Bangalore District Court
Smt. Poopathiamma vs (1) Smt. N. Sagayamary @ N on 28 October, 2019
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 28th day of October, 2019.
O.S.No. 26276/2013
Plaintiffs: 1. Smt. Poopathiamma,
Aged about 69 years,
W/o Late M. Loganathan,
2. Sri. Kamalraj,
Aged about 33 years,
S/o Late M. Loganathan,
Both are R/at Door No.19,
'P' Street, Shanthinagar,
Bangalore560 027.
[By Sri.Suresh S LokareAdv]
2
O.S.No.26276/2013
V/s
Defendants: (1) Smt. N. Sagayamary @ N.
Sagayam,
Aged about 52 years,
D/o Sri. M. Natesh,
(2) Sri. N. Deepak,
Aged about 47 years,
S/o M Natesh,
(3) Smt. N. Theresa,
Aged about 50 years,
D/o M. Natesh,
Defendant Nos.1 to 3 are R/at
Old No.38, New No.1,
'R' Street, Shanthinagar,
Bangalore560 027.
(4) Sri. Madan,
Aged about 49 years,
S/o Late Smt. Jagadamba,
R/at No.18, 'P' Street,
Shanthinagar, Bangalore560 027.
[By Sri. C. Pattabi RamanAdv.
For D3]
3
O.S.No.26276/2013
[By Sri. SNAdv for Defendant
Nos.1 and 2]
(By Sri. A.P. ThimmaiahAdv. For
D4)
Date of Institution of the suit 13.08.2013
Nature of the (Suit or pronote, suit
for declaration and possession, suit Suit for Partition
for injunction, etc.)
Date of the commencement of
24.03.2016
recording of the Evidence.
Date on which the Judgment was 28.10.2019
pronounced.
Year/s Month/s Day/s
Total duration 06 02 15
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
4
O.S.No.26276/2013
JUDGMENT
This is the suit filed by the Plaintiffs against the Defendants for the relief of Partition and Separate Possession.
2. Facts of the Plaintiffs case are as under:
It is the case of the Plaintiffs that, first Plaintiff is the wife of M. Lognathan. M. Loganathan died on 07.07.1997, leaving behind him, the Plaintiff No 1 and his other heirs to succeed his estate. Defendant Nos 1 to 3 are the children of Late M Natesh, who is the bother of M Loganathan. M Natesh died leaving behind him, the Defendant Nos 1 to 3 and his other heirs to succeed his estate. Defendant Nos 1 to 3 are Indian Christians, so they are not entitle to have any share in the ancestral property, since they are proper parties, they have been arrayed as the Defendants in this suit. The Defendant No 4 is the 5 O.S.No.26276/2013 son of Smt Jagadamba, the daughter of Gangamma and the sister of M Loganathan and M Natesh. M Loganathan and M Natesh were also having two more sisters by names Chinnapuliamma and Dhanamma. Chinnapuliamma and Dhanamma had no issues (children), out of their respective wedlocks.
Suit schedule property belongs to Chinnapuliamma, as she had purchased the same from Abdul Khadar. She was residing in the said property with M Natesh. During the lifetime of Chinnapulliamma, M Natesh had filed a suit for Permanent Injunction against her at OS No 118/1979 and she had filed several Police complaints against M Natesh. M Natesh has caused harassment to Chinnapulliamma. He had filed a suit at OS No 564/1982 for the relief of Partition and Seperate Possession against M Loganathan and others. The said suit was Dismissed for Default. Further M Natesh filed petition for restoration of the said suit at Misc Petition No 691/1989, which was allowed on 26.03.1994 and the suit was restored on 6 O.S.No.26276/2013 condition. Due to non fulfilment of the said condition, imposed in Misc Petition, the suit was not got restored to its original file.
Chinnapulliamma out of her love, executed Will infavour of her sister Jagadamba and M Lognathan. Chinnapulliamma died on 24.08.1981. After her death, Jagadamba and M Lognathan filed a Suit for the relief Declaration, Injunction and Mesne Profits, against M Natesh at OS No 11035/1990. The said suit was decreed. Being aggreived by the said Judgment M Natesh preferred Regular Appeal at RFA No 1220/2002, before the Hon'ble High Court of Karnataka. The said Appeal was allowed, dismissing the suit filed by M. Lognathan and Jagadamba. Being aggreived by the same M Loganathan and Jagadamba prefered SLP at Spl (Civil) No 17655/2005, before the Hon'ble Apex Court. In the meantime Jagadamba and M Loganathan died, steps were not taken, so the said matter was dismissed by the Hon'ble Apex Court for default on 19.09.2011.
7O.S.No.26276/2013 Plaintiffs requested the hiers of M Nateshthe Defendant Nos 1 to 3, to vacate the suit schedule property as they have to get the effected partition, in it, as the same is left by Chinnapulliamma, contending that the heirs of M Natesh are not entitle to have share in it, as M Natesh and his heirs have converted themselves to Christianity. Since no partitions have been effected inbetween the Plaintiffs and the Defendant No 4, inrespect of the suit schedule property. So the Plaintiffs were constrained to file the present suit for Partition.
3. Suit Summons were served to the defendants. The Defendant Nos 1 to 3 and 4 appeared through their respective Counsels on 30.09.2013. Defendant No 3 engaged another counsel on 08.11.2013. Defendant No 4 filed his Written Statement on 08.11.2013 and the Defendant Nos 1 & 2 filed their Written Statement on 30.10.2014 and the Defendant No 3 filed her Written Statement on 16.01.2015.
8O.S.No.26276/2013
4. The Defendant Nos.1 and 2 filed their Written Statement, denying all the contentions raised by the Plaintiffs and have specifically contended that their father M Natesh was in possession of the Suit Schedule Property, since the lifetime of Chinnapulliamma. Their father has paid consideration amount and has purchased the Suit Schedule Property in the name of Chinnapulliamma. Chinnapulliamma was not the earning hand. Since there were some difference of opinion inbetween their father and Chinnapulliamma, their father had filed suit against her for the relief of Permanent Injunction. They have perfected their title over the Suit Schedule Property on the basis of their possession over it. Further contended that the present suit filed by the Plaintiff is not maintainable as the Partition Suit filed earlier was dismissed and further the suit of the Plaintiffs is bad for nonjoinder of necessary parties. Hence prayed to dismiss the suit of the Plaintiffs.
9O.S.No.26276/2013
5. The Defendant No 3 has also denied all the contentions raised by the Plaintiffs, in the Suit Plaint and has contended, as contended by the Defendant Nos 1 & 2. Further she has contended about the filing of HRC Petitions by her father and acting as the owner of the Suit Schedule Property. Hence prayed to dismiss the suit of the Plaintiffs.
6. The Defendant No 4 has also denied all the contentions of the Plaintiffs takenup in the Suit Plaint and has specifically contended that the Suit Schedule Property was belonging to Chinnapulliamma, after her death only the heirs of Ganagamma and M Lognathan are entitle to have partition in it, as M Natesh and his heirs have converted into Christianity. Hence prayed to award his half share in the Suit Schedule Property, by filing Counter Claim.
10O.S.No.26276/2013
7. On the basis of the above said pleadings, my learned predecessor in office has framed below mentioned issues on 31.03.2015, as under:
ISSUES
1. Whether the Plaintiffs prove that the suit schedule property is the joint family property?
2. Whether the Plaintiffs prove that they are entitled collectively for half a share or more than that share in the suit schedule property?
3. Whether the Defendants being Christians, are not entitled any share in the suit schedule property?
4. Whether the suit barred by time?
5. Whether the paid Court fee is insufficient?
6. To what decree or order?11
O.S.No.26276/2013 Further again Issues were framed on 06.08.2014
1. Whether the Plaintiffs prove that the suit schedule property is the joint family property?
2. Whether the Plaintiffs further prove that they are entitle for ½ share in the suit schedule property?
3. Whether the Plaintiff further prove that they alleged attempt of Defendant No.1 to 3 to deprive their rights over the suit schedule property?
4. Whether the Defendant No.4 proves that he is entitle for 1/3rd share in the suit schedule property through his mother by way of counter claim?
5. What order or decree?
12O.S.No.26276/2013 Looking to the contentions of the Plaintiffs and Defendants, this Court, recasted the said issues on 23.08.2019, as under
Recasted issues as per orders dtd.23.08.2019
1. Whether the Plaintiffs prove that after the death of Chinnapulliamma, they have succeeded to the suit schedule property?2. Whether the Defendant Nos. 1 to 3
prove that they are the absolute owners of the suit schedule property as contended by them in para No.21of their Written Statement?
3. Whether the Plaintiffs prove that Defendant Nos.1 to 4 have converted themselves to Christianity, as contended by them in para No.13 of the suit plaint?
4. Whether the Defendant No.4 proves that he is entitle for half share in the suit schedule property towards the share of his mother 13 O.S.No.26276/2013 Jagadhambha, as contended in his counter claim?
5. Whether the Defendant Nos.1 to 3prove that the suit of the Plaintiff in the present form for the relief of partition is not maintainable?
6. Whether the Plaintiffs have properly valued the suit plaint and have paid the Court Fee as per law?
7. Whether the Plaintiffs are entitled for the relief of partition and to have half share in the suit schedule property, as claimed by them?
8. What order of Decree?
The Learned Counsels representing the Plaintiffs, the Defendant Nos 1 & 2 and 4, respectively, filed seperate Memo contending that they do not have further evidence, inview of recasting of Issues on 23.08.2019. Placing the said Memos on record, the matter was proceeded with.
14O.S.No.26276/2013
8. The Plaintiffs inorder to prove their case got examined Plaintiff No 2 as PW1 and has got marked 34 documents as ExP1 to ExP34. PW1 was cross examined on behalf of the Defendant Nos 1 & 2 on 12.06.2017, 15.09.2017, 10.11.2017, 29.01.2018, 13.06.2018, 06.09.2018 and 24.09.2018. PW1 was cross examined on behalf of the Defendant No 3 on 03.11.2018. ExD1 marked on confrontation to PW1.
Percontra the Defendant No 4 got himself examined as DW1. DW1 was cross examined on behalf of the Plaintiffs on 20.12.2018. DW1 was cross examined on behalf of the Defendant Nos 1 & 2 on 08.03.2019 and the cross examination of DW1 by the Defendant No 3, is taken as "No Cross" on 08.03.2019.
Defendant Nos 1 & 2 got examined Defendant No 2 as DW2 and got marked 20 documents as ExD2 to ExD21. DW2 was cross examined on behalf of the Plaintiffs on 17.06.2019 and 19.07.2019.
15O.S.No.26276/2013 DW2 was cross examined on behalf of the Defendant No 4 on 26.07.2019.
9. This suit was initially allotted to CCH 29. The same was transferred to CCH21 by virtue of notification bearing No PPS(CCC) 68/14 dated 01.12.2014. Further this suit was transferred to this Court on 08.08.2018, as per the notification bearing No ADMI(A) 413/2018 dated 31.07.2018.
10. Heard the arguments of the Learned Counsels for the Plaintiffs, the Defendants, respectively.
11. My findings on the said Recasted issues are as under:
Issue No 1 : In the Affirmative; Issue No 2 : In the Negative; Issue No 3 : In the Negative; Issue No 4 : Partly In the Affirmative; Issue No 5 : In the Negative;16
O.S.No.26276/2013 Issue No 6 : In the Affirmative; Issue No 7 : Partly In the Affirmative; Issue No 8 : As per final order for the following :R E A S O N S:
12. ISSUE NOS 1 & 2:
Since these two issues are interlinked with each other and inorder to have brevity in the discussion and to avoid confusion, these two Issues are takenup jointly, for discussion.
13. As per the contentions of the Plaintiffs and the Defendants, the undisputed facts are:
That ChinnaThayamma and Muniswamy were having three daughters and two sons,namely Gangamma the maternal grandmother of the Defendant No 4; Chinnapulliamma; Dhanamma; Loganathan the ascendent of the Plaintiffs and M Natesh the father of the Defendant Nos 1 to 3.17
O.S.No.26276/2013 Chinnapulliamma and Dhanamma died issueless. Chinnapulliamma died on 24.08.1981. Filing of the Original Suit at OS No 118/1979 by M Natesh against Chinnapulliamma, for the relief of Permanent Injunction. Filing of Suit at OS No 564/1982 by M Natesh against M Loganathan and others for the relief of Partition and Seperate Possession. And filing of Suit at OS No 11035/1990 by M Loganathan and Jagadama for the relief of Declaration, Injunction and Mesne Profits, against M Natesh.
14. Further it is the case of the Plaintiffs and the Defendant No 4 that the Suit Schedule Property belonged to Chinnapulliamma as she had purchased the same out of her own funds. Percontra, it is the case of the Defendant Nos 1 to 3 that the suit schedule Property was purchased by their father M Natesh in the name of Chinnapulliamma, with his funds, as she was not an earning hand, but she was the elder person in the family.
18O.S.No.26276/2013
15. The Plaintiffs have produced the Certified copy of the Saledeed dated 13.07.1943 at ExP16. As per this document it is seen that M. Chinnapulliamma D/O: Muniswamy purchased the property bearing Municipal No 1, situate at Second Division, Civil and Military Station, measuring East to West: 39 feet and North to South: 23 feet, from Abdullah Sab S/O: R Allauddin, for the valuable consideration of Rs 175/. This document also evidences about the payment of sale consideration amount by the purchaser and the purchaser has been put into actual possession of the purchased property on the day of its purchase.
Further the Plaintiffs have produced the certified copy of the Suit Plaint in OS No 564/1982 at ExP1. As per this document it is seen that, the said suit is filed by Mr M Natesh S/O: J Munniswamy the father of the present Defendant Nos 1 to 3, alongwith his wife and children, present Defendant No 1 was Plaintiff No 5 therein, present Defendant No 2 was Plaintiff No 6 therein and 19 O.S.No.26276/2013 present Defendant No 3 was Plaintiff No 4 therein, against 1) M Loganathan husband of present Plaintiff No 1 and father of present Plaintiff No 2; 2) Smt Jagadamba the mother of the Defendant No 4, for the relief of Partition and Seperate Possession, wherein the present suit schedule property was the Suit Schedule A property therein. Further as per the said plaint, the Defendant Nos 1 to 3 and their father has avered at Page Nos 4 to 8 as under:
"4. .... Somehow, the said documents were obtained and got executed infavour of Smt Chinnapullamma finally by virtue of Sale Deed Executed by Sri V C Abdulla in her favour on 13/07/1943 (Thirtheenth Day of July Nineteen Forty Three).
5. The First Plaintiff submits that his mother expired on 1906 1953 (Nineeteenth day of June Nineteen Fifty Three) and since Smt Gangamma and Smt Dhannammal (who had no issues) died long aga. Smt Chinnapuliyamma, the First Plaintiff and the first Defendant became the sole surviving legal heirs 20 O.S.No.26276/2013 and beneficiaries legally and lawfully entitled to inherit 1/3rd share (One third) in the Plaint Schedule "A"
Properties.
6. .... Henc, the first Plaintiff was forced and compelled to render and contribute substantial portions of his income and earnings in order to maintain the entire Joint Family even after his marriage which was collaborated and performed during the year 1950 (Nineteen Fifty). .......
7. The First Plaintiff submits that through the aforesaid sources and the nucleus derived from the Joint Funds efforts, venture and contributions made by the First Plaintiff. Smt Chinnapullayamma derived and acquired all the movable properties and belongings which are morefully detailed at Schedule "B"
hereunder. She was the Karta managing the entire affairs of the joint family.
8. ...... Since the aforesaid Chinnapullayamma was an aged woman and the Karta or manager of 21 O.S.No.26276/2013 the Joint Family of the First Plaintiff allowed and permitted her to receive the said rents also. The Plaintiff werein continous and undisturbed possession, occupation and enjoyment of a portion of the aforesaid property ever since the past morethan 33 (Thirty Three) years apporximately."
As per the above pleadings, on the part of the present Defendant Nos 1 to 3 and their father M Natesh, it can be said that it is an admitted fact from the side of the Defendant Nos 1 to 3 that, the Suit Schedule Property is purchased by Chinnapulliamma, but they have further contended that it was purchased in the name of Chinnapulliamma by M Natesh, as she was not an earning hand. Even the said contentions have been raised by the Defendant Nos 1 to 3, in the present suit. It is for the Defendant Nos 1 to 3 to prove the same.
22O.S.No.26276/2013
16. Coming to the ocular evidence, more specifically the cross examination of DW1 (Defendant No 4), at Page No 6, Para Nos 2 & 4, which read as under:
"It is true to suggest that the initial owner of the suit schedule property is one Smt Chinnapulliamma. Smt Chinnapulliamma was married but she was not having any issues out of her marriage. The said Smt Chinnapulliamma had two sisters by names Gangamma and Dhanamma and two brothers by names Loganathan and Natesh".
"It is true to suggest that
Dhanamma, the sister of
Chinnapulliamma died issueless."
Further as per the cross examination of DW2 (Defendant No 2), at Page No 8, Para No 2 & at Page No 16, Para No 1, which read as under:
"It is true to suggest that suit schedule property initially belonged to Chinnathayamma. It is true to suggest 23 O.S.No.26276/2013 that said Chinnathayamma was having 5 children, viz., 1) Gangamma, 2) Chinnapulliamma, 3) Dhanamma, 4) Loganathan and 5) Natesh. It is true to suggest that Jagadhamba is the daughter of the, 1st daughter of Chinnathayamma, by name Gangamma".
"Gangamma is the sister of my father Chikkapuliyamma (sic., Chinnapulliamma) is the younger sister of Gangamma. It is true to suggest that this 3 sisters are having two brothers one Loganathan and one Nateshan. It is true to suggest that all this 5 persons viz., 1) Gangamma; 2) Chinnapuliamma, 3) Dhanamma; 4) Loganathan and 5) Nateshan are the children of Chinnathayamma and Muniswamy. It is true to suggest that Chinnapuliamma and Dhanamma died issueless. It is true to suggest that Gangamma is having a daugher by name Jagadhamba. It is true to suggest that Defendant No 4 is the son of Jagadhamba."24
O.S.No.26276/2013 Further as per the cross examination of DW2(Defendant No 2), at Page No 9, Para Nos 6 & 7, which read as under:
"I donot know whether V. C. Abdulla has executed a registered Sale Deed infavour of Chinnapuliamma on 13.07.1943".
"I donot have any documents to show my father has paid consideration amount of Rs 450/ to his sister Chinnapuliamma. Witness volunteers that since Chinnapulliamma was the head of the family, my father handed over the consideration amount to her for the purchase of the said property."
As per the above ocular evidence it can be said that Chinnathayamma and Muniswamy were having five children, viz., 1) Gangamma the maternal grandmother of the Defendant No 4; 2) Chinnapulliamma; 3) Dhanamma; 4) Loganathan the husband of the Plaintiff No 1 and the father of the Plaintiff No 2; and 5) Natesh the father of the Defendant Nos 1 to 3. Chinnapulliamma and 25 O.S.No.26276/2013 Dhanamma died issueless. Suit Schedule Property is purchased in the name of Chinnapulliamma. As per the Plaintiffs and the Defendant No 4, it was purchased by Chinnapulliamma itself, and as per Defendant Nos 1 to 3, it was purchased in the name of Chinnapulliamma, but the consideration was paid by Natesh, their father.
17. As per ExP16Saledeed dated 13.07.1943, sale consideration amount is paid by Chinnapulliamma the purchaser. It is a Registered Document, a presumption is attached to it, unless contrary is proved.
Comming to the Documentary evidence, more specifically ExP23Deposition of the present Defendant No 1, who was DW1 in OS No 11035/1990, more specifically at Page No 10, line Nos 15 to 20, which reads as under:
".... It is true to suggest that Chinnapulliamma had purchased the suit property from Abdul Khader. It is false to suggest that defendant had not 26 O.S.No.26276/2013 financed Chinnapulliamma to purchase it. I have no documents to show that my father has contributed amount for its purchase. ....."
Further coming to the ocular evidence more specifically cross examination of DW2 at Page No 9, Para Nos 4 to 7, which read as under:
"Que: Chinnapulliammma paid an amount of Rs450/ to V C Abdulla and got executed registered SaleDeed in her favour?
Ans: My father paid the said amount to Chinnapulliamma to purchase the said property.
I donot know whether V. C. Abdulla has executed a registered Sale Deed infavour of Chinnapuliamma on 13.07.1943".
"I donot have any documents to show my father has paid consideration amount of Rs 450/ to his sister Chinnapuliamma. Witness volunteers that since Chinnapulliamma was the head of the family, my father handed 27 O.S.No.26276/2013 over the consideration amount to her for the purchase of the said property."
So as per the above documentary and ocular evidence, it can be concluded that the Suit Schedule Property is purchased by Chinnapulliamma and the contentions of the Defendant Nos 1 to 3, that their father paid the consideration amount to Chinnapulliamma to purchase the said property cannot be accepted, in the absence of any cogent evidence to that effect.
18. The Plaintiffs contend that Smt Chinnapulliamma had requested that the concerned Local authorities to enter her name as Khatedar of the suit schedule property. The Plaintiffs have produced the Special Notice issued by the BBMP dated 26.02.1980 at ExP10; Notice of Enquiry dated 02.02.1947 at ExP11; Declaration submitted by her at ExP12; Endorsement ExP13; Acknowledgment dated 22.01.1979 issued by Local authorities, for 28 O.S.No.26276/2013 receipt of application for khata registration, at ExP14.
Further the Plaintiffs and Defendant No 4 contends that Chinnapulliamma had executed Will dated 23.08.1991 at ExP15 and that the Loganathan was managing the suit schedule property, for the same the Plaintiffs have produced Lease Ageements dated 20.10.1981, executed infavour of Saraswamma; Sampangi and Papanna, at ExP6 to ExP8.
Since the Appeal bearing RFA No 1220/2002 is allowed and a dictum has been passed by the Hon'ble High Court of Karnataka, discarding the contention of Lognathan with regard to Will produced by the Plaintiffs at ExP15, the same cannot be considered, now in this case. Further since the said verdict on ExP15 has attained its finality, the said plea of the Plaintiffs and the Defendants cannot be considered at all.
29O.S.No.26276/2013
19. Further the Defendant Nos 1 to 3 contend that their father Natesh was in possession of the Suit schedule Property and he was managing all the affairs of the suit schedule property, during the lifetime of Chinnapulliamma, as well as after her death.
The Defendant Nos 1 to 3, have got marked Lease Agreement dated 01.08.1984, executed by Natesh infavour of Sarasa as ExD1, in the cross examination of PW1, on confrontation. Endorsement dated 14.09.1982 ar ExD4; Receipts at ExD5 to ExD11; Form No I at ExD12; Notice U/Sec 8 dated 13.04.1982 at ExD13; Orders in HRC No
240.ACC.82 at ExD14; Lease Agreements dated 01.12.1981 at ExD19 to 21; Certified copy of the Judgment in HRA No 835/89 at ExD15; Orders passed in HRC No 92/2013 as per ExD16 and ExD17.
Further coming to the ocular evidence, more specifically cross examination of DW1 (Defendant No 30 O.S.No.26276/2013
4) at Page No 9, Para Nos 2 & 3, which read as under:
"At present katha pertaining to the suit schedule property stands in the name of Chinnapulliamma. I have not produced any documents to show that katha of the suit schedule property stands in the name of Chinnapulliamma. It is false to suggest that I am deposing falsely that katha of the suit schedule property stands in the name of Chinnapulliamma.
It is false to suggest that katha of the suit schedule property stands in the name of the father of the Defendant Nos 1 to 3 by name Natesh and he was paying the assessment taxes to the local authorities."
Further as per the cross examination of DW2 (Defendant No 2) at Page No 14, Para Nos 4 & 5 and at Page No 15, Para No 1, which read as under:
"I have produced documents like katha certificate to show that my father M Natesh was the absolute owner of the 31 O.S.No.26276/2013 entire ancestral property after the death of his sister Chinnapulliamma, who died on 24.08.1981.
It is false to suggest that my father was not the absolute owner of the property shown as the schedule property under ExD20 as on the date of executing ExD20, as the name of my father was mutated in the records of the said property as per ExD4endoresement dated 04.09.1982.
I donot know on the basis of which document, my father got transfered the katha pertaining to the suit schedule property in his name as per ExD4. It is false to suggest that my father without having any absolute right, title and interest over the suit schedule property has got created ExD4endorsement in his favour."
Further the Defendant Nos 1 to 3 contend that their father was receiving the rents, inrespect of the suit schedule property. Let us see, as the receiving of rent, as per the occular evidence, more specifically the cross examination of DW2 (Defendant No 2), at 32 O.S.No.26276/2013 10, Para No 4; at page No 14, Para No 2, which reads as under:
"It is true to suggest that Chinnapulliamma was receiving the rents from the tenants inducted in the suit schedule property, then.
It is false to suggest that Chinnapulliamma had entered into rental agreement with the 3 tenants available in the suit schedule property. Witness volunteers that his father had entered into the rental agreements with the said tenants and Chinnapulliamma used to collect the rent from them."
Thus as per the above oral and documentary evidence on record, it can be concluded that Chinnapulliamma was excersing the right of ownership, over the suit schedule property and sometimes Lognathan and sometimes Natesh, being the brothers of Chinnapulliamma were maintaining the suit schedule property, by entering into an agreements of rents, etc. 33 O.S.No.26276/2013 Further the Defendant Nos 1 to 3 have failed to prove, as to on what basis their father Natesh got transfered the Khata pertaining to the suit schedule property, in his name.
Thus it can be concluded that neither Lognathan nor Natesh was acting as the owners of the Suit Schedule Property, but they were acting as a Care Takers of the Suit Schedule Property.
20. Further the Learned Counsel representing the Defendant Nos 1 & 2, would contend that Natesh was in possession of the Suit Schedule Property, since 3035 years, his possession was undisturbed/uninterrupted and with the full knowledge of the entire world, including the present Plaintiffs and the Defendant No 4, so Nateshthe father of the Defendant Nos 1 to 3, so he became the owner, as he acquired ownership by way of adverse possession.
As per the decision of the Hon'ble Apex Court in the case of P.T.Munichikkanna Reddy V/s 34 O.S.No.26276/2013 Revamma, reported in (2007) 6 SCC 59; it is observed in Para No.5 that, "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it, being open, continuous and hostile".
21. In Halsbury's Law of England, IV Edition, Volume 28 Para Nos.777, 783, and 785; reads as under:
"777. Position of person in adverse Possession: While a person who is in Possession of land without title continues in Possession, then, before the statutory period has elapsed, he has a transmissible interest in the property, which is good against all the world except the rightful owner, but an interest which is liable at any moment to be defeated by the entry of the rightful owner; and, if 35 O.S.No.26276/2013 that person is succeeded in Possession by one claiming through him who holds until the expiration of the statutory period, the successor has then as good as right to the Possession as if he himself had occupied for the whole period".
"783. Extinction of title: At the expiration of the periods prescribed by the Limitation Act 1939 for any person to bring an action to recover land (including a redemption action) or an action advowson is extinguished. This is subject to the special provisions relating to settled land and land held on trust and the provisions for constituting the proprietor of registered land a trustee for the person who has acquired title against him. The extinguished title cannot afterward be revested either by reentry or by a subsequent payment or acknowledgment of title. A rent charge is extinguished when the remedy to recover it is barred".
"785. Nature of title acquired:
The operation of the statutory provision for the extinction of title is 36 O.S.No.26276/2013 merely negative; it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of Possession and resting on the infirmity of the right of others to eject him.
A title gained by the operation of the statute is a good title, both at law and in equity, and will be forced by the Court on a reluctant purchaser. Proof, however, that a vendor and those through whom he claims have had independent Possession of an estate for twelve years will not be sufficient to establish a saleable title without evidence to show the state of the title at the time that Possession commenced. If the contract for purchase is an open one, Possession for twelve years is not sufficient, and a full length of the title is required. Although Possession of land is prima facie evidence of seisin in fee, it does not follow that a person who has gained a title to land from the fact of certain persons being barred of their rights has the fee simple vested in himself; for, although he may have 37 O.S.No.26276/2013 gained an indefeasible title against those who had an estate in Possession, there may be persons entitled in reversion or remainder whose rights are quite unaffected by the statute".
(Underline is mine, to lay emphasis)
22. Adverse Possession means a hostile Possession, by clearly asserting hostile title in denial of the title of the true owner. It is well settled Principle that a party claiming adverse Possession must prove that, his Possession is "Nec vi"; "Nec Clam"; "Nec Precario", that is, peaceful, open and continuous. Therefore the Possession claimed by a person to be the owner in adverse Possession must be adequate in continuity, in publicity and in extent to show that his Possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Therefore, a person who claims adverse Possession, should show:
a) on what date he came into Possession;38
O.S.No.26276/2013
b) what was the nature of his Possession; c ) whether the factum of Possession was known to the other party (Real owner);
d) how long his Possession has continued; and
e) his Possession was open and undisturbed.
A person pleading adverse Possession has no equities in his favour, since he is trying to defeat the rights of a true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse Possession.
23. As per Sec. 27 of the Limitation Act, 1963, which operates to extinguish the right to property of a person, who does not sue for its Possession, within the time allowed by Law. The right extinguished is the right, which the lawful owner has and against whom a claim for adverse Possession is made, therefore the person who makes a claim for adverse Possession has to plead and prove the date on and from which he claims to be exclusive, continuous and undisturbed Possession.
39O.S.No.26276/2013
24. It is now well settled principle of law that, mere Possession of the land would not ripen into possessory title for that purpose, possessor must have animus Possidendi and hold the land adverse to the title of the true owner. Animus Possidendi is the wellknown requisite ingredient of adverse Possession.
25. By applying the above principles of law, the Defendant Nos.1 to 3 have failed to show that from which date, they came into Possession of the Suit Schedule Property; what was the nature of their Possession; whether the factum of Possession was known to Smt. Chinnapulliamma, after her death, such possession of Defendant Nos.1 to 3, were known or made known to the heirs of Gangamma, and the heirs of Loganathan. Further the Defendant Nos.1 to 3 have failed to prove that their such adverse Possession over the Suit Schedule Property was long, uninterrupted, peaceful, continuous and open. Under such circumstances, I am of the 40 O.S.No.26276/2013 considered view that, the Defendant Nos.1 to 3 have failed to prove that, they are the owners of the Suit Schedule Property, by way of adverse Possession. I find support to my above view, as per the decision of the Hon'ble Apex Court in the case of Ravindra Kaur Grewal and Others V/s Manjit Kaur and Others; (Civil Appeal No.7764/2014, date of disposal :07.08.2019), with Radhakrishna Reddy (Dead) through Lrs., V/s G. Ayyavoo & Others (S.L.P. (Civil) Nos. 83328333 of 2014, date of disposal 07.08.2019).
26. Lastly, as per the contentions of the present Defendant Nos 1 to 3 takenup in OS No 564/1982ExP1, alongwith their father Natesh, more specifically at Page No 10, which reads as under:
"10. ..... Smt Chinnapulliamma died intestate on 24.08.1981 (Twenty Fourth day of August Nineeteen eighty one) leaving behind the First Plaintiff and the First Defendant as the sole surviving legal heirs to inherit equal 41 O.S.No.26276/2013 share, since she too had no issues.
Thus, the Plaintiffs are legally and lawfully entitled to inherit 1/2 (Half) of the share in all the aforesaid Schedule "A, B and C" properties."
So as per the said contention, in ineqvivocal terms the Defendant Nos 1 to 3 and their father and other heirs of their father Natesh contend that, after the death of Chinnapulliamma, Natesh and Lognathan are the only two persons, who will succeed to the estate left by Chinnapulliamma. It is an admission in pleadings, which does not require any explaination.
Once it is admitted that the Suit Schedule Property belonged to Chinnapulliamma, and after her death the same will devolved upon her heirs, then unless disruption of the property or partition of the property is shown, though Natesh the father of the Defendant Nos 1 to 3, or his heirsthe Defendant Nos 1 to 3 are in possession of the Suit Schedule Property, his/their possession is to be presumed, to 42 O.S.No.26276/2013 be in joint, with that of the possession of his brother Lognathan and his sister Gangamma, though they or their legal heirs are not in physical possession of the said property. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka in the case of Smt. Nanjamma V/s Smt. Akkayamma (Since deceased) by her Legal Heirs and others, reported in 2015 (3) Kar. L.J. 357 (DB); wherein it is held that;
"Plaintiff continues to be in joint possession of the suit property as on the date of the suit, even though the Plaintiff is not in physical possession, in law, she is deemed to be in joint possession. Possession of one co owner is the possession of all co owners."
27. Thus I am of the firm opinion that the Plaintiffs and Defendant No 4 have proved that the Suit Schedule Property was purchased by Chinnapulliamma by virtue of a Registered Sale 43 O.S.No.26276/2013 deed ExP16; Chinnapulliamma died on 24.08.1981 as per ExP9; and since the relationship is admitted, the heirs of Gangamma; the heirs of Lognathan and the heirs of Natesh, will succeed the estate the Suit Schedule Property, left by Chinnapulliamma.
Hence I answer ISSUE NO 1 IN THE
AFFIRMATIVE AND ISSUE NO 2 IN THE
NEGATIVE.
28. ISSUE NO. 5:
The Defendant Nos 1 to 3 have contended that the present suit is not maintainable on two counts;
1) as the earlier Suit filed for the relief of Partition at OS No 564/1982 is dismissed and the Original Suit filed by Lognathan and Jagadhamba for the relief of Declaration, Injunction and Mesne Profit at OS No 11035/1990, has been dismissed in RFA No 122.0/2002, which Judgment has attained its finality; 2) Relief of Partition claimed by the Plaintiffs and the Defendant No 4 is barred by Limitation.
44O.S.No.26276/2013
29. The Plaintiffs have produced the Suit Plaint of OS No 564/1982 at ExP1; Certified copy of the Orders passed on IA Nos I and II in OS No 564/1982 at ExP17 and Certified copy of the Orders passed in Misc No 691/1989 at ExP3.
Coming to the ocular evidence, more specifically the cross examination of DW1(Defendant No 4), done on behalf of the Plaintiffs, at Page No 5, Para No 1, line Nos 6 to 13, which reads as under:
".... I am aware that the father of the defendant Nos. 1 to 3 M Natesh had filed suit for the relief of partition at OS No 564/1982 against Loganathan the husband of Plaintiff No 1 and the father of the Plaintiff No 2. It is true to suggest that my mother Jagadambha was the 2nd defendant in that suit. The said suit OS No.564/1982 was allowed. It is false to suggest that OS No 564/1982 was dismissed for default."
Further as per the cross examination of DW2 (Defendant No 2) done on behalf of the Plaintiffs, at 45 O.S.No.26276/2013 Page No 11, Para No 2 as well as at Page No 12, Para No 1, which read as under:
"I do not know whether my father had filed Original suit bearing OS No 564/1982 inrespect of the suit schedule property, after the death of Chinnapulliamma. I have seen the documents produced by the Plaintiffs in this case. I do not know whether I was the Plaintiff as party in OS No 564/1982."
"I do not know whether my father had filed a suit at OS No 564/1982 on the file of the 9 th Addl. City Civil & Sessions Judge, Bengaluru. M Natesh 1st Plaintiff in OS No 564/1982 is my father, 2nd PlaintiffMariyamma in OS No 564/1982 is my mother, M. Mariya Susai, N Teressa and N Sagayam the Plaintiff Nos 3 to 5 in OS No 564/1982 are my sisters. I do not know about the fact that whether the suit OS No 564/1982 was dismissed for default on 20.07.1989. I do not know whether the Plaintiffs of OS No 564/1982 had filed Misc case at Misc No 691/1989 as per ExP3, for restoration of OS No 46 O.S.No.26276/2013 564/1982. It is true to suggest that I was aged about 21 years as on 20.07.1989, when the suit bearing OS No 564/1982 was dismissed for default. I am not aware about the fact that Misc No 691/1989 was allowed on 26.03.1994 and the suit OS No 564/1982 was got restored to its original file."
As per the above documentary evidence as well as the ocular evidence, it is seen that, the suit OS No 564/1982 is filed by Mr M Natesh S/O: J Munniswamy the father of the present Defendant Nos 1 to 3, alongwith his wife and children, present Defendant No 1 was Plaintiff No 5 therein, present Defendant No 2 was Plaintiff No 6 therein and present Defendant No 3 was Plaintiff No 4 therein, against 1) M Loganathan husband of present Plaintiff No 1 and father of present Plaintiff No 2; 2) Smt Jagadamba the mother of the Defendant No 4, for the relief of Partition and Seperate Possession, wherein the present suit schedule property was the 47 O.S.No.26276/2013 Suit Schedule A property, therein. Interim orders were passed on IA No 1 and the same was vacated on hearing both the parties as per ExP17. And the said suit came to be dismissed for default on 20.07.1989. And the said suit came to be restored in Misc 691/1989 on 26.03.1994 as per ExP3, with a condition, the Plaintiff (Natesh and his heirs) have to pay an amount of Rs 100/. But the said condition was not satisfied by the Plaintiffs in OS No 564/1982.
So, it can be concluded that the said Suit OS No 564/1982, has not been disposedoff on merits and has not been ended with logical conclusions.
30. The Defendant Nos 1 to 3 have produced Suit Plaint, Written Statement and Issues in OS No 11035/1990, at ExD22 to ExD24, respectively. The Plaintiffs have produced the Judgment passed in OS No 11035/1990 at ExP2. Deposition of present Defendant No 1 who was DW1 in OS No 11035/1990 48 O.S.No.26276/2013 at ExP23. Certified copy of Orders passed in Spl (Civil) 17655/2005 at ExP4 and at ExP4(A).
Coming to the ocular evidence, more specifically the cross examination of DW1(Defendant No 4), done on behalf of the Plaintiffs, at Page No 5, Para No 2, which reads as under:
"I am aware that the husband of the Plaintiff No 1 and the father of the Plaintiff No 2 by name Loganathan has filed a suit on the basis of a Will, bearing OS No 11035/1990, agaisnt the father of defendant Nos 1 to 3 by name M. Natesh. It is true to suggest that my mother Jagadambha was the 2nd Plaintiff in that suit. The said suit OS No 11035/1990 was allowed. The said Natesh had challenged the Judgment and decree passed in OS No 11035/1990 before the Hon'ble High Court of Karnataka, Bengaluru, the said appeal came to be allowed. My mother Jagadambha and the father of the Plaintiff No 2 Loganathan had preferred SLP No 17655/2005 before the Hon'ble Supreme Court of India.49
O.S.No.26276/2013 The Hon'ble Supreme Court of India was pleased to pass an order of Injunction against the father of the present defendant No 1 to 3 Natesh, from chaning the identity of the suit schedule property. Since my mother expired, we could not pursue the same, the said SLP before the Hon'ble Supreme Court of India was dismissed."
Further as per the cross examination of DW2 (Defendant No 2), done on behalf of the Plaintiffs, at Page No 12, Para No 2; as well as, at Page No 13, Para Nos 2 & 5, which read as under:
"It is false to suggest that Loganathan and his legal heirs have filed a suit at OS No 11035/1990 against my father and after his death agaisnt his legal heirs including me for the relief of declaration, to declare that they are the owners of the suit schedule property on the basis of the Will executed by Chinnapulliamma. It is false to suggest that I have 50 O.S.No.26276/2013 participated in OS No 11035/1990 by engaging the counsel on my behalf. I do not know whether the said suit was decreed infavour of the Legal heirs of Loganathan. I do not know whether my sister N Sagayam had deposed in the said suit, on behalf of all the legal heirs of my father, as per ExP23."
"It is false to suggest that we are not deposing (sic., leading) the evidence of our sister N Sagayam inorder to over come the admissions given by her in OS No 11035/1990, as per ExP23."
"I am aware about the fact that the Special Leave Petition bearing No. 17655/2005 filed by the legal heirs of M Loganathan before the Hon'ble Supreme Court of India is dismissed, as per ExP4(a)."
As per the above documentary evidence as well as ocular evidence, it can be said that initially the suit OS No 11035/1990 was filed by Loganthan and Jagadambha against Nateshan, for the relief of Declaration, Injunction and Mesne Profit, claiming 51 O.S.No.26276/2013 ownership on the basis of the WillExP15. The said suit came to be decreed, declaring the Plaintiffs as owners of the suit schedule property, by accepting their contention, withregard to WillExP15, as executed by Chinnapulliamma in their favour and ordered that they are entitled to have mesne profits.
Thereafter Nateshan preferred Appeal being aggreived by the Judgment and Decree passed in OS No 11035/1990, before the Hon'ble High Court of Karnataka, Bangalore at RFA No 1220/2002, the said Appeal was allowed and the Judgment and Decree passed in OS No 11035/1990 came to be setaside, consequently the said suit came to be dismissed.
Thereafter the legal heirs of Lognathan and Jagadambha prefered an appeal before the Hon'ble Supreme Court at Spl (Civil) No 17655/2005, the same was dismissed on failing to take steps, as per ExP4(A).
52O.S.No.26276/2013 So, it can be concluded that the said Suit OS No 11035/1990, has been dismissed and the claim of Loganathan and Jagadambha that they have become the owners of the Suit Schedule Property by virtue of WillExP15 is turned down and not accepted.
31. So the Partition suit filed by Nateshan and his heirs against Loganathan and Jagadambha at OS No 564/1982 is not concluded with its logical conclusion, being so, the present suit filed by the Plaintiffs for the very same relief, relief of Partition, that to inrespect of the very same property, the Suit Schedule Property, still inbetween the same parties, is maintainable in law. I find support to my above view as per the Principles laid down by the Hon'ble Apex Court in the case of Kamala & Ors Vs K T Eshwara Sa & Ors, reported in AIR 2008 SC 3174, wherein it is held that, "Partition Suit which has not been taken to its logical conclusion, by getting the properties 53 O.S.No.26276/2013 partitioned, by metes and bounds, will not have any effect on the subsequent suit filed for the very same relief of Partition".
Further as per the decision of the Hon'ble High Court of Karnataka, in the case of Shivagouda Appanna Belavi & Others V/s Neelappa Appanna Belavi, since deceased by Lrs., reported in 2018 (3) KCCR 2151; wherein it is held that;
"It is well settled principle that if a suit for Partition is dismissed on techinical reasons, then under such circumstances, the Plaintiff can file one more suit, by rectifying the defects, in the suit and the second suit is not barred".
Thus, applying the principles of law to the present set of facts, I am of the considered opinion that the present suit filed by the Plaintiffs for the relief of Partition and Separate Possession is not barred, as the earlier suit at O.S.No.564/1982 filed by M. Natesh and his heirs, including the present Defendant Nos.1 to 3 for the relief of Partition, which 54 O.S.No.26276/2013 was dismissed for default and was got restored in Misc. No.691/1989, the said suit has remained uncontested.
So the present suit filed by the Plaintiffs is maintainable, as the earlier suit filed by Nateshan and his heirs at OS No 564/1982 is not disposed off on merits, inotherwords, it has not reached, its logical conclusion.
32. Further the Defendant Nos 1 to 3 contend that the suit filed by the Plaintiffs for the relief of Partition is barred by law of limitation, as the suit for Partition filed by Nateshan and his heirs at OS No 564/1982 is disposedoff on 26.03.1994 as per ExP3 and the suit filed by Loganathan and Jagadambha at OS No 11035/1990 is disposed off on 19.09.2011 as per ExP4(a).
55O.S.No.26276/2013 As discussed above, when the Plaintiffs and the Defendant No 4 have shown that the Suit Schedule Property was purchased by Chinnapulliamma, she died on 24.08.1981, thereafter since no partitions have been effected inrespect of the Suit Schedule Property, the Plaintiffs have filed the present suit. Having observed so, the suit of the Plaintiffs is neither attracted by Art 109 or 110 of the Limitation Act, so I do not find any stuff in the contention of the Defendant Nos 1 to 3, that the suit of the Plaintiff is barred by Limitation Act. Hence the said contention of the Defendant Nos 1 to 3 is rejected.
Thus viewing from any angle, the present suit filed by the Plaintiffs for the relief of Partition is absolutely maintainable, as yet no partitions have taken place inrespect of the Suit Schedule Property.
Hence, I answer Issue No. 5 in the Negative.
56O.S.No.26276/2013
33. Issue No.3:
The Plaintiffs and the Defendant No 4 contend that Nateshan and his heirs, including the Defendant Nos 1 to 3, have been converted to Christianity, so they are not entitled for Partition, in the property left by Chinnapulliamma. On the otherhand, the Defendant Nos 1 to 3 contend that the Defendant No 4 had got himself converted to Christianity, so he is not entitled for any share in the porperty of Chinnapulliamma.
Let us see as to the pleadings of the Plaintiffs, more specifically at Para No 13, which reads as under:
"13. It is pertinent to note that the deceased M Natesh was a Hindu until his death and after his death, the Defendant Nos 1 to 4 have converted themselves to Christianity. Hence as per Hindu Law of Succession, they are not eligible to secure any share much less half share in the Suit Schedule Property. The admission is made by 57 O.S.No.26276/2013 the Defendant No 1 in the course of her deposition as DW! In OS No 11035/1990."
Further as per ExP23Deposition of present Defendant No 1 as DW1 in OS No 11035/1990, more specifically at Page No 9, Para No 2, Line Nos 1 to 3, which reads as under:
"Defendant and Lrs of Defendant converted into christainity in 1993. After convertion our names have been changed. ....."
Further as per cross examination of DW1 (Defendant No 4), cross examined on behalf of Defendant Nos 1 & 2, at Page No 8, Para No 2, which reads as under:
"I have not stated in my affidavit examination in chief that, children of Plaintiff No 1 Poopathiamma have converted and embraced Christianity. It is true to suggest that all the children of my mother Jagadhamba have converted and embraced Christianity, except me. I have not produced any 58 O.S.No.26276/2013 document to show that the other children of my mother Jagadhamba have converted and embraced Christianity. It is false to suggest that I am deposing falsely that the children of my mother Jagadhamba have converted and embraced Christianity."
Further as per cross examination of DW2 (Defendant No 2), cross examined on behalf of Plaintiffs, at Page No 13, Para No 4, as well as, at Page No 16, Para No 2, which read, as under:
"My father died as a Hindu. No partitions have taken place inbetween my father Nateshan and his siblings, by virtue of any registered partition deed."
"It is false to suggest that my father has embraced Christianity by renouncing Hinduism, during his childhood, so we the sons of Nateshan are not entitled for any partition in the suit schedule property, as we do not have any right in it. It is false to suggest that my father after embracing 59 O.S.No.26276/2013 Christianity has got his name changed as Nateshan Josheph."
As per the above evidence, it can be said that neither the Plaintiffs and the Defendant No 4 have proved that Nateshan - the father of the Defendant Nos 1 to 3 has renounce Hinduism, prior to his death. Admittedly the Plaintiffs has admitted as per Plaint averments at Para No 13 of the Suit Plaint that M Natesh, died as Hindu.
So also the Defendant Nos 1 to 3 have failed to show that Jagadambha the mother of the Defendant No 4 had renounced Hinduism, prior to her death.
34. As per Sec 26 of Hindu Succession Act, 1956, which reads as under:
"Sec 26. Convert's descendants disqualified. Where, before orafter the commencement of this Act, a Hindu has ceased orceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property 60 O.S.No.26276/2013 of any of thier Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens."
Applying the said provision of law to the present facts of the case. Neither Jagadambha the mother of the Defendant No 4 nor Natesh the father of the Defendant Nos 1 to 3 are shown, to have got converted to Christianity, by renoncing their religion Hinduism. So neither the Defendant No 4, nor the Defendant Nos 1 to 3, are not disqualified. I find support to my above view as per the decision of the Hon'ble High Court of Calcutta in the case of Asoke Naidu Vs Raymond S Mulu; reported in AIR 1976 Calcutta 272 as well as the decision of the Hon'ble High Court of Andhra, in the case of Shabana Khan Vs D B Sulochana and others; reported in 2008(2) ALD 818, wherein in both the cases it is held that, "Sec 26 of Hindu Succession Act, 1956 does not disqualify a convert. It only disqualifies the descendants of the 61 O.S.No.26276/2013 converts who are born to the convert after such conversion from inheriting the property of any of their Hindu relatives".
So the contention of the Plaintiffs and the Defendant No 4 that Defendant Nos 1 to 3 are not entitled to succeed the estate of Chinnapulliamma as well as the contention of the Defendant Nos 1 to 3 that the Defendant No 4 is not entitled to succeed the estate of Chinnapulliamma, holds no water and hence it is not acceptable.
Hence, I answer Issue No.3 in the Negative.
35. Issue No.6:
The Learned Counsel for the Defendant Nos.1 & 2 would contend that Plaintiffs and the Defendant No 4 are not in possession of the Suit Schedule Property, so they have to pay the Court fee as per Sec.35(1) of the Karnataka Court Fees and Suit Valuation Act, 1958.62
O.S.No.26276/2013 It is an admitted fact that the Suit Schedule Property, originally belonged to Chinnapulliamma and after her death, the same is to be devolved upon her heirs. The Plaintiffs being the heirs of Loganathanthe brother of Chinnapulliamma, and the Defendant No 4 being the son of Jagadhamba the sister of Chinnapulliamma, so they are the co owners of the Suit Schedule Property along with the Defendant Nos 1 to 3. Under such circumstances, even if the Plaintiffs and the Defendant No 4 are not in physical possession of the Suit Schedule Property, in law they are deemed to be, in joint possession. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka in the case of Smt. Nanjamma V/s Smt. Akkayamma (since dead) by her LRs., and Others; reported in 2015 (3) Kar. L.J. 357 (DB), wherein it is held that;
"Plaintiff continues to be in joint possession of the property on the day of the suit, even though she is not in physical possession, in law she is deemed to be in joint possession. Possession of one coowner is the 63 O.S.No.26276/2013 possession of all the coowners, Court fee paid by such Plaintiff U/Sec.35(2) of Karnataka Court Fees and Suit Valuation Act, is held proper."
Thus Plaintiffs and the Defendant No 4, need not pay Court Fee U/Sec.35(1).
Hence, I answer Issue No.6 in the AFFIRMATIVE.
36. Issue Nos. 4 & 7:
As discussed above, the Suit Schedule Property belonged to Chinnapulliamma and she died on 24.08.1981, leaving behind her, her two brothers Loganathan and Natesh and one sister Gangamma.
The Plaintiffs being heirs of Loganathan; the Defendant Nos 1 to 3 being the heirs of Natesh and the Defendant No 4 being the heir of Gangamma, will become her heirs, as per Section15 of Hindu Succession Act, so the Plaintiffs being the heirs, representing the branch of Loganathan, will be entitled for 1/3rd share; the Defendant Nos 1 to 3, 64 O.S.No.26276/2013 being the heirs, representing the branch of Natesh will be entitled for 1/3rd share and the Defendant No 4 being the heir, representing the branch of Gangamma is entitled for 1/3rd share.
Hence, I answer both the Issue Nos. 4 and 7PARTLY IN THE AFFIRMATIVE.
37. ISSUE NO. 8: In view of my findings on Issue No.1 in the Affirmative; Issue No 2 in the Negative; Issue No 3 in the Negative; Issue No 4 Partly in the Affirmative; Issue No 5 in the Negative; Issue No 6 in the Affirmative and Issue No 7 Partly in the Affirmative, thus I proceed to pass the following:
ORDER The suit of the Plaintiffs is decreed, inpart.
It is declared that the Plaintiffs, representing the branch of Lognathan are entitle to have 1/3rd share, the Defendant Nos.1 to 3, 65 O.S.No.26276/2013 representing the branch of Natesh are entitled to have 1/3rd share and the Defendant No 4, representing the branch of Gangamma, is entitled to have 1/3rd share, in the Suit Schedule Property.
Partition be affected as per the Partition Act.
Looking to the peculiar facts and circumstances of the case, parties to bear their own costs.
Draw Preliminary Decree
accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 28th day of October, 2019) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 66 O.S.No.26276/2013 SCHEDULE:
All that piece and parcel of land with structure now standing thereon bearing Old No.1, New No.12, situated at 'R' Street, Langford Road Cross, Shanthinagar, Bangalore560 027, consisting of 4 portions measuring East to West 39 ft. and North to South 23 ft. and bounded on the:
East by : Property of Gundappa; West by : Shanthinagar Main Road; North by : Property belonging to Bdobi Ramu; South by : 'R' Street.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Sri. Kamalraj.67
O.S.No.26276/2013 LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1: Certified copy of plaint in O.S.No.564/1982 Ex.P.2: Certified copy of plaint in O.S.No.11035 of 1990.
Ex.P.3: Certified copy in Misc.No.691/1989. Ex.P.4: Application to SLA. Ex.P.4(a): Order copy kf SLA.No.17655/2005. Ex.P.5: Tax paid receipt.
Ex.P.6 to Ex.P.8: Three Lease Deeds. Ex.P.9: Death certificate of Chinnapillai Amma. Ex.P.10: Certified Copy of Notice. ExP.11: Certified Copy of notice issued by Land Acquisition officer. Dtd.02.02.1974. Ex.P.12: Application issued to Bengaluru Rent Control Officer dt.12.12.1976. Ex.P.13: Endorsement issued by BBMP. Ex.P.14: Acknowledgement issued by BBMP. Ex.P.15: Will dtd.23.08.1981. Ex.P.16: Certified copy of Sale Deed dtd.03.07.1947. Ex.P.17: Certified copy of Order dtd.04.01.1983. Ex.P.18 & Ex.P.19: C/c of two complaints given to Ashokanagar Police Station, dtd.29.03.1980 & 08.07.1982.
Ex.P.20: C/c of complaint given to City Corporation, Bengaluru.
Ex.P.21: C/c of complaint given to Ashoknagara Police station.
Ex.P.22: Endosement given by Ashoknagara Police. Ex.P.23: C/c of evidence of DW.1 in O.S.No.11035/1990.
68O.S.No.26276/2013 Ex.P.24: C/c of complaint given to BBMP dtd.07.01.2014.
Ex.P.25: Endorsement given by BBMP Ex.P.26: C/c of complaint given to BBMP dtd.15.08.2013.
Ex.P.27: C/c of complaint given to BBMP dtd.23.08.2013.
Ex.P.28: Endorsement given by BBMP Ex.P.29: Complaint given to Shanthinagara BBMP. Ex.P.30 to Ex.P.33: four photos. Ex.P.34: CD.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: Sri. D.Madan.
DW.2: Sri. N. Deepak.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D.1: Lease Agreement dtd.01.08.1984. Ex.D.2 & D.3: Two tax paid receipts. Ex.D.4: Endorsement given by City Corporation of Bengaluru.
Ex.D.5 to Ex.D.11: Certified copy of 7receipts. Ex.D.12: Certified copy of Form No.1. Ex.D.13: Certified copy of notice U/sec. 8 of KRC Act.
Ex.D.14: Certified copy of orders passed by the Rent Controller in HRC No.240.
Ex.D.15: Certified copy of the orders passed in HRC No.835/1989.69
O.S.No.26276/2013 Ex.D.16: Certified copy of the Ordersheet in HRC No.92/2013.
Ex.D.17: Certified copy of the decree in HRC No.92/2013.
Ex.D.18: Certified copy of special notice issued by BBMP.
Ex.D.19 to Ex.D.21: Certified copy of thee lease agreements.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)