Bangalore District Court
Sri. Suresh Salariya vs Sri.Sudhir Salariya on 4 March, 2020
1 OS.No.16908/2004 c/w
OS.No.16375/2006
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for AT MAYOHALL UNIT, (CCH-29)
Judgment in suits
(R.P.91)
BENGALURU.
Present: Smt. B.S. Bharathi, B.Sc, LL.B.
Dated: This the 4th day of March 2020
O.S.No.16908/2004
c/w
O.S.No.16375/2006
O.S.No.16908/2004
Plaintiffs:- 1. Sri. Suresh Salariya,
S/o Late K.C. Salariya,
Hindu, Major,
R/at No.12/1, Versova Layout,
C.V. Raman Nagar Post,
Bangalore - 560 093.
2. Sri. Rajani Satish Salariya,
W/o Late Satish Salariya,
3. Sri. Sanjay Salariya,
S/o Late Satish Salariya,
4. Sri. Ajay Salariya,
S/o Late Satish Salariya,
2 OS.No.16908/2004 c/w
OS.No.16375/2006
5. Smt. Radhika Salariya,
D/o Late Satish Salariya,
No.2 to 5 are Hindus, Majors,
R/at No.777, 1st Stage,
Indiranagar Post,
Bangalore-560 038.
6. Sri. Ashok Salariya,
Since dead by LRs.
1) Smt. Chanda Salariya,
W/o Late Ashok Salariya,
Aged about 51 years,
Residing at No.91/94,
Old No.168, 82/2,
Nagavarapalya,
C.V. Raman Nagar,
Bangalore - 560 093.
2) Smt. Sapna Sharma,
W/o Ravi Sharma,
Aged about 33 years,
Residing at No.60,
Ashoka Venue,
K.R. Garden, Murugeshpalya,
Bangalore - 560017.
3) Smt. Rachna Chopra,
D/o Late Ashok Salariya,
Hindu, Major,
Residing at No.577, Sector 17,
Ashirwad, Faridabad,
Haryana - 121 001.
7. Sri. Subhash Salariya,
S/o Late K.C. Salariya,
Hindu, Major,
R/at No.12/1, Versova Layout,
C.V. Raman Nagar,
Bangalore - 560 093.
3 OS.No.16908/2004 c/w
OS.No.16375/2006
(Pleader by: M/s H.R. Ananthakrishnamurthy)
V/s
Defendants:- 1. Sri.Sudhir Salariya,
S/o K.C. Salariya,
Hindu, Major,
R/at No.168 Old,
New 91/3,
Nagavarapalya,
C.V.Raman Nagar Post,
Bangalore - 93.
2. Smt. Rita Salariya,
D/o K.C. Salariya,
Hindu, Major,
R/at 5-D 304, Green Meadows,
Lokhandwala Complex,
Kandivali (East) 400 101.
3. Smt. Adarsh Salariya,
Since dead by her LR
a) Smt. Deepika Adarsh Salariya,
D/o Late Adarsh Salariya,
Aged about 29 years,
R/at No.151, Aram Nagar - II,
Andheri Versova Road,
Mumbai - 400 016.
(Pleader by : Sri. BKS Adv., for D.1,
Sri. MVK Adv., for D.3, D.2 - Ex-parte)
4 OS.No.16908/2004 c/w
OS.No.16375/2006
O.S.No.16375/2006
Plaintiff:- Smt. Rita Vijay Suri,
D/o Late K.C. Salariya, Hindu,
Aged about 50 years,
Residing at No.5-D, 304
Green Meadows,
Lokhandwala Complex,
Kandivili (East)
Mumbai - 400 101.
(Pleader by: Sri. K.C. Jolly)
V/s
Defendants:- 1. Sri. Suresh Salariya,
S/o Late K.C. Salariya,
Hindu, Major,
Residing at No.12/1,
Versova Layout,
Kagdasapura Main Road,
Bangalore - 560 093.
2. Smt. Rajani,
D/o Late Satish Salariya,
Hindu, Major,
3. Sri. Sanjay Salariya,
S/o Late Satish Salariya,
Hindu, Major,
4. Sri. Ajay Salariya,
S/o Late Satish Salariya,
Hindu, Major,
5. Smt. Radhika Salariya,
D/o Late Satish Salariya,
Hindu, Major,
5 OS.No.16908/2004 c/w
OS.No.16375/2006
Defendant Nos.2 to 5 are
residing at No.777,
1st Stage, Indiranagar,
Bangalore-560 038.
6. Smt. Chanda Salariya,
Aged about 51 years,
W/o Late Ashok Salariya,
Hindu, Residing at No.168,
Nagavarapalya,
C.V. Raman Nagar P.O,
Bangalore - 560 093.
7. Smt. Sapna Sharma,
D/o Late Ashok Salariya, Hindu,
Aged about 33 years,
Residing at No.60,
Ashok Venue, K.R. Gardens,
Murugeshpalya,
Bangalore - 560 017.
8. Smt. Rachana Chopra,
D/o Late Ashok Salariya, Hindu,
Aged about 29 years,
Residing at No.577, Sector 17,
"Ashirwad", Faridabad - 121001.
Haryana.
9. Sri. Subash Salariya,
S/o Late K.C. Salariya,
Hindu, Major,
Residing at 12/1
Versova Layout,
C.V. Raman Nagar,
Bangalore - 56 093.
10. Smt. Adarsh Salariya,
(Since deceased by her
Legal representative)
6 OS.No.16908/2004 c/w
OS.No.16375/2006
10(a) Smt. Deepika Adarsh Salariya,
D/o Late Adarsh Salariya,
Aged about 29 years,
R/at No.151, Aram Nagar - II,
Andheri, Versova Road,
Mumbai - 400 061.
11. Sri. Sudhir Salariya,
S/o K.C. Salariya,
Hindu, Major,
Residing at No.168,
Nagavarapalya,
Kaggadasapura Main Road,
Bangalore - 560 093.
(Pleader by: Sri. HRA Adv., for D.1 to D.5 & 9
Sri. MVN Adv., for D.6 to D.8, Sri. MVH Adv.,
for D.10, Sri. BKB Adv., for D.11)
2.11.2004
Date of Institution of the suits
1.8.2006
Nature of the (Suit or pro-note, suit Declaration
for declaration and possession, suit and Injunction
for injunction, etc.)
Partition
Date of the commencement of 29.3.2012
recording of the Evidence
Date on which the Judgment was 4.3.2020
pronounced
Year/s Month/s Days
Total duration 16 04 02
14 07 03
JUDGMENT
7 OS.No.16908/2004 c/w
OS.No.16375/2006
The suit in OS No.16908/2004 is filed by the Plaintiff No.1 to 7 against the Defendant No.1 to 3 declaring that the Oral Partition took place on 1.1.1981 and the same is recorded by a Deed dtd: 17.5.1981 and also praying for granting order of permanent injunction restraining the Defendants, their agents, servants or any one claiming on its behalf from interfering with the peaceful possession and enjoyment of the properties mentioned in the schedules herein by the Plaintiff No.1, Plaintiff Nos.2 to 5, Plaintiff Nos.6 and 7 respectively in respect of the properties described in the schedule 'A' to 'D' respectively.
2. According to the Plaintiffs, Late Sri. K.C. Salariya was working as an employee of Indian Telephone Industries (ITI). While working in ITI, Late Sri. K.C. Salariya out of his self earnings has purchased site bearing Khaneshumari No.82, measuring East to West 50 feet, North to South 100 feet, of Nagavarapalya Village, Benniganahalli Dhakle, K.R.Puram Hobli, 8 OS.No.16908/2004 c/w OS.No.16375/2006 Bangalore South Taluk, now Bangalore East Taluk under registered Sale Deed dtd: 21.4.1964 from one Sri. Muniyalappa for a sale consideration of Rs.2,500/-. According to the Plaintiffs, Late Sri. K.C. Salariya has purchased adjacent property bearing No.141/2, measuring more or less 1200 sq.ft., from M. Ramaswamy under the registered Sale Deed dtd:
21.4.1966 for Rs.500/-. Sri. K.C. Salariya has purchased the above properties out of his salary savings. The said properties are the absolute and self acquired property of Late Sri. K.C. Salariya and the said properties are adjacent to each other and the same has been kept in one single compact block. When the said properties were purchased by Late Sri. K.C. Salariya except the 7 th Plaintiff, the remaining Plaintiffs were minors and all of the were studying in schools and colleges. The Plaintiffs have produced the two Sale Deeds dtd: 21.4.1964 and 21.4.1966. There was no other joint family property or ancestral property fetching the income to Late Sri. K.C. Salariya except his salaried income. Late Sri. K.C. 9 OS.No.16908/2004 c/w OS.No.16375/2006 Salariya was maintaining his family out of his salary earnings only. According to the Plaintiffs, Sri. K.C. Salariya with an intention to distribute/ settle his absolute and self acquired property among his children during his lifetime itself has made oral partition on 1.1.1981 accordingly distributed his self acquired properties to his five male children namely Sri. Ashok Salariya, Sri. Subhash Salariya, Sri. Satish Salariya, Sri. Suresh Salariya and Sri. Sudhir Salariya. The said oral event of oral arrangement was been reduced into writing on 17.5.1981. In pursuant of the said distribution separate numbers were assigned in respect of the properties distributed to each of his sons namely 91/1, 91/2, 91/3, 91/4 and 91/5, subsequently the said properties merged with the BBMP and renumbered as 82/1 to 82/5. This arrangement has been made during the lifetime of Sri. K.C. Salariya as per his wish to distribute his self acquired property to his five sons.
According to the Plaintiffs, accordingly since 17.5.1981 the five sons were in possession and enjoyment of hteir 10 OS.No.16908/2004 c/w OS.No.16375/2006 respective portions of properties allotted to them by their late father Sri. K.C. Salariya and the five sons are continuously paying separate taxes and the BBMP has registered khatha in their names. Late Sri. K.C. Salariya had assigned the responsibility of performing the marriage of his younger daughter Rita Salariya to his sons, accordingly his sons the Plaintiffs have performed their sister's marriage. According to the Plaintiffs, Sri.K.C. Salariya died on 25.2.1982. The two sons of Late Sri. K.C. Salariya namely Sri. Sathish Salariya and Sri. Ashok Salariya died on 14.3.2000 and 19.11.2005 respectively and their legal representatives are on record.
3. One of the daughters of Late Sri. K.C. Salariya i.e., Smt. Rita Salariya the 2 nd Defendant in the present had filed OS.No.297/2005 before the Bombay City Civil Court at Mumbai Judicature claiming partition and separate possession of property Nos.151 of Aramnagar, Mumbai, 82/1, 82/2, 82/3, 82/4 and 82/5 of Nagavarapalya, Bangalore and No.92, Nagavarapalya, 11 OS.No.16908/2004 c/w OS.No.16375/2006 Bangalore, on the ground that the said property are joint family properties. The said suit was dismissed on 28.2.2006. Subsequently, Rita Salariya the 2 nd Defendant in this suit has filed OS.No.16375/2006 before City Civil Court, Bangalore, for partition and separate possession in respect of property No.168 of Nagavarapalya, Bangalore and Property No.151 of Aramanagar, Mumbai, describing the said properties as joint family properties in 'A' and 'B' schedule in the plaint. Subsequently, on 28.7.2010 Smt.Rita Salariya the Plaintiff in OS.No.16375/2006 the 2nd Defendant in the present suit has deleted the 'B' schedule property on the ground that the said property belongs to Maharashtra Government and the same is not available for partition.
4. Sri. K.C. Salariya was the father of the Plaintiffs and Defendants. Sri. K.C. Salariya was married to Smt.Susheela Salariya. They have two daughters and five sons namely Subhash Salariya, Suresh Salariya, Satish Salariya, Sudhir Salariya and Ashok Salariya. 12 OS.No.16908/2004 c/w
OS.No.16375/2006 Satish Salariya is dead. He has left behind him his wife Rajani Satish Salariya, Sanjay Salariya, Ajay Salariya and Radhika Salariya as his legal representative. The genealogical tree showing the relationship of the parties is produced herewith. Smt. Adarsh Salariya is residing at No.151, Aramnagar, Mumbai-61.
5. In order to perform the marriage of Rita Salariya each one of the brothers should contribute a sum of Rs.5,000/- in all amounting to Rs.25,000/- and that should be utilized for the purpose of her marriage. Therefore, she was not given any share in the properties. She also agreed to the said proposal. The mode of division was discussed threadbare and thereafter the Panchayathdars decided the portions to be allotted to each one of the Plaintiffs and Defendant No.1. The mode of division of properties and payment of Rs.5,000/- by each one of the Plaintiffs No.1, 6, 7 and Satish Salariya and Defendant No.1 was agreed. Defendant No.2 Rita Salariya was also present and agreed to the said suggestion. She did not want any 13 OS.No.16908/2004 c/w OS.No.16375/2006 share in view of the fact that her marriage will be performed by contributions to be made by each one of the brothers. At the time of oral partition, the plan was also prepared. Out of premises bearing Sy.No.141/2 built on Site No.168, the Panchayathdars allotted portions of the property the parties. The parties were put in possession of the said portions. The value of the properties allotted to each one of them was approximately Rs.20,000/-. In order to put the records straight and in order to confirm what took place orally, a memorandum of confirmation of partition was executed. The copy of the same is produced. A sketch is also prepared. The portions of the property are et forth in the sketch. The sketch indicates the portion of properties allotted to each one of them, which contains the signatures of the parties. The said sketch was already presented before the Byappanahalli Grama Panchayath. After the partition, each one of the parties has been in possession of their respective share in the property allotted to them. The khathas of the property allotted to 14 OS.No.16908/2004 c/w OS.No.16375/2006 each of them have been made out in the individual names of the parties and taxes are being paid by them. The Plaintiff No.1 was allotted with the portioned marked in Schedule 'A', to the sketch and described in Schedule 'A'. The 2nd Plaintiff's husband was allotted with the portion marked in Schedule 'B' to the sketch and described in Schedule 'B'. Plaintiff No.3 was allotted with the portion marked in Schedule 'D' to the sketch and described in Schedule 'C'. The Plaintiff No.4 was allotted with the portion marked in Schedule 'E' to the sketch and described in Schedule 'D'. The remaining area to an extent of 200 sq.ft., is meant for all the parties.
6. The cause of filing this suit is the notice issued by Defendant No.1 who is also residing there. The first notice was issued on 22.9.2004. He had contended that taking advantage of the absence of majority of the members of the family who were in Mumbai, the Plaintiff No.1 had taken initiative without any consultation, consent or concurrence from other male and female 15 OS.No.16908/2004 c/w OS.No.16375/2006 members of the family to partition the property. It was also mentioned that their father was not willing for the partition and that the Plaintiff No.2 as keen to effect a partition as he was jobless.
7. There was a demarcation of the property in an uneven proportion, which was opposed by K.C. Salariya. It is also vaguely suggested in the notice that Sudhir Salariya being the youngest should get a larger share. The thrust of attach is that the division of property and the allotment of shares were done by Suresh Salariya without any consolation and consent of all and all the documents had already been prepared and what remained was to take signatures to the document. When they came to Bangalore from Mumbai, they were left with no option but to sign the document in good faith. The preparation of the sketch is also not in dispute. What is sought to be contended is that the partition is uneven and disproportionate. In the oral partition itself, the property allotted to Sudhir Salariya and Subhash Salariya was fully built up. It is also 16 OS.No.16908/2004 c/w OS.No.16375/2006 alleged that Ashok Salariya whose wife and children have now started misusing the passage by often locking the gate without any valid reason is false. Their conversion to Christianity has no bearing or relevance to the facts of the case. The assertion in the notice that Smt. Rajini Salariya, widow of Satish Salariya wanted a larger area is also false and there wsa no demand made by her.
8. Another notice dtd: 8.10.2004 has been issued. An interim reply has been sent by the 1 st Plaintiff. Sri.Sudhir Salariya wanted the members of the family to sit together. The claim made in the notice that they did not consent to the division of properties, is false to the core. The partition took place after obtaining the mutual consent of all the parties. Sri. Sudhir Salariya has sent a rejoinder stating that ever since the date of partition, none of the sons are happy, which is demonstrably false. Each one of the sons are happy. The fact that the plaint is signed by all the four groups shows that the contention is false.
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OS.No.16375/2006
9. At the instance of Sudhir Salariya, Smt. Rita Salariya now married to Sri. Vijay has issued notice making unjust claims. The address of 3 rd Defendant is deliberately wrongfully furnished. It is contended in the notice that K.C. Salariya was the owner of premises bearing No.141/2 built on No.168 measuring 6000 square feet, which is totally incorrect. It bears property No.141/2 built at Site No.168 and measures 5,800 square feet. The other property referred to is No.151, Aramnagar, Andheri, Versova Road, Bombay-61. This property does not belongs to the family. The property belongs to the Society MHADA. At present Smt. Adarsh Salariya is residing in that apartment. After the death of Sri. K.C. Salariya, the Plaintiffs and Satish Salariya have intimated the concerned authorities that they have no objection to transfer the right of tenancy in the name of Adarsh Salariya somewhere during the year 1995. The contention that the property is owned by Sri. K.C. Salariya is denied. Subsequently, after the partition, new numbers have been assigned by the village 18 OS.No.16908/2004 c/w OS.No.16375/2006 Panchayat. Suresh Salariya's portion is assigned as No.91/1, Satish Salariya's portion is assigned as No.91/2, Ashok Salariya's portion is assigned as No.91/4, and Sudhir Salariya's portion is assigned as No.91/3, Subhash Salariya's portion is assigned as No.91/5. Subsequently, the City of Corporation of Bangalore has assigned different numbers to these properties as 82, 82/4, 82/2 and 82/3. The respective parties are paying the taxes and the khatha stands in their respective names.
10. Sri. K.C. Salariya during his lifetime had gifted a portion of the property bearing Old No.82, New No.92 in favour of his wife Smt. Susheela Salariya by means of a Deed of Gift, which was duly registered. As she became the absolute owner of the property, she sold the property in favour of Suresh Salariya on 4.9.1978 under the Deed of Sale and he was been in actual possession of the property. Khatha has been made in his name. Taxes are paid by him. None else except the Plaintiff has any right, title, interest or possession in or 19 OS.No.16908/2004 c/w OS.No.16375/2006 over the said property. The property which is subject matter of Gift and Sale is a portion of Khaneshumari No.82, New No.92, Nagawarapalya, Benniganahally, Dhakale, K.R.Puram Hobli, Bangalore South Taluk, measuring 55'-35'/2X50' or 1369 X 15.30 meters totally measuring 209.45 sq. meters and bounded on the East by Road, West by Private Property, North by Road and South by Private Property. It is admitted by Sudhir Salariya that the khatha are made out in individual names. It is fact that there was a oral partition confirmed by a memorandum of partition. According to the Plaintiffs, partition is valid genuine and enforceable.
11. Sri. Suresh Salariya has been carrying out minor repairs to the building to give the building a new look, since damages are caused to the building on account of rains. It is denied that Plaintiffs have not entered into any joint development agreement.
12. Each one of the parties are in possession is not disputed. Though Rita Salariya is party to the confirmation of memorandum of partition, her 20 OS.No.16908/2004 c/w OS.No.16375/2006 signatures are not found in the confirmation as she was not given any share, in view of the fact that each of the brothers had to contribute Rs.5,000/- towards her marriage expenditure. The same has been paid through Adarsh Salariya. The fact that Rita Salariya's marriage took place after the partition cannot be disputed. Each of the brothers has contributed Rs.5000/- towards the marriage of 2nd Defendant, through 3rd Defendant and the mother Smt. Susheela Salariya. As there is a threat by Defendant No.1 and 2, to interfere with the peaceful possession and enjoyment of the property of the Plaintiffs.
13. The oral partition and the confirmation of the partition had not been challenged for ever 23 years. It is too late to contend that the partition is unequal and does not bind. Having admitted that partition, it is not open to them to contend otherwise. Their contention is barred by time.
14. The cause of action arose on 22.9.2004 and 8.10.2004 within the jurisdiction of this Court. Hence, 21 OS.No.16908/2004 c/w OS.No.16375/2006 prays for decreeing the suit on several other grounds.
15. The 1st Defendant has appeared through Advocate had filed written statement admitted the allegations in Para No.2(a) of the Plaint and denying the allegations made in Para No.2(b). It is submitted that Late K.C. Salariya had no intention to divide the schedule properties during his lifetime. He had his own reservations and he was not happy with the 1 st Plaintiff remaining single without thinking of marrying and settling down in his life in a decent manner. The 1 st Plaintiff was known for his wayward way of living and in that regard both the father and mother were not happy.
16. The oral partition was thought of 1 st and 7th Plaintiff much against the wishes of father K.C. Salariya in order to knock off major and convenient share of the joint and undivided properties of the family. At that time 1st and 7th Plaintiff were almost bankrupt having no source of any income and eventually had an evil eye to grab the major lucrative corner portions of the schedule property and in that regard they had forced the father 22 OS.No.16908/2004 c/w OS.No.16375/2006 to sign the alleged partition deed much against his will. The Late father never intended to share the property in the manner which is stated in the alleged partition deed. He wanted to give equal share to all his children. It is submitted that Late K.C. Salariya was a hard working, honest and upright person who had love and high regard for all the members of the family and he had no intention whatsoever to discriminate between sons and daughters in the matter of dividing the family properties. It is a fact that the 1st and 7ht Plaintiffs were not so educated and being insure in their living, they were jealous of the academic qualifications of the 1 st Defendant, Late Satish Salariya and the sisters. In fact they were planning not to give any share to the sisters in the family properties. In fact the Late 2 nd Plaintiff was won over by the 1st & 7th Plaintiffs by offering a major portion of the property, as can be seen from the alleged partition deed. The alleged partition deed was never approved by the 1st Defendant, Late Satish Salariya and the sisters were never consulted at all. The allegations 23 OS.No.16908/2004 c/w OS.No.16375/2006 that the respective portions of properties stated in the alleged partition deed was distributed by the Late father K.C. Salariya is denied. The father was not in favour of excluding the daughters in the matter of sharing the family properties. It is denied that father K.C. Salariya had assigned the responsibility of performing the marriage of 2nd defendant to his sons. The marriage of the 2nd Defendant was celebrated by her mother from out of her savings in December 1982 after the expiry of father K.C. Salariya on 25.2.1982.
17. According to the 1st Defendant, in the alleged partition deed the Plaintiffs have claimed that the property No.151, Aram Nagar II, Bombay is the family property and the same had to be sold and divided among five sons. Now, the Plaintiffs have changed the version and say that the said property belongs to Maharashtra Government. The Plaintiffs are misleading this Court when they say that the suit in OS.No.297/2005 filed by the 2nd Defendant before the Bombay City Civil Court at Mumbai for partition was 24 OS.No.16908/2004 c/w OS.No.16375/2006 dismissed. In fact the said suit was permitted to be withdrawn to file fresh suit and in that regard copy of the order of the Court has already been filed in Court. The 2nd Defendant has filed OS.No.16375/2006 for partition against the Plaintiffs and Defendant No.1 & 3 herein.
18. In this case, the Defendant No.2 who is the Plaintiff in OS.No.16375/2006 i.e., clubbed suit was placed ex-parte.
19. The Defendant No.3 has filed written statement admitting the plaint averments. It is stated that partition took place in the year 1981 and at this venture it cannot be reopened. According to this Defendant, since the suit properties are the self- acquired properties of K.C. Salariya he has distributed the suit properties during his lifetime on on 1.1.1981 and same was recorded in writing on 17.5.1981 and a sketch showing the entitlement of each of his five sons and the said sketch was approved by Byappanahalli Village Panchayath. The Village Panchayath has 25 OS.No.16908/2004 c/w OS.No.16375/2006 assigned Nos.91/1 to 91/5. The Defendant herein submits that the said proeprties were brought within the extended Bangalore Corporation limits and new numbers 82/1 to 82/5 were assigned. She supports the version of the Plaintiff. It is stated that 1st Defendant has developed enmity towards the Plaintiffs and instigated the 2nd Defendant to issue notice on the Plaintiffs and also to file suits one after the other. Defendant No.1 and 2 also tried to interfere with the possession and enjoyment of the Plaintiffs in the suit schedule properties and also the the peaceful possession and enjoyment of the Defendant property No.151, of Aramnagar II, Andheri Versova Road, Mumbai - 61. It is stated that said property at No.151, of Aramnagar II, Andheri Versova Road, Mumbai-61 was a tenanted property allotted by MHADA (Mumbai Housing & Area Development Board) to Late K.C. Salariya and subsequently the same was transferred in the name of Smt. Susheela Salariya the mother of the Plaintiffs and Defendants. The mother of the Defendant herein since 26 OS.No.16908/2004 c/w OS.No.16375/2006 bequeathed the tenanted rights in favour of the Defendant herein, the Defendant is residing in the said premises since more than 30 years by paying monthly rents and the Defendant herein is in settled possession of the said tenanted property. The 2 nd Defendant who has filed the suit in OS.No.16375/2006 by mentioning this property as 'B' Schedule Property and later deleted the 'B' Schedule Property in the said suit stating that she has no right over the "B" Schedule Property. This Defendant is in possession and enjoyment of property bearing No.151, of Aramnagar II, Andheri Versova Road, Mumbai, since 30 years and paying monthly rents to the MHADA (Mumbai Housing & Area Development Board). This Defendant says that she has no objection for the suit being decreed and confirming the oral partition and the memorandum of confirmation dtd: 1.1.1981 and contending the same facts as stated by the Plaintiff and prays for decreeing the suit.
20. Pleadings of OS.No.16375/2006.
The 2nd Defendant in OS.No.16908/2004 i.e., Rita 27 OS.No.16908/2004 c/w OS.No.16375/2006 Vijaya Suri has filed OS.No.16375/2006 against the Plaintiffs in OS.No.16908/2004 and also against the Defendant No.2 Sudhir Salariya of OS.No.16908/2004 and Adarsh Salariya praying for declaring that the Plaintiff is entitled for 1/7th share in the schedule "A" and "B" properties and also for partition of schedule "A' and "B" properties by metes and bounds and to direct them to deliver and put her in possession of 1/7th share and for an enquiry into mesne profits and for passing other reliefs which deems fit.
21. This suit is filed later after filing of OS.No.16908/2004 and both the cases were clubbed together. Common evidence was recorded.
22. According to the Plaintiff of this case, Sri.Kahanchand Salariya S/o Late Khushalchand herein K.C. Salariya had five sons and two daughters. The Plaintiff and Defendant No.10 Adarsh Salariya are the two daughters. In this plaint also the children of K.C.Salariya as stated by the Plaintiff in OS.No.16908/2004 is defined. In this suit also the 28 OS.No.16908/2004 c/w OS.No.16375/2006 Plaintiff has stated that the suit properties were acquired by K.C. Salariya as per the registered Sale Deed as stated by the Plaintiff in OS.No.16908/2004. It is stated that the suit properties are acquired out of his self-earnings. The Property No.82 Old No.168 is shown as 'A' Schedule Property. It is stated that originally they belongs to Lahore now in Pakistan. After the partition of India and Pakistan both her parents with their children came to Bombay, India as refugees. The then Government of Bombay the present Government of Maharashtra had allotted a tenement bearing No.151 situated at Machlimar (Versova), Aramnagar Part 2, Mumbai in consideration of they being refugees for the benefit of the family. The said property is situated within the local limits of Maharashtra Housing Board, Bandra East, Mumbai. Death of the parents and date of death of parents are also stated by this Plaintiff. It is stated that suit 'A' and 'B' schedule properties are being the joint and undivided family properties of Late K.C. Salariya and Smt. Susheela Salariya. They are in joint possession 29 OS.No.16908/2004 c/w OS.No.16375/2006 of all the members of the family in which the Plaintiff and Defendants have right and share. Both the schedule properties have not been partitioned either during the lifetime of Plaintiff's parents or thereafterwards to the knowledge of the Plaintiff. It is submitted that the Plaintiff is entitled for 1/7th share in "A' and "B" schedule properties. According to the Plaintiff, the suit properties remained undivided among the members of the joint family till early 2004 when there was a family get together to resolve the issue by entering into a Joint Development Agreement in respect of schedule "A" property with one builder by name Reddy who offered a favourable proposal in terms of flats and money. As there was some misunderstanding among Plaintiff's elder brothers in relation to allotment of the builder's share the proposed talk of joint development did not materialize. The Defendant No.1 to 7 started meddling the family properties by demolishing portions of the existing building in "A" Schedule property. The Plaintiff caused legal notice dtd: 21.10.2004 through her 30 OS.No.16908/2004 c/w OS.No.16375/2006 counsel to Defendant No.1 to 6m Ashok Salariya and Defendant No.9 & 11 calling upon them to partition the joint family properties and to give her legitimate share for which a reply was sent on 5.11.2004 through the counsel denying her share over the Schedule 'A' and 'B' properties. A rejoinder notice dtd: 23.11.2004 was sent by Plaintiff counsel to the counsel of Defendants stated above clarifying certain matters since the existence of an oral partition dtd: 1.1.1981 was raised in the reply notice. In the said reply notice it had been stated that a suit for confirmation of alleged oral partition dtd:
1.1.1981 subsequently recorded in the alleged Deed of Confirmation dtd: 17.5.1981 had been filed before the City Civil Court Bangalore, against the Plaintiff and Defendants No.10 and 11 in OS.No.16908/2004 which is pending before CCH-29. The Plaintiffs therein had deliberately given the address of the Plaintiff wrongly in the said suit with a view to delay the proceedings. In view of the denial of her legitimate share in the joint family properties, she was compelled to institute a suit 31 OS.No.16908/2004 c/w OS.No.16375/2006 for declaration of her share in the joint family properties before the Bombay City Civil Court, Mumbai in S.C.No.297/2005 against the Defendants herein. In the said suit an objection was raised by defendants as to the territorial jurisdiction of the Mumbai Court to entertain the said suit. The matter was heard by the Court and at that stage the Plaintiff sought for permission to withdraw the suit with liberty to institute appropriate suit on the same cause of action. On granting the relief by the Court the suit was disposed on 18.2.2006. There was no partition of the joint family properties i.e., 'A' and 'B' schedule properties. The Plaintiff categorically denies the execution of the alleged Memorandum of Confirmation of Partition dtd:17.5.1981 and the said document is not binding on the Plaintiff. The Plaintiff had never agreed to receive marriage expenses in lieu of her share in the joint family property. The Plaintiff has acquired right, title and interest by operation of law in respect of the self-
acquired properties left behind by her parents. The 32 OS.No.16908/2004 c/w OS.No.16375/2006 court fee is paid as per section 35(2) of the Karnataka Court Fee and Suits Valuation Act. Hence, prays for decreeing the suit on several other grounds.
23. The written statement is filed by the Defendant No.1 denying that the suit properties were acquired out of self-earnings of Sri. K.C. Salariya. It is admitted that residential house bearing No.151, of Aramnagar II, Andheri Versova Road, Mumbai, i.e., 'B' Schedule Property has been allotted on rent basis by Mumbai Government when they came from Pakistan. The relationship is admitted. It is denied that the suit proprieties are joint family properties and Plaintiff has got right and share over the same. The filing of SC.No.297/2005 in City Civil Court, Mumbai by the Plaintiff is admitted. It is stated that Court at Mumbai has held that it has no jurisdiction. The Plaintiff has not deposited the costs imposed by the Court at Mumbai. It was denied that there is no partition in the joint family properties. All other contents are denied. It is the contention of this Defendant that the property bearing 33 OS.No.16908/2004 c/w OS.No.16375/2006 No.168, Nagavarapalya, Dooravaninagar, Bangalore, belonged to Late K.C. Salariya and family consisting of Defendants 1 to 5 and 9, Plaintiff and Defendants and their father Sri. K.C. Salariya. The aforesaid property bearing No.168 was acquired by Late K.C. Salariya under Sale Deeds executed by Muniyellappa and B.M. Ramaswamy and K.C. Salary was put in possession of the aforesaid property. The acquisition is made from the earning of the male members of the family. The aforesaid property was never treated as self acquired property of Late K.C. Salariya and it was treated as joint family property consisting of K.C. Salariya and his children. The property was acquired from the earnings of the members, which has been thrown into the common stock. The major contribution of the acquisition and construction of the said property was by Defendant No.1 Sri. Suresh Salariya and Late Satish Salariya. Sri.Suresh Salariya and Sri. Satish Salariya have contributed a major portion of their individual income for putting up the construction on Sy.No.141/2 bearing 34 OS.No.16908/2004 c/w OS.No.16375/2006 premises No.168, Nagavarapalya, K.R.Puram Hobli, Bangalore South. After the area got merged in the Corporation Limits, the BBMP has assigned Nos.82, 82/2, 82/3 and 82/4. There were differences amongst the members of the family, which is common in all joint families. In view of the diverse dispute amongst the members of the family and as the women folk could not carry on together Sri. K.C. Salariya, his sons and daughter Rita Salariya wanted a partition of the property. In order to resolve their disputes, they requested Sri. M.D. Kumar and Sri.Mohammed Shafiulla who are the well wishers of the parties to effect a settlement. A number of meetings were held. All the parties were heard. It was agreed that Smt. Adarsh Salariya was not entitled to any share in the property, as she was married. She also did not press for any share. She has confirmed her view in OS.No.16908/2004. Sri. KC. Salariya the father of the parties expressed that he did not want any share in the properties however he wanted a monthly allowance of 35 OS.No.16908/2004 c/w OS.No.16375/2006 Rs.100/- to be paid to him by Plaintiff and each of the Defendants. With regard to the premises bearing No.151, of Aramnagar II, Andheri Versova Road, Bombay-61, it was agreed that the said premises could be sold and each one of the Plaintiff and Defendants were entitled to an equal share. But, the Government Housing Board never gave it on ownership. Thus it cannot be sold. It was agreed that in order to perform the marriage of Rita Salariya, each one of the brothers should contribute a sum of Rs.5,000/- in all amounting to Rs.25,000/- and that should be utilized for the purpose of her marriage. Therefore, she was not given any share in the properties. She also agreed to the said proposal. She was not entitled to a share but utilised to her marriage expenses. The mode of division was discussed threadbare and thereafter the Panchayathdars decided the portions to be allotted to the Defendants. The mode of division of properties and payment of Rs.5,000/- by Defendants and Satish Salariya and Defendants was agreed. Plaintiff Rita 36 OS.No.16908/2004 c/w OS.No.16375/2006 Salariya was also present and agreed to the said suggestion. She did not want any share in view of the fact that her marriage will be performed by contributions to be made by each one of the brothers. Defendant Adarsh Salariya was also present. At the time of oral partition, the plan was also prepared. Out of premises bearing Sy.No.141/2 built on Site No.168, the Panchayathdars allotted portions of the property the parties. The parties were put in possession of the said portions. The value of the properties allotted to each one of them was approximately Rs.20,000/-. In this written statement the Defendant No.1 says all the facts stated in the plaint in OS.No.16908/2004. Hence, prays for dismissing the suit.
24. The Defendant No.2 to 5 and 9 have filed written statement denying that the suit property was acquired out of self-earnings of K.C. Salariya during the course of employment.
25. These Defendants have also taken up contentions as stated by Defendant No.1 in the written 37 OS.No.16908/2004 c/w OS.No.16375/2006 statement. It is stated by these Defendants that there were differences amongst the members of the family, which is common in all joint families. In view of the diverse dispute amongst the members of the family and as the women folk could not carry on together Sri. K.C. Salariya, his sons and daughter Rita Salariya wanted a partition of the property. In order to resolve their disputes, they requested Sri. M.D. Kumar and Sri.Mohammed Shafiulla who are the well wishers of the parties to effect a settlement. A number of meetings were held. All the parties were heard. It was agreed that Smt. Adarsh Salariya was not entitled to any share in the property and says all the facts as stated by the Defendant No.1. These Defendants have taken same contentions as per the contentions of the Defendant No.1 in the written statement. Hence, prays for dismissing the suit.
26. The Defendant No.6 and 7 have filed written statement supporting the version of Defendant No.1 and stating that they are in possession of the suit 38 OS.No.16908/2004 c/w OS.No.16375/2006 property and hence prays for dismissing the suit. It is stated by these Defendants that they are in possession of the suit property as per the property allotted to the husband of Defendant No.6 and father of Defendant No.7 and 8 i.e., Ashok Salariya. It is stated that this suit is filed at the instigation of Defendant No.6 by the Plaintiff. It is stated that 1st Defendant, 9th Defendant and Late Satish Salriya have contributed major portion of their individual income for construction of premises bearing No.168 of Nagavarapalya, K.R.Puram Hobli. Late K.C. Salariya during his lifetime had gifted portion of the property bearing No.82 measuring 13.69 X 13.50 meters totally 298.45 meters.
27. The Defendant No.11 has filed written statement stating that suit property bearing No.82 New No.168 of Nagavarapalya, K.R.Puram Hobli, was acquired by his father out of his own income and the said property is the joint family property. He has also admitted about the contentions taken by the Plaintiff in respect of 'B' schedule property. It is stated that both 39 OS.No.16908/2004 c/w OS.No.16375/2006 the parents have not left behind any Will and as such children of K.C. Salariya are entitled to equal share in the properties. There was no equitable settlement of the share of all the children and prays for partition and separate possession of this Defendant's 1/7th share in the property by decreeing the suit stating that he will pay the required court fee.
28. Reply statement is filed by the Plaintiff to the written statement of the Defendants denying all the allegations. It is stated that very fact that neither Mr. M.D. Kumar nor Mohammed Shafiulla has properly signed the alleged partition deed as witnesses shows that the alleged document is concocted one. According to this reply it is stated that Plaintiff was not at all consulted in this matter and the said document is concocted and said document cannot be acted upon as it is a tampered one. All the parties have not signed the document on all the pages. The portion said to have been allotted to the shares are uneven and inequitable. Further, the value of each share is shown as same 40 OS.No.16908/2004 c/w OS.No.16375/2006 though the portion allegedly marked in the annexed plan are uneven. To the best of the knowledge of the Plaintiff individual khathas were not made immediately after the alleged partition as there was no unanimity among the members. The khathas are said to have been effected in some members name after a long lapse of 20 years as can be seen from the pleadings in OS.No.16908/2004. The Byapanahalli Panchayath was not the authority to approve the alleged partition. The alleged Gift Deed in favour of Plaintiff's mother and subsequent sale in favour of 1 st Defendant are all fraudulent and not supported by consideration. The 1 st Defendant must have obtained the said document by exerting influence on the mother of Plaintiff to defeat the just claim of other members of the family. However, the said deeds are not binding on the Plaintiff. Hence, prays for decreeing the suit on several other grounds.
29. Basing on the above said facts, this Court has framed the following issues:
41 OS.No.16908/2004 c/w
OS.No.16375/2006 OS.No.16908/2004
1) Whether the Plaintiffs prove that a oral partition was effected in respect of the suit properties between Plaintiffs and Defendants which was later recorded through a deed of partition dated: 17.5.1981, the Plaintiffs become the absolute owners in possession of the suit properties?
2) Whether the Plaintiffs are
entitled for permanent
injunction?
3) Whether the Plaintiffs prove that Late K.C. Salariya gifted a portion of suit properties in favour of his wife?
4) What order or decree?
OS.No.16375/2006
1) Whether the Plaintiff proves that the suit properties are the joint family properties liable for partition?
42 OS.No.16908/2004 c/w
OS.No.16375/2006
2) Whether the Plaintiff is entitled for 1/7th share?
3) Whether Plaintiff is entitled for mesne profits?
4) Whether the Defendant No.6 & 7 proves that 'A' schedule properties was the self acquired properties of K.C. Salariya there was a oral partition effected on 1.1.1981 during the lifetime of K.C. Salariya which was later reduced into writing on 17.5.1981 in respect of 'A' which has become final?
5) Whether Defendant No.6 & 7 proves that K.C. Salariya during his lifetime gift a portion of properties No.92 (Old No.82) in favour of his wife through gift deed dtd:4.9.1978, who sold the same in favour of D.1 on 19.1.1986, D.1 became the absolute owner in possession of the same?
43 OS.No.16908/2004 c/w
OS.No.16375/2006
6) Whether suit is time barred?
7) Whether is valued properly and court fee paid is sufficient?
8) What order or decree?
30. To prove the case of the plaint, the Plaintiff in OS.No.16375/2006 got examined as PW.1 and got marked documents as per Ex.P.1 to Ex.P.8 and Ex.C.1 and Ex.C.2 and closed her side. The Defendant No.1 has got examined as DW.1 and another witness as DW.2 and got marked Ex.D.1 to Ex.D.108 documents.
31. Heard both sides. The written arguments are filed by the Plaintiff in OS.No.16375/2006, Plaintiff in OS.No.16908/2004 and Defendant No.1 to 5 and 9 & 6 to 8 in OS.No.16375/2006 and the contents of the same are taken into consideration.
32. My answer to the above issues are as follows:-
OS.No.16908/2004 Issue No.1 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : In the Affirmative.
44 OS.No.16908/2004 c/w
OS.No.16375/2006
OS.No.16375/2006
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affiramtive.
Issue No.4 : Partly in the Affirmative.
Issue No.5 : In the Affirmative.
Issue No.6 : In the Negative.
Issue No.7 : In the Affirmative.
Issue No.4 in OS.No.16908/2004 &
Issue No.8 in OS.No.16375/2006
: As per the final
order for the following:-
REASONS
33. Issue No.1 to 3 in OS.No.16908/2004 and Issue No.1, 2, 4 & 5 in OS.No.16375/2006:-
Since these issues are connected, they are together taken for giving reasons.
34. The Plaintiffs who have filed OS.No.16908/2004 who are also the Defendants in OS.No.16375/2006 in the Plaint have taken up the contention that the suit 'A' property was purchased by 45 OS.No.16908/2004 c/w OS.No.16375/2006 Sri. K.C. Salariya out of his self-earnings under the registered Sale Deed dtd: 21.4.1964 i.e., out of his salary savings. According to these Plaintiffs, the properties are the self-earned and absolute properties of Sri. K.C. Salariya and the said properties are adjacent to each other and the same has been kept in one single compact block. It is clearly stated that there was no other joint family property or ancestral property fetching the income of Late Sri. K.C. Salariya except his salaried income. It is stated that Sri. K.C. Salariya with an intention to distribute his absolute and self-acquired property among his children during his lifetime itself has made oral partition on 1.1.1981 accordingly distributed his self-acquired properties to his five male children namely Sri. Ashok Salariya, Sri. Subhash Salariya, Sri.Satish Salariya, Sri. Suresh Salariya and Sri. Sudhir Salariya. The said oral arrangement has been reduced into writing on 17.5.1981. But, the same Plaintiffs who are the Defendants in OS.No.16375/2006 in the suit filed by Defendant No.2 of OS.No.16908/2004 i.e., Rita 46 OS.No.16908/2004 c/w OS.No.16375/2006 Salariya in the written statement have contended that acquisition of these properties is made from the earnings of the male members of the family. The aforesaid property was never treated as a self-acquired property of Sri. K.C. Salariya and it was treated as joint family property consisting of Sri. K.C. Salariya and his children. In the written statement of Defendant No.1 Suresh Salariya it is stated that these properties were acquired from the earnings of the members, which has been thrown into common stock. It is stated that major portion of the acquisition and construction of the said property was by the Defendant No.1 Sri. Suresh Salariya and Late Satish Salariya and Sri. Suresh Salariya and Late Satish Salariya have contributed major portion of their individual income for putting up construction in Sy.No.141/2 bearing premises No.168, Nagavara Palya, K.R.Puram Hobli, Bangalore South Taluk. The Defendant No.2 to 5 and 9 who are the Defendants in OS.No.16375/2006, who were also the Plaintiffs in OS.No.16908/2004, in the written statement denied that 47 OS.No.16908/2004 c/w OS.No.16375/2006 suit property was acquired out of self-earning of K.C. Salariya during the course of employment. Defendant No.6 and 7 who have filed written statement who were also the Plaintiffs in OS.No.16908/2004, in the written statement has contended that 1st Defendant and 9th Defendant and Late Satish Salariya have contributed major portion of their individual income for construction of premises in No.168, Nagavara Palya, K.R.Puram Hobli, Bangalore.
35. Therefore, it is clear that same persons have taken different contentions as a Plaintiffs in OS.No.16908/2004 and as Defendants in OS.No.16375/2006. However, it is the contentions of the Plaintiff in OS.No.16375/2006 that the suit properties are the self-acquired property of his father Sri.K.C.Salariya. The Defendant No.1 in OS.No.16908/2004 i.e., Sudhir Salariya is also the Defendant No.11 in his written statement has contended that the suit properties are the self-acquired properties of his father Sri. K.C. Salariya. Therefore, 48 OS.No.16908/2004 c/w OS.No.16375/2006 according to him it is the joint family property.
36. Therefore, when Plaintiff in OS.No.16908/2004 has taken different versions in the plaint as a Plaintiff and in the written statement as a Defendants, the Court has to consider whether the Plaintiffs in OS.No.16908/2004 have proved that the suit proeprties are the joint family properties and the Defendant No.1 Sri. Suresh Salariya and Late Satish Salariya have contributed for acquisition and construction of the said property out of their individual income as contended by them in the written statement or not.
37. The 1st Plaintiff in OS.No.16908/2004 and the 1st Defendant in OS.No.16375/2006 i.e., Suresh Salariya was examined as DW.1 and this witness in his evidence says that the Property bearing No.82 and 141/2 were purchased by Sri. K.C. Salariya out of his own self-
earnings on 21.4.1965 and 21.4.1966 as per registered Sale Deed and those properties were purchased by Sri.K.C. Salariya out of his own salary savings and provident funds. In his evidence he says that 49 OS.No.16908/2004 c/w OS.No.16375/2006 Sri.K.C.Salariya maintained his family out of his salary savings only and there was no joint family property or ancestral property fetching the income to Late Sri. K.C. Salariya except his salaried income. Therefore, it is clear that even though the above said person and other persons i.e., Plaintiff in OS.No.16908/2004 and Defendant in OS.No.16375/2006 have taken different versions as Plaintiffs and Defendants. In the examination-in-chief DW.1 has clearly admitted that these two properties were acquired by their father Sri.K.C. Salariya.
38. It is the contention of the DW.1 that Sri. K.C. Salariya with an intention to distribute his absolute and self-acquired property among his children during his lifetime itself has made oral partition on 1.1.1981 accordingly distributed his self-acquired properties to his five male children namely Sri. Ashok Salariya, Sri.Subhash Salariya, Sri. Satish Salariya, Sri. Suresh Salariya and Sri. Sudhir Salariya. He says that oral event of oral arrangement was been reduced into writing on 50 OS.No.16908/2004 c/w OS.No.16375/2006 17.5.1981. In pursuance of the said distribution separate numbers were assigned in respect of the properties distributed to each of his sons namely 91/1, 91/2, 91/3, 91/4 and 91/5, subsequently the said properties merged with the BBMP and renumbered as 82/1 to 82/5. He has stated that arrangement has been made during the lifetime of Sri. K.C. Salariya as per his wish to distribute his self acquired property to his five sons. He says that since 17.5.1981 the five sons were in possession and enjoyment of their respective portions of properties allotted by their late father Sri. K.C. Salariya and the five sons are continuously paying separate taxes and the BBMP has registered khatha in their names. It is stated that Late Sri. K.C. Salariya had assigned the responsibility of performing the marriage of his younger daughter Rita Salariya who is Plaintiff in OS.No.16375/2006 to his sons, accordingly his sons the Plaintiffs have performed their sister's marriage. According to the Plaintiffs, Sri.K.C. Salariya died on 25.2.1982. The two sons of Late Sri. K.C. Salariya 51 OS.No.16908/2004 c/w OS.No.16375/2006 namely Sri. Sathish Salariya and Sri. Ashok Salariya died on 14.3.2000 and 19.11.2005 respectively.
39. Smt. Rita Salariya who is the Plaintiff in OS.No.16375/2006 denied the execution of the said registered oral partition dtd: 1.1.1981 and which was reduced into writing on 17.5.1981 as contended by the DW.1. According to Rita Salariya who was examined as PW.1, she has got right over the properties since the said properties are joint family properties after the death of her father.
40. The Defendant No.11 in OS.No.16375/2006 and Defendant No.1 in OS.No.16908/2004 i.e., Sudhir Salariya in his written statement has contended that there was no equitable settlement of share to all the children and admitted that the said properties are purchased from the self-income of his father. This Defendant has denied the execution of the oral partition and same is also denied that the same was reduced into writing 17.5.1981. Therefore, as per the above said discussion it is clear that as per the evidence of both 52 OS.No.16908/2004 c/w OS.No.16375/2006 parties it is clear that the suit properties are self- acquired properties of Sri. K.C. Salariya.
41. As per the argument of the Advocate for Defendant No.1, 5 and 9 in OS.No.16375/2006 even if it is a self-acquired property it is open to the father to make a gift or partition of his properties as he himself chooses. In support of his contention he has relied Judgment of Hon'ble Supreme Court of India dtd:14.10.1953 between C.N. Arunachala Mudaliar and Others V/s C.A. Muruganatha Mudaliar and Others. In the said Judgment the Hon'ble Supreme Court has held at Para 16 as follows:
"A Mitakshara father can make a partition of both the ancestral and self-acquired property in his hands any time he likes even without the concurrence of his sons; but if he chooses to make an partition, he has got to ake it 53 OS.No.16908/2004 c/w OS.No.16375/2006 in accordance with the directions laid down in the law."
42. The Advocate for Defendant No.1 to 5 and 9
has also relied another Judgment of Hon'ble High Court of Madras reported in AIR 1967 MADRAS 227 between S. Parthasarathi V/s Commissioner of Income Tax Madras. In the said Judgment the Hon'ble High Court of Madras has held as follows:
"Hindu Law - Joint Family
- Mitakshara School -
Allotment by father of his self- acquired property to his sons is ancestral property in the hands of sons is ancestral or not depends upon intention of father as evidenced from deed of allotment."
43. In the said Judgment, the Hon'ble High Court of Madras has held that as it is open to the father to make 54 OS.No.16908/2004 c/w OS.No.16375/2006 a gift or partition of his properties as he himself chooses, there is strictly speaking, no presumption that he intended either the one or the other. Therefore, it is the contention of this Defendant that even if the properties are considered as the self-acquired properties of Sri. K.C. Salariya he has got right to give the properties in the partition or through gift, i.e., in either way. But, in the above said Judgment of Hon'ble Supreme Court relied by Advocate for Defendant No.1 to 5 and 9 the Hon'ble Supreme Court has clearly held that the father can choose to make a partition, but he has to make it in accordance with the directions laid down in the law.
44. As per the Judgment of Hon'ble Supreme Court in many cases the self-acquired property can be thrown into hotchpot by the father. In many Judgments it is clearly held that self-acquired property may become joint family property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon him. Therefore, as 55 OS.No.16908/2004 c/w OS.No.16375/2006 argued by the Advocate for Defendant No.1 to 5 and 9 the father has got right to throw his self-acquired property as a joint family property for considering the same as joint family property. He can also choose to distribute these properties through partition or by way of gift. But, as per the above said Judgment itself it is clear that if he chooses to make a partition he has got to make it in accordance with the directions laid down in the law. Therefore, it is clear that the court has to consider whether the properties which were thrown to joint stock by father have to been partitioned as per law or not and also court has to consider as to whether the Plaintiffs have proved the execution of the said oral partition by Sri. K.C. Salariya and the same was later reduced into writing on 17.5.1981 as per Ex.D.94 or not.
45. As argued by the Advocate for Plaintiff in OS.No.16375/2006. In the said document i.e., the Partition Deed relied by the Defendant at Ex.D.94, even though name of Rita Salariya i.e., the Plaintiff in OS.No.16375/2006 is mentioned her signatures have 56 OS.No.16908/2004 c/w OS.No.16375/2006 not been obtained. As per the above said Judgment of Hon'ble Supreme Court it is clear that even if the self- acquired is thrown into joint stock for partition, the partition must be in accordance with law only. Naturally, when this Rita Salariya is shown as a party in the Partition Deed, her signatures ought to have been obtained as per law. Law mandates signature of all the parties to the Memorandum Partition Deed. It is contended that original Partition Deed has taken place on 1.1.1981 and same was reduced into writing on 17.5.1981 as per Ex.D.94. However, when it was reduced into writing and signatures of all the other parties of the Deed have been obtained on the said document, they ought to have obtain signature of Rita Salariya also. Rita Salariya has shown as 7 th party in the said Memorandum of Partition Deed, but her signature is not there on Ex.D.94. DW.1 deposes that at the division on 1.1.1981 a sketch was prepared. But, in the said sketch is not produced before the Court. On the other hand, sketch prepared along with Memorandum of 57 OS.No.16908/2004 c/w OS.No.16375/2006 Partition Deed dtd: 17.5.1981 is produced before the Court.
46. When Defendant No.1 to 5 and 9 i.e., Plaintiffs in OS.No.16908/2004 relying on oral partition and Ex.D.94 i.e., Memorandum of Partition, since Ex.D.94 evidences the oral partition dtd: 1.1.1981 which is relevant document and if it is proved it proves the relevant fact in issue i.e., oral partition dtd: 1.1.1981. Therefore, the Court has to consider whether the Plaintiff has proved the oral partition and also the document evidencing the oral partition i.e., Ex.D.94 or not. In order to prove oral partition the Defendants in OS.No.16375/2006 examined Suresh Salariya as DW.1. In order to prove oral partition relied by the DW.1 they have also produced Ex.D.94 dtd: 17.5.1981 i.e., unregistered Memorandum of Partition Deed. Therefore, the DW.1 who was examined on behalf of other Defendants has to prove both the oral Partition dtd:
1.1.1981 and the Memorandum of Partition Deed dtd:
17.5.1981 which is produced at Ex.D.94, since in order 58 OS.No.16908/2004 c/w OS.No.16375/2006 to prove oral partition the proof of Ex.D.94 is necessary, since Ex.D.94 is the supporting document to prove the disputed fact i.e., oral partition dtd: 1.1.1981.
47. PW.1 in the cross-examination says that during the lifetime of his father he has executed Gift Deed in favour of his mother. The Defendant No.6 and 7 who have filed written statement, in the written statement they have contended that Sri. K.C. Salariya gifted a portion of property bearing Old No.82, New No.92 measuring 35'/2X50' or 1369 X 15.30 meters totally measuring 298.45 meters in favour of his wife Smt.Susheela Salariya by way of registered Gift Deed dtd: 4.9.1978. It is also contention of Defendant No.6 and 7 that Smt. Susheela Salariya sold the said property to Defendant No.1 i.e., DW.1 on 19.1.985. The said Sale Deed is produced by the DW.1 at Ex.D.1. Therefore, during the cross-examination, DW.1 admits that the sketch annexed to Ex.D.94 was prepared on 1.1.1981 and in the said sketch Narayana Rao is shown as witness. According to DW.1, oral partition was done in 59 OS.No.16908/2004 c/w OS.No.16375/2006 the presence of the witnesses by name Sri. M.D. Kumar and Sri. Mohammed Shafiulla. But, the sketch annexed to the said Ex.D.94 is containing the signatures of Sri.Mohammed Shafiulla and Sri. M.S Narayana Rao. However, Memorandum of Partition Deed Ex.D.94 is not having the signature of said Narayana Rao. It is the contention of DW.1 that the said Memorandum of Partition Deed is executed in counter parts and the said counter parts are also produced before the Court. In one of the said counter part the signature of the one of witness by name Sri. Mohammed Shafiulla is not there.
48. When the Defendant No.6 and 7 are contending that the portion of the property in Sy.No.82 was given as a gift by Sri. K.C. Salariya to his wife and later on the same was sold by his wife to Defendant No.1 Suresh Salariya as per Ex.D.1, in the sketch produced before the Court which is annexed to Ex.D.94 in respect of the entire suit 'A' schedule property i.e., Old No.82, Present No.168, the same ought to have been mentioned or it should have been shown in the 60 OS.No.16908/2004 c/w OS.No.16375/2006 boundaries of the annexed sketch since the said Gift Deed was executed prior to this Memorandum of Partition i.e., in the year 1978 and the oral partition took place in the year 1981. But the same will not find any place in the Memorandum of Partition Deed or in the sketch. Even in boundaries of Ex.D.1 i.e., the Sale Deed executed by the mother of DW.1 in favour of DW.1 regarding portion of the suit property i.e., Old No.82 there is no mention regarding the oral partition or the properties allotted to these Defendants as per oral partition and even in the boundaries the same is not shown. On the other hand, in the boundaries of the sale deed Ex.D.1 the properties purchased by DW.1 from his mother are mentioned as East by Road, West by Private Property, North by Road South by Private Property. Even in Ex.D.94 execution of Gift Deed by Sri. K.C. Salariya in respect of the portion of the property in favour of his wife is not mentioned and it is not mentioned that the remaining properties are orally partitioned and the same was reduced into writing as per Ex.D.94. If really 61 OS.No.16908/2004 c/w OS.No.16375/2006 Ex.D.1 came into existence prior to oral partition said to have been taken place on 1.1.1981, the execution of Gift Deed in respect of portion of the suit property ought to have been mentioned in Ex.D.94.
49. As per the above said Judgment of Hon'ble Supreme Court relied by Advocate for Defendant No.1 to 5 & 9 between C.N. Arunachala Mudaliar V/s C.A. Muruganatha Mudaliar and Ors., it is clear that even if any self-acquired property is thrown to the joint stock for partition, partition has to be done in accordance with law only. Therefore, when there is a oral partition and the same was reduced into writing as per Ex.D.94, Ex.D.94 should contain the signatures of all the parties to the Oral Partition. But, even though name of Rita Salariya is mentioned in the Partition Deed, her signature is not obtained. However, as I have already stated above, in one of the counter part of the Ex.D.94 the signature of one of the witness by name Sri.Mohammed Shafiulla is not there. It is argued by the Advocate for Defendant No.1 to 5 and 9 other 62 OS.No.16908/2004 c/w OS.No.16375/2006 Defendants that oral partition was acted upon and they have produced Ex.D.8, Ex.D.22, Ex.D.35 and Ex.D.52 and other tax paid receipts to support their version. It is also the contention of the Advocate for Defendants No.6 to 8 that the said document Ex.D.94 is more than 30 years old document i.e., of the year 1981, therefore Section 90 of Evidence Act applies and there is a presumption which is available for the Defendants.
50. In support of this version Defendant No.6 to 8 Advocate has also relied Judgment of Hon'ble High Court of Calcutta reported in AIR 1989 CALCUTTA 202 between Probhat Chandra Kanrar and Others V/s Smt.Rani Bala Kanrar and Other, in the said Judgment at Part (A) it is held as follows:
(A) Evidence Act (1 of 1872), S.68, S.90 - Two provisions do not militate against each other - Right of Court to presume under S.90 is not controlled or curtaied 63 OS.No.16908/2004 c/w OS.No.16375/2006 by S.68.
Where the disputed 30 years old document was acted upon all throughout and presumably within the knowledge of the plaintiff, then the statement of a witness that the signatures purporting to be of the deceased executing was not of him was not sufficient to throw overboard an ancient document and the subsequent event on the basis of thath document as it was a fit case where the presumption under S.90 should be made, notwithstanding S.68 of the Act.
(B) Evidence Act (1 of 64 OS.No.16908/2004 c/w OS.No.16375/2006 1872), S.68, S.90 - Ancient document - Presumption of genuineness of - Discrepancy between English and Bengali dates therein - Document already acted upon - It cannot be invalidated on the ground of this discrepancy.
51. The Advocate for Defendant No.6 to 8 has also argued that as per Section 35 of Evidence Act the document i.e., Ex.D.8, Ex.D.22, Ex.D.35 and Ex.D.52 are the public records and relevancy of the entry in public records made in official duty and therefore it has to be relied and there is no rebuttal evidence to rebut the entry of those documents.
52. The Advocate for Defendant No.6 to 8 has relied Judgment of Hon'ble High Court of Calcutta reported in AIR 1982 CALCUTTA 294 between Dukhiram Dey V/s Mrityunjoy Prosad Daw and Other, in the said Judgment at Part (C) it is held as follows: 65 OS.No.16908/2004 c/w
OS.No.16375/2006 (C) Evidence Act (1 of 1872), S.35, S.74 - Entries in revenue record - Correction of Revenue Officer not being a Court cannot exercise jurisdiction under S.151 C.P.C.
for correction of any previous entry.
(E) Evidence Act (1 of 1872), S.35, S.74 - Certified copies of Assessment Register of Municipality and tax receipts are relevant.
53. The Advocate for Defendant No.6 to 8 has also relied Judgment of Privy Council (From Calcutta) reported in AIR 1917 Privy Council between (Rai Bhaiya) Dirgaj Deo Bahadur V/s Beni Mahto and Others, in the said Judgment at Part (B) it is held as follows:
(B) Evidence At, S.35 -
Official register - Part in
66 OS.No.16908/2004 c/w
OS.No.16375/2006
excess of official duty may not
be admissible. In the case of
official documents if it could
be shown that any particular
part was in excess of the
official duty by reason of
which it came into existence,
that part might not be
admissible.
54. The Advocate for Defendant No.6 to 8 has also relied Judgment of Hon'ble Supreme Court reported in AIR 1995 SC 1728 between Digambar Adhar Patil V/s Devram Girdhar Patil (died) and another, in the said Judgment at Par (B) it is held as follows:
(B) Evidence Act (1 of 1872), S.35 - Factum of partition between two brothers - Proof - Entries in Records of Rights maintained in official course of business -67 OS.No.16908/2004 c/w
OS.No.16375/2006 Is relevant piece of evidence.
55. The Advocate for Defendant No.6 to 8 has also relied Judgment of Hon'ble High Court of Karnataka in Regular First Appeal No.1024/2004 between G.M. Mahendra V/s G.M. Mohan and Another, in the said Judgment the Hon'ble High Court held that :
The suit of the Plaintiff is not maintainable as suit for partial partition cannot be maintained without seeking leave of the court as contemplated under the provisions of Order II Rule 2 CPC.
56. But, in this case, the Plaintiff has not sought for any partial partition. On the other hand, the Plaintiff has sought for partition of all the properties which was owned by his father K.C. Salariya and another property i.e., 'B' Schedule property was deleted on the ground that it belongs to Maharashtra Government. Therefore, 68 OS.No.16908/2004 c/w OS.No.16375/2006 the principles laid down in this judgment is not applicable to the case on hand.
57. The Advocate for Defendant No.6 to 8 has also relied Judgment of Hon'ble High Court of Patna reported in AIR 1971 PATNA 215 between Arjun Mahto and others V/s Monda Mahatain and other.
58. He has also relied another Judgment of Hon'ble High Court of Karnataka reported in ILR 2008 KAR 2159 between Veerappa and Others V/s Smt. Halavva and Others. In the said Judgment the Hon'ble High Court has held that the Palupatti it is a record of partition that cannot be considered as a Partition Deed. Therefore, requirement of registration does not arise.
59. The Advocate for Defendant No.6 to 8 has also relied Judgment of Hon'ble Supreme Court reported in (1996) 6 SCC 373 between Sk. Sattar Sk. Mohd. Choudhari V/s Gundappa Amabadas Bukate, in the said Judgment at Par (B) it is held as follows: 69 OS.No.16908/2004 c/w
OS.No.16375/2006 (B) Transfer of Property Act, 1882 - Ss.5 & 2(d) - Transfer 0 Partition of joint family property by family arrangement - Not a transfer within the meaning of S.5 -
Family arrangement
presupposes existence of
antecedent title in the parties
and it only defines their
separate titles - However,
partition effected by a
partition decree in a suit is a
transfer under S.2(d) - No
decision rendered on this
anomalous situation -
Question left open - Hindu
Law - Partition - Family
arrangement.
70 OS.No.16908/2004 c/w
OS.No.16375/2006
In the said Judgment Hon'ble Supreme Court has discussed about the transfer of property in a family arrangement.
60. The Advocate for Defendant No.6 to 8 has also relied Judgment of Hon'ble Supreme Court reported in AIR 1988 SC 881 between Roshan Singh and others V/s Zile Singh and others, in the said Judgment the Hon'ble Supreme Court held as follows:
Registration Act (16 of 1908), Ss.17(1)(b) and 49 -
Transfer of Property Act (4 of 1882), S.5 - Family arrangement and partition -
Distinction - Partition of ancestral properties -
Subsequent memorandum of partition embodying factum of partition - Held, memorandum was only family arrangement and its registration was not 71 OS.No.16908/2004 c/w OS.No.16375/2006 necessary.
61. The Advocate for Defendant No.6 to 8 has relied Judgment of Hon'ble High Court of Karnataka between Venkataswamy and Others V/s Smt. Annemma in Writ Petition No.353-355/2015 dtd: 22.42015, in the said Judgment the Hon'ble High Court of Karnataka held that oral partition does not require registration.
62. Even in the Judgment relied by Advocate for Defendant No.6 to 8 i.e., Judgment reported in AIR 1976 SC 807 between Kale and others V/s Deputy Director of Consolidation and others, the Hon'ble Supreme Court held that if the terms of family arrangement reduced into writing registration is necessary. It is stated that a distinction should be made between documents containing the terms and the recitals of the family arrangements made under the document and a mere memorandum prepared after the family arrangements had already been made either for the purpose of record or for the confirmation of the Court for making necessary mutation, in such a case the memorandum 72 OS.No.16908/2004 c/w OS.No.16375/2006 itself does not create or extinguish any rights in immovable properties. Therefore, not compulsorily registrable.
63. Here as held by Hon'ble Supreme Court and Hon'ble High Court in many cases as above, the registration of Memorandum of Partition is not necessary. However, it has to be proved as per Evidence Act only.
64. However, as per the argument of the Advocate for Plaintiff there are no documents produced to show that they have applied for change of khatha to support their version. Only one year khatha is produced before the court and not subsequent khathas. It is also argued by the Advocate for Plaintiff that Section 35 applies only if entire book is produced and not for its extract. In Ex.D.8 it is mentioned that as per Memorandum of Partition Deed dtd: 17.5.1981 for the property measuring 1400 sq.ft., the name of Suresh Salariya is mentioned. The said document bears date as 15.5.1989. It is the contention of the Defendant No.1 73 OS.No.16908/2004 c/w OS.No.16375/2006 Suresh Salariya that he has purchased a portion of the property in Sy.No.82 from his mother and as per the partition a portion of the property was allotted to him. But, as I have already stated above, entire Suit 'A' Schedule Property was partitioned as per oral partition according to these Defendants. These Defendants in OS.No.16908/2004 as Plaintiffs have contended that the property bearing Khaneshumari No.82 measuring 50 X 100 feet and another property No.141 measuring 1200 sq.ft., were purchased by his father Sri. K.C. Salariya as per registered Sale Deed dtd: 21.4.164 and 21.4.1966. It is also stated that the said properties are adjacent to each other and the same has been kept in one single compact block. In the Plaint itself at Para No.2(c) they have contended that in pursuance of the said distribution, separate numbers were assigned in respect of the properties distributed to each of his sons namely 91/1, 91/2, 91/3, 91/4 and 91/5, subsequently the said properties merged with the BBMP and renumbered as 82/1 to 82/5. That means, according to these 74 OS.No.16908/2004 c/w OS.No.16375/2006 Defendants, after the partition separate numbers i.e., 91/1, 91/2, 91/3, 91/4 and 91/5 and renumbered as 82/1 to 82/5. He has also produced Ex.D.9 i.e., tax paid receipt in respect of Property No.91/1, he has produced Ex.D.10 i.e., tax fixation letter i.e., notice under Section 143 of Karnataka Municipal Act for fixing the tax of the property of Suresh Salariya stating that from 1.1.1995 to 2003 tax was not fixed for the property of Suresh Salariya and tax was collected from 1.10.1995 to 2003 by the Revenue Officer, Bangalore Mahanagara Palike. Except one tax paid receipt for the year 14.8.1989 as per Ex.D.9 till 1995 no tax paid receipts are produced. On the other hand, as per Ex.D.10 all the taxes for the previous years from 1.10.1995 to 31.3.2003 were collected together by the Revenue Officer by issuing notice. The Khatha Certificate is produced at Ex.D.13 which is in the name of DW.1 and khatha extract dtd:20.12.2014 which is in the name of DW.1 produced at Ex.D.14 and other tax paid receipts Ex.D.15 and Ex.D.16 were also produced. DW.1 has also produced 75 OS.No.16908/2004 c/w OS.No.16375/2006 Ex.D.22 which is tax assessment form for the year 1991-92 in respect of property bearing No.91/2 which is in favour of Satish Salariya and tax paid receipts for the year 1982 at Ex.D.23. Tax determination notice as per Section 143 of Karnataka Municipal Act for determining the tax from 1.10.1995 to 31.3.2003 in respect of property of Satish Salariya at Ex.D.21 and tax paid receipts at ExD.25 and khatha certificate dtd: 9.7.2012 at Ex.D.27 and khata extract in respect of the property at Ex.D.28 and tax paid receipts for the subsequent years at Ex.D.29 to Ex.D.33 were also produced.
65. Ex.D.35 is produced in respect of the property bearing No.91/5 for the year 1991-92 which is in the name of Subhash Salariya. The tax paid receipt for the year 1982 produced at Ex.D.36 and notice issued for payment of tax from 1.10.1995 to 31.3.2003 in respect of this property at Ex.D.37 and tax paid receipts at Ex.D.38 & Ex.D.39 and khatha certificate dtd: 9.7.2012 at Ex.D.40 and khatha extract at Ex.D.41 and tax paid receipt in respect of that property at Ex.D.42 and 76 OS.No.16908/2004 c/w OS.No.16375/2006 subsequent tax paid receipts were also produced.
66. Ex.D.52 is the tax assessment form in respect of property bearing No.92 which is in the name of Suresh Salariya for the property purchased from his mother is also produced, but it does not bear the date. He also produced the tax notice issued as per Section 143 of Municipal Act at Ex.D.53. He has also produced tax paid receipts at Ex.D.54 & 55 and khatha extract in respect of the same dtd: 9.7.2012 at Ex.D.67.
67. Ex.D.69 tax assessment form in respect of property bearing No.92 in favour of Susheela Salariya i.e., the mother of DW.1 in order to show that the said property was given to the mother of the DW.1 by the father of the DW.1 is also produced and tax paid receipt at Ex.D.72 are all mentioned and later on the khatha certificate in respect of this property is produced at Ex.D.74 and khatha extract dtd: 20.11.2015 is produced at Ex.D.75.
68. Ex.D.76 tax assessment form which is of the year 1981-82 in respect of property bearing No.91/4 77 OS.No.16908/2004 c/w OS.No.16375/2006 which is in the name of Ashok Salariya and subsequent tax paid receipts dtd: 8.7.1982 produced at Ex.D.77, notice issued by Bangalore Municipal Corporation as per Section 143 demanding tax from 1.10.1995 to 31.3.2003 produced at Ex.D.78 and tax paid receipts at Ex.D.79. Khatha extract in respect of that property is produced at Ex.D.80 and Ex.D.81, subsequent tax paid receipts are also produced at Ex.D.82 to Ex.D.86. It is the argument of the Advocate for Plaintiff Rita Salariya that signatures on Ex.D.94 is not proved and it is not tallying with the other signatures of Sri. K.C. Salariya produced by the Defendants. The Defendants have produced documents at Ex.D.106 to Ex.D.108 in order to prove that the father of the Plaintiff was putting signature as K.C. Salariya also. When the Plaintiff OS.No.16375/2006 denies the execution of Ex.D.94 by Sri. K.C. Salariya, it is for the Defendants themselves to prove Ex.D.94 which is the document on which they say that oral partition took place on 1.1.1981. As I have stated above the oral partition dtd: 1.1.1981 and 78 OS.No.16908/2004 c/w OS.No.16375/2006 subsequent Memorandum of Partition Deed dtd:
17.5.1981 which is produced at Ex.D.94 both have to be proved in order to hold that there was an oral partition.
But, when there is a duty bound on the DW.1 to prove the oral partition, he ought to have referred the documents for Handwriting Expert. But, it is argued by Advocate for Defendant No.6 to 8 that it is a 30 years old document and there is a presumption in favour of the said document as per Section 90 of Evidence Act. But, the said document is dtd: 17.5.1981 and at the time of filing of the suit i.e., in the year 2004 it was not a 30 years old document as argued by the Advocate for Defendant No.6 to 8. At the time of filing of the suit it was only 23 year old document, therefore this presumption under Section 90 of Evidence Act will not applicable to this document Ex.D.94.
69. However, in Ex.D.94 in Page-3 it is mentioned that:
'this Rita Salariya was also not given a share in these 79 OS.No.16908/2004 c/w OS.No.16375/2006 properties in as such it was agreed to by the parties that each of the parties 2 to 6 should pay Rs.5000/- i.e., in all Rs.25,000/- towards her marriage expenses at the time of marriage.'
70. In Page-5 it is mentioned that:
'Each one of the parties 2 to 6 have agreed to pay at the partition as sum of Rs.5000/-
to the party No.7 Rita
Salariya'
71. In Page-6 it is mentioned in the handwritten that:
'Rs.5000/- be paid to Rita's account at the time of sale deed in front of Sub-Registrar and receipt will be handed 80 OS.No.16908/2004 c/w OS.No.16375/2006 over to Sri.K.C. Salariya .......... for Rita's marriage.'
72. Therefore, it is clear that as rightly argued by the Advocate for Rita Salariya there are different version in respect of giving Rs.5,000/- each by the parties in Ex.D.94 as above. Even though name of Rita Salariya is shown as 7th party in Ex.D.94, her signature is not obtained, in order to confirm the oral partition and in order to confirm that she has agreed to receive Rs.5,000/- as per oral partition. In Ex.D.94 the boundaries or extent of portions allotted to the parties are not mentioned. Therefore, I feel that Defendant No.1 to 5 and 9 and 6 to 8 of OS.No.16908/2004 have failed to prove the oral partition and subsequent Memorandum of Partition as per Ex.D.94 in accordance with law. It is the argument of the Advocate for DW.1 i.e., Defendant No.1 to 5, 9 and 6 to 8 that as per Ex.D.8 to Ex.D.52. The entries in the revenue records and tax paid records the oral partition is already acted upon. 81 OS.No.16908/2004 c/w
OS.No.16375/2006 Therefore, same has to be taken into consideration. But, as I have already discussed above, the DW.1 has produced Ex.D.9 tax paid receipt in respect of property bearing No.91/1 dtd: 14.8.1989. All the documents produced by the DW.1 as discussed above cannot be considered as khathas were changed in the name of the parties as per oral partition only.
73. Even if we consider the version of these Defendants that there was oral partition and Sri. K.C. Salariya has given the property on oral partition to his sons, as per Hon'ble Supreme Court Judgment he has got right to partition his self-acquired property as per his will, by throwing his self-acquired property for joint stock, he has to do the oral Partition and execute Memorandum of Partition Deed as per law only. But, in this case, as per the above said discussion, the DW.1 has failed to prove the oral partition and execution of Ex.D.94 even though he has examined DW.2 one of the witness to Ex.D.94. In view of above said discussion it is clear that Ex.D.94 is a suspicious document and cannot 82 OS.No.16908/2004 c/w OS.No.16375/2006 be relied to hold that there was an oral partition.
74. Therefore, when it is stated in Memorandum of Partition Deed at Ex.D.94 that in the oral partition Rita Salariya has agreed to receive Rs.5,000/- from each parties towards her marriage and her name is also shown, nothing prevented the parties to obtain her signature on Ex.D.94.
75. The Advocate for Plaintiff has relied on the following Judgments:
1) AIR 2003 SC 3800 between D.S. Lakshmaiah and Another V/s L. Balasubramanyam and another.
2) AIR 1956 SC 593 between Nagubai Ammal and others V/s B. Shama Rao and others.
3) (2003) 8 SCC 745 between Narbada Devi Gupta V/s Birendra Kumar Jaiswal and Another.
76. In this case, as admitted by DW.1 in the cross- examination, Sri. K.C. Salariya was aware that the documents have to be registered. DW.1 during the cross-examination at Page No.35 admits that his father 83 OS.No.16908/2004 c/w OS.No.16375/2006 knew that transfer in respect of the immovable property by settlement deed, gift deed and division had to be done by registered documents. The father of DW.1 has also executed gift deed in favour of his wife in respect of the portion of the suit property, but still having the knowledge that any document have to executed through registration only he has not executed registered document in respect of the partition also creates doubt regarding execution of Ex.D.94 by the father of DW.1.
77. DW.1 was also examined DW.2 in order to prove the oral partition and the Memorandum of Partition Ex.D.94. However, in view of the above said discussion the Plaintiff is not entitled for the relief. Even if the court comes to the conclusion that the oral partition is proved by the DW.1, in view of non obtaining signature of Rita Salariya at Ex.D.94 and in view of the above said discrepancies mentioned above the said deed cannot be said to be binding on the Plaintiff Rita Salariya. However as per the above said discussion, there are so many discrepancies in the said document 84 OS.No.16908/2004 c/w OS.No.16375/2006 and DW.1 has not sent the document Ex.D.94 for comparing the signature of his father with admitted signatures to Handwriting Expert to prove Ex.D.94 as per law. In view of the above said discussions the Defendants have failed to prove the oral partition Ex.D.94. Therefore, the Plaintiff Rita Salariya is entitled for the relief of partition.
78. Therefore, this Court is of the opinion that the said oral Partition or Memorandum of Partition Deed is not binding on Rita Salariya.
79. Therefore, when it is not binding on the Rita Salariya and when the properties are the self-acquired properties of her father, after the death of father and mother, it will become joint family properties of the Plaintiffs and Defendants and therefore Plaintiff in OS.No.16375/2006 is entitled for 1/7th share in the suit properties.
80. As per Ex.D.1 produced before this Court it is clear that Sri. K.C. Salariya during his lifetime gifted a portion of property No.92 Old No.82 in favour of his wife 85 OS.No.16908/2004 c/w OS.No.16375/2006 through Gift Deed dtd: 4.9.1978 and who sold the same in favour of the Defendant No.1 on 19.1.1986 and Defendant No.1 has become absolute owner of the suit property.
81. However, I feel that Plaintiffs are not entilted for permanent injunction as sought by the Plaintiffs against Rita Salariya who will become co-owner of the suit property. Hence, in view of the same, I answer Issue No.1 in the OS.No.16908/2004 in the Negative, Issue No.2 in the Negative, Issue No.3 in the Affirmative. In view of answering as above, I answer Issue No.1 in OS.No.16375/2006 in the Affirmative, Issue No.2 in the Affirmative, Issue No.4 partly in the Affirmative and partly in the negative stating that the Defendant No.6 and 7 have proved that the suit properties are the self- acquired properties of Sri. K.C. Salariya, however Defendant No.6 and 7 failed to prove that there was oral partition on 1.1.1981 and the same was reduced into writing on 17.5.1981 which has become final. Hence, I answer Issue No.5 in OS.No.16375/2006 in the 86 OS.No.16908/2004 c/w OS.No.16375/2006 Affirmative.
82. Issue No.7 in OS.No.16375/2006:- The Plaintiffs in OS.No.16375/2006 have paid the court fee as per Section 35(2) of Court Fee and Suits Valuation Act stating that she is in joint possession of the suit property. As per the above discussion, the Court fee paid as per Section 35(2) of the Court Fee and Suits Valuation Act by the Plaintiff is proper. Hence, I answer Issue No.7 in the Affirmative.
83. The Plaintiffs in OS.No.16908/2004 who have sought declaration have paid court fee as per Section 24(d) and 26(c) of Court Fee and Suits Valuation Act, since the Plaintiffs have sought for declaration and injunction and the court fee paid is proper. Hence, the Plaintiffs in both the cases have valued the prayer properly and paid sufficient court fee. Hence, I answer Issue No.7 in the Affirmative.
84. Issue No.3 in OS.No.16375/2006:- The Plaintiff is also entitled for mesne profits from the date of suit till the date of delivery of possession and the 87 OS.No.16908/2004 c/w OS.No.16375/2006 same has to be calculated by holding separate enquiry in Final Decree Proceedings, since Defendants are enjoying the suit property without giving any share. Hence, I answer Issue No.3 in the Affirmative.
85. Issue No.6 in OS.No.16375/2006:- Even though it is contended by the DW.1 i.e., Defendants in OS.No.16375/2006 that the suit is time barred, when there is no evidence before the Court to show that Plaintiff was aware of oral partition between the Defendants and when there is no signature of the Plaintiff on Ex.D.94 Memorandum of Partition it cannot be said that the suit is barred by time. Hence, I answer Issue No.6 in the Negative.
86. No relief granted in respect of 'B' Schedule Property, since the same was deleted as per order dtd:28.7.2010.
87. In view of the above said discussion, I feel that Plaintiffs in OS.No.16908/2004 are not entitled for the reliefs sought for. However, the Plaintiff in OS.No.16375/2006 is entitled for 1/7th share in suit 'A' 88 OS.No.16908/2004 c/w OS.No.16375/2006 schedule property and for partition of the same by metes and bounds.
88. Issue No.4 in OS.No.16908/2004 and Issue No.8 in OS.No.16375/2006:- In view of answering issues in both the cases as above, I pass the following :-
ORDER The suit in OS.No.16908/2004 is dismissed.
However the suit of the Plaintiff in OS.No.16375/2006 is decreed.
It is declared that Plaintiff is entitled for 1/7th share in the 'A' Schedule Property and entitled for separate possession by partitioning her share by metes and bounds from the Defendants and Defendants are directed to deliver her 1/7th share by partitioning the 'A' Schedule Property by metes and bounds and mesnen profits from the date of suit till the date of delivery of possession.89 OS.No.16908/2004 c/w
OS.No.16375/2006 Separate enquiry has to be held in FDP proceedings regarding her mesne profits from the date of suit till delivery of possession.
The original Judgment kept in OS.No.16908/2004 and the copy of the Judgment was kept in OS.No.16375/2006.
Draw up decree accordingly.
[Dictated to the Stenographer on 4.3.2020, by pronouncing same in the open Court and the same was transcribed by her and typed by her and thereafterwords corrected and signed by the Presiding Officer on 4th day of March 2020).
[ B.S. Bharathi ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru.
SCHEDULE IN OS.NO.16908/2004 SCHEDULE 'A' V.P. No.91/1 formed out of 141/2, Corporation No.82, of Nagavarapalya, C.V. Raman Nagar Post, Bangalore and described in the sketch which gives the details and allotted to the share of Sri. Suresh Salariya. B. Khaneshumari No.82, New No.91, Nagavarapalya, Binnamangala Dhakle, K.R. Puram Hobli. 90 OS.No.16908/2004 c/w
OS.No.16375/2006 SCHEDULE 'B' V.P. No.91/2 formed out of 141/2, Corporation No.82/4, of Nagavarapalya, C.V. Raman Nagar Post, Bangalore and described in the sketch which gives the details and allotted to the share of Sri. Satish Salariya.
SCHEDULE 'C' V.P. No.91/4 formed out of 141/2, Corporation No.82, of Nagavarapalya, C.V. Raman Nagar Post, Bangalore and described in the sketch which gives the details and allotted to the share of Sri. Ashok Salariya.
SCHEDULE 'D' V.P. No.91/5 formed out of 141/2, Corporation No.82, of Nagavarapalya, C.V. Raman Nagar Post, Bangalore and described in the sketch which gives the details and allotted to the share of Sri. Subash Salariya. 91 OS.No.16908/2004 c/w
OS.No.16375/2006 SCHEDULE IN OS.NO.16375/2006 SCHEDULE 'A' All that part and parcel of immovable property being the site with buildings bearing khanesumari No.82 (Old) Present No.168, situated at Nagavarapalya Village, Dakhale of Benninganahalli, K.R.Puram Hobli, Bangalore East Taluk (formerly Bangalore South Taluk), Bangalore Urban District measuring East to West: 50 feet and North to South : 100 feet and bounded on the:
East by : Formerly Chinnappa's property. West by : Property bearing No.141/2.
North by : Property bearing No.82/2.
South by : Road.
ANNEXURE
1. List of witnesses examined for the Plaintiff:-
P.W.1 : Rita Vijay Suri.
2. List of documents marked:-
Ex.P.1 : Certified copy of the Sale Deed
dtd:21.4.1964.
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OS.No.16375/2006
Ex.P.2 : Legal Notice dtd: 21.10.2004.
Ex.P.3 : Reply dtd: 5.11.2004.
Ex.P.4 : Certified copy of the order dtd: 18.2.2006
passed in S.C.No.297/2005.
Ex.P.5 & : Two Encumbrance Certificates.
Ex.P.6
Ex.P.7 : Certified copy of the order sheet in
S.C.No.297/2005.
Ex.P.8 : Certified copy of the Sale Deed dtd:
19.2.2003.
Ex.C.1 : Verifying Affidavit in OS.No.16375/2006.
Ex.C1(a) : Signature of Deponent.
3. List of witnesses examined by the defendant:
DW.1 : Suresh Salariya. DW.2 : V. Mohamed Shafiulla.
4. List of documents marked by the defendant:
Ex.D.1 : Sale Deed dtd: 9.1.1985.
Ex.D.2 : Order sheet in S.C.No.297/2005.
Ex.D.3 : Sale Deed dtd: 21.4.1964.
Ex.D.4 : Oral Partition dt: 17.4.1981.
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OS.No.16375/2006
Ex.D.5 : Sanctioned plan dtd: 20.6.1981.
Ex.D.6 : Death Certificate of K.C. Salariya.
Ex.D.7 : Death Certificate of Sushila K. Salariya.
Ex.D.8 : Tax payers list issued by Bayappanahalli
Gramapanchayath.
Ex.D.9 : Kandaya paid receipt.
Ex.D.10 : Intimation dtd: 19.6.2002 issued by BBMP.
Ex.D.11 : Receipts for payment of beterment & charges.
Ex.D.12 Ex.D.13 : Khatha Certificate.
Ex.D.14 : Khatha Extract.
Ex.D.15 : Five Tax paid receipts.
to Ex.D.19 Ex.D.20 : Electricity Bill and receipt. & Ex.D.21 Ex.D.22 : Tax estimation register.
Ex.D.23 : Kandaya paid receipt.
Ex.D.24 : Intimation dtd: 20.6.2002 issued by BBMP.
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OS.No.16375/2006
Ex.D.25 : Receipts for payment of betterment
& charges.
Ex.D.26
Ex.D.27 : Khatha Certificate dtd:9.7.2012. Ex.D.28 : Khatha Extract dtd: 9.7.2012. Ex.D.29 : Kandaya Paid Receipt.
to Ex.D.33 Ex.D.34 : Death Certificate of Satish Salariya. Ex.D.35 : List of tax assessment.
Ex.D.36 : Kandaya paid receipt.
Ex.D.37 : Intimation given by BBMP dtd: 19.6.2002.
Ex.D.38 : Receipts for payment of betterment & charges. ExD.39
Ex.D.40 : Khatha Certificate dtd: 9.7.2012. Ex.D.41 : Khatha Extract dtd: 9.7.2012. Ex.D.42 : Tax paid receipts.
to Ex.D.47 Ex.D.48 : Electricity Bill and Receipt. & 95 OS.No.16908/2004 c/w OS.No.16375/2006 Ex.D.49 Ex.D.50 : Certified copy of Partition Deed dtd:
4.9.1978.
Ex.D.51 : Certified copy of the Sale Deed dtd:
9.1.1985.
Ex.D.52 : Tax assessment list.
Ex.D.53 : Intimation given by BBMP dtd: 26.6.2002.
Ex.D.54 : Receipts for payment of betterment & charges. Ex.D.55 Ex.D.56 : Tax paid receipts. to Ex.D.60
Ex.D.61 : Electricity Bills and Water Bills and Receipts. to Ex.D.66 Ex.D.67 : Khatha Certificate.
Ex.D.68 : Khatha Extract.
Ex.D.69 : House tax assessment issued by Byappanahalli Panchayath.
Ex.D.70 : Tax paid receipts.
to Ex.D.72 96 OS.No.16908/2004 c/w OS.No.16375/2006 Ex.D.73 : Notice for tax fixation.
Ex.D.74 : Khatha Certificate and & Khatha Extract. Ex.D.75
Ex.D.76 : Certified copy of assessment list. Ex.D.77 : Tax paid receipt.
Ex.D.78 : Notice given by BBMP.
Ex.D.79 : Tax paid receipt.
Ex.D.80 : Khatha Certificate and & Khatha Extract. Ex.D.81 Ex.D.82 : Tax paid receipts. to Ex.D.86
Ex.D.87 : Electricity Bill and receipt. & Ex.D.88 Ex.D.89 : Death Certificate of Ashok Salariya. Ex.D.90 : Tax paid receipts.
to Ex.D.93 Ex.D.94 : Oral Partition dt: 17.4.1981. Ex.D.95 : Letter written by father of DW.1 to 97 OS.No.16908/2004 c/w OS.No.16375/2006 Secretary, ITI Ltd.
Ex.D.96 : Permit for purchase of cement. Ex.D.97 : Three documents obtained from the office to of the Estate Manager, Bombay Housing Ex.D.99 Board under RTI Act.
Ex.D.100 : Challan and Delivery order from Bharath & Steel Rerolling Mills.
Ex.D.101 Ex.D.102 : Four cash bills.
to Ex.D.105 Ex.D.106 : Document marked for the purpose of showing the signature of the father of DW.1. Ex.D.106 : Signature of DW.1's father.
(a) Ex.D.107 : Applications submitted by the father of & DW.1.
Ex.D.108 (B.S. Bharathi), XXVIII ACC & SJ, B'luru.
98 OS.No.16908/2004 c/w
OS.No.16375/2006 Judgment pronounced in open Court as under :- (vide order separately) ORDER The suit in OS.No.16908/2004 is dismissed.
However the suit of the Plaintiff in OS.No.16375/2006 is decreed.
It is declared that Plaintiff is entitled for 1/7th share in the 'A' Schedule Property and entitled for separate possession by partitioning her share by metes and bounds from the Defendants and Defendants are directed to deliver her 1/7th share by partitioning the 'A' Schedule Property by metes and bounds and mesnen profits from the date of suit till the date of delivery of possession.
Separate enquiry has to be held in FDP proceedings regarding her mesne profits from the date of suit till delivery of possession.
The original Judgment kept in OS.No.16908/2004 and the copy of the Judgment was kept in 99 OS.No.16908/2004 c/w OS.No.16375/2006 OS.No.16375/2006.
Draw up decree accordingly.
(B.S. Bharathi), XXVIII ACC & SJ, B'luru.
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