034.
3. S. Ramesh
S/o H.M. Sreenivasa Reddy,
Aged about 57 years
2
O.S.No.25705/2010
R/at No.341, 7th main,
HAL II Stage,
Bengaluru560 008.
(By L. Manjula Advocate)
/Vs./
Defendants: 1 H.M. Sreenivasa Reddy,
Late Kodda muniswamy
Reddy,
Aged about 89 years
R/at No.341, Main, HAL II
Stage, Bengaluru560008.
2. Smt. Venkatamma,
W/o. Late Abbu Raju,
Mother of Narasaraju
(Peddanna)
Aged about 100 years
R/at hoody gardens, Thigalara
Palya, White fiels main Road,
M.D. Pura post,
Bengaluru - 560048.
Since Defendant 2 dead,
represented herein by
2.a Narasa Raju,
2.b Krishna Raju
Both are sons of late Abbu
Raju
Since Defendant 2a and 2b
dead, represented by herein by
3
O.S.No.25705/2010
2a.1 Smt. Padmamma,
W/o.Late Narasa Raju,
Major by age,
2a.2 Ananda Raju
S/o late Abbu Raju,
Major by age,
2a.3 Chandra Shekar Raju S/o
late Abbu Raju, Major by age,
2a.4 Sujatha D/o late Abbu Raju,
Major by age,
2a.5 Jagadish S/o late Abbu Raju,
Major by age,
D2a 1 to 5 are children of late
Narasa Raju and all are
residing at No.35, Hoodi
garden, Whitefield Road,
Mahadevapura Post,
Bengaluru - 560048.
2b.1 Smt. Lakshmamma,
W/o Late Krishna Raju,
Major by age,
2b.2 Smt. Leela,
D/o Late Late Krishna Raju,
Major by age,
2b.3 Suma D/o Late Krishna Raju,
Major by age,
4
O.S.No.25705/2010
2b.4 Nirmala D/o Late Krishna
Raju,
Major by age,
2b.5 Santosh S/o Late Krishna
Raju, Major by age,
All are residing at
mahadevapura Post,
Bengaluru - 560048.
2(c) Krishna Raju @ Chikka
Krishna Raju,
S/o late Abbu Raju,
Aged about 37 years,
R/at Flat No.306, Prime Blue
Forest, Hoodi Garden, ITPL
Main Road, Mahadevapura
Post, Bengaluru 560048.
3. M/s Total Environment
Habitat Private Limited,
A registered company, having
its office at No.78, ITPL Road,
EPIP Zone, Whitefield,
Bengaluru - 560 066.
(D1by Sri C.V. Earappa,Adv.
For D2 Sri Gopala
Krishnan,Adv. For D3Sri
K.G.Sudhakar,Adv. For D4Sri
K.V.Shyamaprasada,Adv. D5
and 6 exparte, D7 and 8
absent, for D2(a) to (v) A & Y
Partners Advocates)
5
O.S.No.25705/2010
Date of Institution of the suit 23042010
Nature of the suit Partition and
Separate
possession
Date of the commencement of
recording of the evidence 272018
Date on which the Judgment was
pronounced 632021
Year/s Month/s Days
Total duration 10 10 13
*********
JUDGMENT
The plaintiffs filed this suit against defendants for partition and separate possession of the suit schedule property.
2. The brief facts of the case is that, plaintiffs are the children of one late Dodda Muniswamy Reddy and the children of 1st defendant H.M.Sreenivasa Reddy. It is stated that their grand father Dodda Muniswamy Reddy died intestate and his wife 6 O.S.No.25705/2010 Smt.Thayamma, grand children, including these plaintiffs being the legal heirs succeeded the estate of the deceased Dodda Muniswamy Reddy. His 5 sons including defendant No.1 herein entered into partition under registered document No.4397/6869 dated 5.12.1968 and family properties partitioned among themselves. The 1st defendant being the 4th son of late Dodda Muniswamy Reddy allotted 'D' schedule property and some other ancestral properties. The item No.1 under Sy.No.136 called as Giddanna Kere, situated at Hoodi Village, Bengaluru South, measuring 1 acre 3 guntas is ancestral property, which allotted to the defendant No.1. Accordingly, Khata has been mutated in the name of defendant No.1 and he remained in possession and enjoyment of the said property. The defendant No.1 failed to allot share to the plaintiff Nos.1 and 2, though they are legally 7 O.S.No.25705/2010 entitled for share, but he had transferred the property in the name of 2nd defendant. In this regard, Khata has been mutated in the name of 2nd defendant.
3. The suit property was purchased by defendant No.3 herein i.e. M/s.Total Environment Private Limited under registered Sale deed from the defendant No.2 Smt.Venkatamma and her 3 sons by name Narasa Raju, Krishna Raju and Krishna Raju @ Chikka Krishna Raju, who are defendant Nos.2(a), 2(b) and 2(c). The said property earlier sold by defendant No.1 Smt.Venkatamma under registered Sale deed dated 15.7.1978. The plaintiff Nos.1 to 3 have not signed the said Sale deed, which executed by defendant No.1 herein in favour of Smt.Venkatamma. The defendant No.1 not obtained any consent and without the knowledge of plaintiff Nos.1 to 3, she sold the property. It is stated by the plaintiffs that due to 8 O.S.No.25705/2010 the sale transaction by defendant No.1 to the defendant No.2, there was misunderstanding between plaintiffs and defendant No.1. The plaintiffs repeatedly requested defendant No.1 to partition and allot their share by meets and bounds and put them in separate possession. In this regard, Panchayat was held on 20.3.2010. Though the defendant No.1 agreed, later he went on dodging the issue and denied right of the plaintiff.
4. The cause of action to file the suit arose on 20.3.2010 when the plaintiffs had convened a panchayath at Hoodi village by demanding their shares and also subsequently when the sale transaction made in favour of 2nd defendant, which is not binding on these plaintiffs.
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O.S.No.25705/2010
5. Accordingly, plaintiff Nos.1 to 3 prayed for judgment and decree in their favour allotting their shares by meets and bounds and further to declare that sale deed executed by defendant No.1 in favour of defendant No.2 is not binding on them.
6. The 3rd defendant, who is contesting party herein filed written statement. He has contended that the suit schedule property first conveyed in the year 1978 and the present suit filed in the year 2010 i.e. after expiry of more than 30 years. It also contended that 1st defendant had given possession of the suit schedule property to Smt.Vekatamma, the 2nd defendant herein on 15.7.1978 under registered Sale deed. But the said Sale deed was not challenged by the plaintiffs within the period of 12 years from the possession of the schedule property by the 2 nd defendant. It also contended that the suit is filed for 10 O.S.No.25705/2010 partition and separate possession of the properties which allotted to the share of 1st defendant under partition deed dated 5.12.1968. So, property acquired at the time of partition will be selfacquired property of the 1st defendant and the plaintiff will not have any right over the said property. Further it is contended that the 1st defendant sold the suit schedule property in the year 1978 in favour of 2nd defendant. So, the property is not available for partition.
7. It is stated that Sri Dodda Muniswamy Reddy was the owner in possession of the property in Sy.No.136 to the extent of 3 acres 9 guntas situated at Hoodi Village, K.R.Puram Hobli, Bengaluru. The said properties were partitioned amongst the legal heirs of Dodda Muniswamy Reddy i.e. wife Thayamma and 5 sons under the registered partition deed dated 5.12.1968. Under partition deed, Smt.Thayamma, Sri 11 O.S.No.25705/2010 H.M.Gurumurthy Reddy and Sri H.M.Srinivasa Reddy were allotted to an extent of 1 acre 3 guntas each in Sy.No.136. Smt.Thayamma conveyed to an extent of 1 acre 3 guntas, which acquired under partition in favour of 2nd defendant under registered Sale deed dated 23.7.1977. The 1st defendant also conveyed to an extent of 1 acre 3 guntas, which falls to his share in favour of 2nd defendant, under registered Sale deed dated 15.7.1978. So, the 2nd defendant was the owner in possession of property to an extent of 2 acres 6 guntas in Sy.No.136.
8. It also stated by the 3rd defendant that Smt.Venkatamma filed application before the concerned authority to convert the total extent of 2 acres 6 guntas in Sy.No.136. The said application was allowed vide Official Memorandum No.ALN (EKHW) SR:
177a/201112 dated 4.6.2012. Accordingly, 2 acres 6 12 O.S.No.25705/2010 guntas converted from agricultural to nonagricultural Hitech use. The daughters of 2nd defendant by name Smt.Papamma, Smt.Subbamma and Smt.Jayamma executed a Released deed dtd.12.7.2012 under document No.MDP101155201213, in the Office of the SubRegistrar, Mahadevapura, Bengaluru, in favour of 2nd defendant. Accordingly, Smt.Venkatamma become the absolute owner of the property. So, 2nd defendant and her sons have conveyed to an extent of 2 acres 6 guntas to the 3 rd defendant under registered Sale deed dated 19.7.2012.
Accordingly, 3rd defendant is the absolute owner in possession of the property to an extent of 2 acres 6 guntas in Sy.No.136 of Hoodi Village, K.R.Puram, hobly, Bengaluru East Taluk. It is also contended that genealogical tree produced by the plaintiffs is a concocted document, created only for the purpose of 13 O.S.No.25705/2010 the present suit. This defendant specifically denied all the other plaint averments. The defendant No.3 also contended that plaintiff was aware of the transaction of sale, but they never objected and not initiated any action. It is specifically denied that plaintiffs came to know about transaction only on 20.3.2010. With the above contention defendant No.3 prays for dismissal of the suit.
9. The defendant No.6 filed his written statement denying all the plaint averments and contended that it is a subsidizing Company of M/s.Larsen & Toubro Limited.
10. Based on the pleadings, the following issues have been framed by my learned predecessor.
1. Whether the plaintiff proves that suit schedule properties are their ancestral 14 O.S.No.25705/2010 joint family properties, who are in joint possession, liable fro partition?
2. Whether the plaintiff No.1 to 3 are entitle for their legitimate share in the suit schedule properties?
3. Whether the plaintiff proves that the alienation made by the defendant No.1 in favour of defendant No.2 is not binding on them?
4. Whether the suit is barred by limitation?
5. Whether the suit is hit by non joinder of necessary parties?
7. What order or decree?
Addl.Issues:
1. Does the defendant No.3 company prove that it is the absolute owner in possession to the extent of 2 acre 06 guntas in Sy.No.136 of Hoodi Village, as per the Registered Sale Deed dated 19.7.2012, as contended?15
O.S.No.25705/2010
2. Does the defendant No.3 Company further prove that the suit is bad for partial partition?
11. In order to prove the case of plaintiffs, plaintiff No.3 examined himself as P.W.1 and got marked Exs.P1 to P8. On the other hand, the representative of Defendant No.3 Company, Mr.Subbarao is examined on behalf of defendants as DW1 and got marked Exs.D1 to D9.
12. My findings on the above issues are as under:
Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3 : In the Negative Issue No.4 : In the Affirmative Issue No.5 : Does not arise Issue No.6 : As per final order Additional Issue No.1 : In the Affirmative Additional Issue No.2 : Does not arise for the following:16
O.S.No.25705/2010 REASONS
13. Issue Nos.1 to 3 and Additional Issue No.1: Since these issues are interlinked or inter connected each other, they are taken up together for common discussion.
14. It is the definite case of the plaintiffs that, they are the absolute owners in joint possession and enjoyment of the suit schedule property along with defendant No.1. The plaintiff Nos.1 and 2 basically filed suit for partition claiming their share in the suit property. The defendant No.2, who is brother of plaintiff Nos.1 and 2 and the son of defendant No.1, subsequently he transposed as plaintiff No.3 as per the Order dated 10.9.2013.
15. It is pertinent to note that, plaintiffs filed this suit against defendant Nos.1 to 8 and subsequently got deleted the defendant Nos.4 to 8. Though plaintiffs 17 O.S.No.25705/2010 claimed partition with respect to 5 properties, by filing suit, subsequently they have not pressed the relief against defendant Nos.2 to 5. So, the defendant No.3 alone is contesting party. Plaintiffs claim 1/4th share each i.e. Sy.No.136 situated at Hoodi Village, Bengaluru South, which measures 1 acre 3 guntas. In this regard, time to time plaint has been amended.
16. According to plaintiffs, since, suit schedule property is joint family property and the 1 st defendant not sold the property for the family necessity or for the benefit of minors. Hence, Sale deed executed by defendant No.1 in favour of defendant No.2 Smt.Venkatamma is not binding on these plaintiffs. Further taken up contention that Sale deed executed by defendant No.2 Smt.Venkatamma and her sons in favour of defendant No.3 is not binding on these plaintiffs.
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O.S.No.25705/2010
17. It is burden on the plaintiffs to establish that suit schedule property is the ancestral property and they are in joint possession which is liable for partition. In this regard, plaintiff No.3 examined himself as PW1. He filed evidence by way of affidavit in lieu of examination in chief. In his evidence he deposed that his grand father Dodda Muniswamy Reddy died intestate leaving behind his wife Smt.Thayamma and 5 sons and grand children including these plaintiffs as legal heirs. They succeeded the estate of Dodda Muniswamy Reddy. Thereafter, Smt.Thayamma W/o.Dodda Muniswamy Reddy and her 5 sons including 1st defendant herein H.M.Srinivasa Reddy entered into partition deed effecting partition of family property under document No.4397/6869 dated 5.12.1968, which has been registered before Sub registrar, Bengaluru South Taluk. In the said 19 O.S.No.25705/2010 partition, the 1st defendant was allotted with 'D' schedule property i.e. in Sy.No.136 called as Giddana Kere, which is item No.1 in the present suit.
18. PW1 in his evidence deposed that defendant No.1 not made any efforts to allot share to the plaintiffs in spite of repeated requests. He obtained revenue document, he came to know that the suit schedule property allotted in the name of defendant No.2 - Smt.Venkatamma, under registered document i.e. Sale deed No.2164/197879 dated 15.7.1978. Accordingly, name of Smt.Venkatamma has been mutated in the revenue records. Smt.Venkatamma and her 3 sons by name Narasa Raju, Krishna Raju and Krishna Raju @ Chikka Krishna Raju, who are defendant Nos.2(a) to 2(c), sold the property to the defendant No.3 under registered Sale deed dated 19.7.2012. 20
O.S.No.25705/2010
19. PW1 in his evidence deposed that he gained knowledge of this transaction only in the year 2009. He himself and his sisters claimed share from the defendant No.1, but he has not agreed for the same. In this regard, panchayat was held at Hoodi Village on 20.3.2010. Though defendant NO.1 agreed for the partition, went on dodging on the issue. Hence, they filed this suit. PW1 had produced POA executed by the plaintiff Nos.1 and 2 in his favour, which marked as Ex.P1. The genealogical table is marked as Ex.P2. Copy of the partition deed dated 5.12.1968 marked as Ex.P3. RTC extract marked as Ex.P4. The mutation marked as Ex.P5. RTC extract marked as Ex.P6. Copy of the Sale deed executed in favaour of defendant No.3 marked as Ex.P7.
20. The defendant No.3, who is contesting defendant examined its authorized representative as 21 O.S.No.25705/2010 DW1. He filed evidence by way of affidavit. In the evidence defendant No.3 specifically deposed Smt.Venkatamma purchased the suit schedule property from 1st defendant and she was in possession and enjoyment of the suit schedule property by virtue of the Sale deed dated 15.7.1978. It also deposed that 1st defendant allotted share in the partition deed dated 5.12.1968. It also deposed that one Dodda Muniswamy Reddy was the owner in possession of the land in Sy.No.136, which measures 3 acres 9 guntas situated at Hoodi Village and after the death of Dodda Muniswamy Reddy the property was partitioned amongst his wife Smt.Thayamma and 5 sons under Partition deed dated 5.12.1968. The 1st defendant was party to the extent of 1 acre 3 guntas in Sy.No.136 and he become absolute owner of the said property. Smt.Thayamma conveyed an extent of 1 acre 3 guntas, 22 O.S.No.25705/2010 which allotted to her in the above partition to the 2nd defendant Smt.Venkatamma under Sale deed dated 23.3.1977.
21. It also deposed that Smt.Venkatamma filed application before the concerned authority to convert total extent of 2 acre 6 guntas in Sy.No.136. The said application has been allowed by the concerned authority on 4.6.2012. So, Sy.No.136 was converted from Agricultural to nonagricultural Hitech use. The daughters of 2nd defendant by name Smt.Papamma, Smt.Subbamma and Smt.Jayamma executed a Release deed dated 12.7.2012 under document No.MDP1 01155201213, in the Office of the SubRegistrar, Mahadevapura, Bengaluru in favour of 2nd defendant, confirming that Sy.No.136 measuring 2 acres 6 guntas is the absolute owner of the said property. Subsequently, she had executed registered Sale deed in 23 O.S.No.25705/2010 favour of 3rd defendant on 19.7.2012. In this regard, khata also mutated in favour of 3rd defendant. So, this defendant denied that plaintiffs are in possession and enjoyment of the suit schedule property and they are entitled for share.
22. PW1 in his crossexamination admitted that plaintiffs obtained documents through one Venkatesh, but he deposed that he do not know address of the said Venkatesh but he gone through the documents. He further deposed that his sister Smt.Aruna - plaintiff No.1 residing at Yeshwanthpur and Plaintiff No.2 - Anupa residing at Venkatapura and their marriage solemnized on 1981 and 1988 respectively, since then they are residing in their respective husband's house. He admitted that in the year 1968 he was aged 10 years and when his father sold the property, by that time he was aged 20 years. Further he deposed that 24 O.S.No.25705/2010 his father residing No.341, 7th Main, HAL II Stage, Indiranagara, Bengaluru.
23. According to plaintiffs, the Sale deed executed by their father i.e. defendant No.1 in favour of defendant No.2 is not binding on them, for the reason the sale consideration is not used by their father for the best family necessity. PW1 at the time of cross examination deposed that at the time of execution of Sale, his father was getting salary of Rs.250300/. Further he deposed that, he do not know how much amount spent for the marriage of plaintiff Nos.1 and 2 in the year 1981 and 1988. He deposed that at the time of marriage of 2nd plaintiff, he was aged 29 years and he cannot say what was the income of his father by that time. He also admitted that his father retired from the service in the year 1985 and he is residing in the house at Indira Nagara since 1973. 25
O.S.No.25705/2010
24. By looking into this evidence it reflects that defendant No.1 getting salary and he himself performed marriage of plaintiff No.2 in the year 1988 and he retired from the service in the year 1985. There is no evidence to show that defendant No.1, addicted to bad vices and he utilized the sale consideration amount to meet his bad vices. There is no specific allegation made by plaintiffs against the defendant No.1 regarding his conduct. On the other hand, the evidence it reflects that though defendant No.1 was an employee, he was getting meager salary of Rs.250300/ per month and he has performed marriage of 2 daughters. Further, there is no material to show that plaintiff No.3, who is PW1 contributed amount for the marriage of plaintiff No.2. In this circumstance, it can be gathered defendant No.1 made use of the sale consideration for the family necessity. At the time of execution of sale 26 O.S.No.25705/2010 deed, marriage of plaintiff No.3 was not performed, so the alienation made by defendant No.1 in favour of defendant No.2 under registered Sale deed in the year 1978 is binding on the plaintiffs.
25. The defendant No.3 is the purchaser of the suit schedule property from defendant No.2 under registered sale deed.
26. The plaintiffs not challenged the Sale deed executed by defendant No.1 as per Ex.P5. Based on the Sale deed, khata has been mutated in the name of defendant No.2 Venkatamma. The defendant No.1 alienated the suit schedule property under registered Sale deed dated 15.7.1978 and possession was delivered to defendant No.2. The Revenue records was also stands in the name of defendant No.2. But PW1 not challenged the Sale deed soon after attaining majority.
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O.S.No.25705/2010
27. The defendants produced Ex.P4 Release deed, which executed by children of Venkatamma by name Smt.Papamma, Smt.Subbamma and Smt.Jayamma, releasing their shares in favour of Venkatamma. In view of the Release deed, Venkatamma becomes absolute owner of the property and she sold the schedule property in favour of defendant No.3 as per Ex.D5. So, by virtue of Sale deed, the defendant No.3 continued his possession and enjoyment of the suit schedule property.
28. In Ex.P7 Sale deed dated 19.7.2012 there is recital in page2 that "H.M.Krishna Reddy and his brothers and Thayamma partitioned the property under registered partition deed dated 5.12.1968 and Smt.Thayamma conveyed to the extent of 1 acre 3 guntas which allotted to her in favour of Venkatamma." Further, H.M.Srinivasa Reddy (defendant No.1) also 28 O.S.No.25705/2010 conveyed an extent of 1 acre 3 guntas allotted to him in favour of Smt.Venkatamma under registered Sale deed dated 15.7.1978. Accordingly, Smt.Venkatamma becomes absolute owner of the property to an extent of 2 acre 6 guntas of land in Sy.No.136. Further, Sale deed it reflects that said area is converted from agricultural to nonagricultural use. So, it is very clear that alienation made in favour of defendant No.2 is valid one and Smt.Venkatamma being absolute owner of the property, she alienated the suit schedule property in favour of defendant No.3. Such being the circumstances, now plaintiffs cannot say Sale deed executed either by defendant NO.1 or by defendant No.2 are not binding on them. On the other hand, the evidence it reflects that the defendant No.3 is bonafide purchaser of the suit schedule property. With the above discussion, Issue Nos.1, 2 and 3 answered in 29 O.S.No.25705/2010 Negative and Additional Issue No.1 is answered in the Affirmative.
29. Issue No.4 : It is the definite contention of the defendants that suit is barred by Limitation. According to plaintiffs, they came to know about alienation made by the 1st defendant only in the year 2009 and within 3 years they filed the suit. This suit is filed in the year 2010. In this case, though plaintiffs very much aware about execution of the Sale deed by defendant No.1 in favour of defendant No.2, further by defendant No.2 in favour of defendant No.3, the said Sale deed is not questioned and the plaintiffs claim that they are in joint possession of the suit schedule property along with defendant No.1. But plaintiffs failed to establish that they are in joint possession and enjoyment of the suit schedule property as on the date of filing the suit.
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O.S.No.25705/2010
30. According to the defendants the suit of the plaintiffs is barred by limitation. The following Citation is relied on by the defendants: In the case of Prem Singh and Others Vs. Birbal and others reported in (2006) 5 Supreme Court Cases 353, wherein it is held:
A. Specific Relief Act, 1963 - S.31 - Void deed of sale of immovable property - Interest of minor purportedly conveyed by - Course open to minor on attaining majority - Limitation period applicable - Held, such minor would have two options in filing a suit to get the property purportedly conveyed under such a deed of sale - He could either file the suit within 12 years of the deed or within 3 years of attaining majority - Limitation Act, 1963 - Arts.60 and 65 - Applicability.
B. Limitation Act, 1963 - Art.59 -
Applicability - Held, is applicable only to voidable transactions and not to void transactions - It therefore applies where a document is prima facie valid and would not 31 O.S.No.25705/2010 apply to instruments which are presumptively invalid - Hence Art.59 would be attracted in case of coercion, undue influence, misappropriation or fraud when the transaction is a voidable one - Specific Relief Act, 1963 - S.31 - Deeds and Documents.
C. Specific Relief Act, 1963 - Ss.31, 5, 6 and 34 - Void deed of sale of immovable property Party claiming interest in the property - Course open to - Limitation period applicable - Held, if plaintiff is in possession of the property, he may file for declaration that the deed is not binding upon him - However, if he is not in possession he may sue for possession and the limitation period as under
Art.65, Limitation Act would be applicable - Hence it was not true that provisions of the Limitation Act would have no application at all in the event the transaction is held to be void - Limitation Act, 1963 - Arts. 58 and 65 - Deeds and Documents - Void and Voidable transactions.
In the above said Ruling, the Hon'ble Apex Court clearly observed that if the deed was executed when he 32 O.S.No.25705/2010 was a minor and then he has aggrieved, the remedy available that he should file the suit within 12 years of the date or within 3 years of attaining majority.
31. In the present case, either of the plaintiffs not challenged the Sale deed executed by defendant No.1 in favour of defendant No.2, within 12 years or within 3 years from the date of attaining majority. So, I am of the opinion that suit of the plaintiff is barred by Limitation. Accordingly, this Issue No.4 is answered in Affirmative.
32. Issue No.5 and Additional Issue No.2: The plaintiffs filed the suit with respect to item Nos.1 to 5 and against defendant Nos.1 to 8. Subsequently, they deleted item Nos.2 to 5 and further deleted the claim against other defendants. The amended plaint filed on 20.2.2020 only with respect to the item No.1 in 33 O.S.No.25705/2010 Sy.No.136. The deletion was taken place as per the Order dated 13.12.2010 and dtd.20.2.2020. Hence. Giving finding on Issue No.5 and Additional Issue No.2 Does not arise.
33. Issue No.6: The plaintiffs claim 1/4th share each in the suit schedule property and they drawn attention of the Court to the case decided by Hon'ble Apex Court, in the case of Vineeta Sharma Vs. Rakesh Sharma and Others reported in (2020) 9 Supreme Court Cases 1 wherein it is held:
A. Family and Personal Laws Hindu Succession Act, 1956 - S. 6 [as substituted by the Hindu Succession (Amendment) Act, 2005 w.e.f. 992005] Daughter's right in coparcenary property under substituted S. 6 of the HS Act, 1956 Daughter born before date of enforcement of the 2005 Amendment Act Held, has same rights as daughter born on or after the amendment Nonrequirement of 34 O.S.No.25705/2010 coparcener father to be alive on date of coming into force of the said amendment, explained Held, if daughter is alive on date of enforcement of Amendment Act, 2005 i.e. 99 2005, she becomes a coparcener with effect from date of Amendment Act, 2005 (i.e. 99 2005) irrespective of whether she was born before the said amendment Provisions in substituted S. 6 of the HS Act confer status of coparcener on daughter born before or after the amendment in the same manner as son with same rights and liabilities Rights under substituted S.6 can be claimed by daughter born prior to the amendment, with effect from date of amendment (992005) with saving of past transactions as provided in proviso to S.6(1) r/w S.6(5) of the HS Act.
34. These plaintiffs cannot claim benefit of the above said ruling, for the reason that plaintiffs and defendant No.1 lost their possession over the suit schedule property, way back in the year 1978 itself, as the defendant No.1 - father of plaintiff Nos.1 to 3 sold 35 O.S.No.25705/2010 the suit schedule property to defendant No.2 under registered Sale deed. Hence, I proceed to pass the following: ORDER The suit of the plaintiffs is dismissed with costs.
(Dictated to the Judgmentwriter, transcribed and computerized by him and after carrying out corrections by me, print out taken by him and then pronounced by me in open Court on this the 6th day of March, 2021) (Smt.K.G. SHANTHI) LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs :
PW.1 : S. Ramesh List of documents marked for the plaintiffs :
Ex.P1 : Special Power of Attorney
Ex.P2 : Genealogical Table
Ex.P3 : Partition deed dtd.05121968
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O.S.No.25705/2010
Ex.P4 : RTC
Ex.P5 : Mutation Register extract
Ex.P6 : RTC
Ex.P7 : Certified copy of sale deed dtd.1907
2012
Ex.P8 : Written statement
Ex.P8(a) : Signature of witness
List of witnesses examined for the Defendants :
DW.1 : Srihari Subbarao List of documents marked for the Defendants :
Ex.D1 : Authorization letter
Ex.D2 : Certified copy of sale deed dtd.23071977
Ex.D3 : Certified copy of sale deed dtd.15.07.1978
Ex.D4 : Certified copy of Release Deed
dtd.12.07.2012
Ex.D5 : Certified copy of sale deed
dtd. 19172012
Ex.D6 to 9 : 4 Encumbrance certificates.
LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
37 O.S.No.25705/2010 Judgment pronounced in open court (vide separate Judgment) ORDER The suit of the plaintiffs is dismissed with costs.
LVII Addl. City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.