Bangalore District Court
Sri. A.N.Gopinath vs Smt.Padmavathi on 4 September, 2018
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 4th Day of September, 2018
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 1952/2014
Plaintiff/s : 1. Sri. A.N.Gopinath
S/o Late A.Namadevan
Aged about 50 years,
R/at No.1, 1st Cross,
Damodar Mudaliar Street,
R.K. Mutt Road, Ulsoor,
Bengaluru - 560 008.
2. Smt. Nandini A.
W/o Late A.N.Sureshkumar
Aged about 42 years,
R/at Kavya Srinivasa Nilaya
10th Main, 10th Cross,
Nandhanam Colony, Horamavu,
Bengaluru - 560 043.
3. Sri.N.S.Abhishek
S/o Late A.N.Sureshkumar
Aged about 19 years,
R/at Kavya Srinivasa Nilaya
10th Main, 10th Cross,
Nandhanam Colony, Horamavu,
Bengaluru - 560 043.
[By Sri. D.P.Mahesh, Adv.]
-Vs-
Defendant/s : 1. Smt.Padmavathi
W/o A.Namadevan
Aged about 67 years,
R/at No.588, 10th Main, 6th Cross,
HAL, 1st Floor, 3rd Stage,
Bengaluru - 560 075
2 OS.No.1952/2014
2. Smt. A.N.Ashalatha
W/o Muralidharan
D/o Sri. A.N.A.Namadevan
Aged about 45 years,
R/at No.588, 10th Main, 6th Cross,
HAL, 1st Floor, 3rd Stage,
Bengaluru - 560 075
3. Sri. A.N.Ravindranath
S/o Late A.Namadevan
Aged about 43 years,
R/at No.588, 10th Main, 6th Cross,
HAL, 1st Floor, 3rd Stage,
Bengaluru - 560 075
[D1 - by Sri. M.K.S., Adv.]
[D2 - by Sri. R.A, Adv.]
[D3 - by Sri. Sathish Gowda, Adv.]
Date of institution of the suit 10.3.2014
Nature of the suit Partition & Declaration
Date of commencement of 12.9.2014
recording the evidence
Date on which the judgment 04.09.2018
was pronounced
Total duration Years Months Days
04 05 25
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
*********
JUDGMENT
This is a suit for declaration, partition and separate possession.
3 OS.No.1952/2014
2. The case of the plaintiffs is that, one A.Namadevan is the husband of defendant No.1 and he died on 6.7.1981 leaving behind the plaintiffs and defendants as his legal heirs. The further case of the plaintiffs is that the said Namadevan was in need of a house and as such he has made an application before the CITB, Bengaluru and as per the Resolution dated 23.11.1974 the suit 'B' schedule property was allotted to him and the said CITB has called upon the said Namadevan to remit a sum of Rs.4,200/- and accordingly the said Namadevan remitted the above amount and in pursuance of the same, the CITB has executed a lease-cum-sale agreement dated 23.3.1977 and the above said lease cum sale agreement was for a period of 10 years and as per the condition Namdevan was paying Rs.3/- per year as rent from 27.3.1978 and during the said lease period the said Namadevan died on 6.7.1981 and after his death the plaintiffs and defendants being his legal heirs have inherited the schedule property as per the Hindu Law. The further case of the plaintiffs is that after the death of said Namadevan and after the expiry of the lease period of the schedule 'B' property, the plaintiff No.1 being the elder brother got transferred the schedule 'B' property in the name of defendant No.1 and accordingly a letter was issued in the 4 OS.No.1952/2014 name of defendant No.1 on 26.7.1982 calling for the production of certain documents and after completing the formalities a Transfer Agreement dated 10.8.1982 in respect of the schedule 'B' property was effected in the name of defendant No.1 and in pursuance of the said agreement and after the completion of the lease cum sale period an absolute sale deed was executed by CITB in favour of defendant No.1 on 19.4.1996 and in fact the father of the plaintiff No.1 namely Namadevan had paid the entire amount and as such the defendant No.1 has not at all contributed any amount towards the sale consideration of the above said sale deed and in the meanwhile due to the expansion of the family the first floor was constructed and thereafter since misunderstanding had taken place in between the defendant No.1 and her daughter-in-laws i.e., the wife of Plaintiff No.1 as well as the wife of eldest son Late A.N.Suresh Kumar then both of them resided separately along with their family. However, the defendant No.1 and defendant No.3 resided together in the suit 'B' schedule property and in the meanwhile the defendant No.1 has let out the ground floor portion of 'B' schedule property in favour of a tenant and since he did not vacate then the defendant No.1 initiated eviction proceedings against him in OS.No.3788/2011 before 5 OS.No.1952/2014 this Court and the same was decreed and the said decree was also executed in Execution No.2561/2012 and accordingly on 12.12.2012 the possession was also taken by the defendant No.1 and thereafter the defendant No.1 along with defendant No.2 started living in the ground floor and whereas the defendant No.3 along with his family started residing in the first floor of the suit 'B' schedule property. When that is so, during the month of July, 2006 the defendant No.1 and 2 started trying to dispossess the defendant No.3 from the ground floor portion of the suit 'B' schedule property and as such he complained to the same to the plaintiff No.1 and hence the plaintiff No.1 tried to convince his mother and sister but the defendant No.1 started claiming herself as the absolute owner of suit 'B' schedule property and thus the plaintiffs conveyed several Panchayaths to resolve the same. But to the great surprise of plaintiff No.1, the defendant No.1 denied the rights of the plaintiffs over the entire suit 'B' schedule property and thereafter executed a document purported to be a Gift deed in favour of defendant No.2 and immediately the plaintiff No.1 enquired into the matter and came to know that the defendant No.1 has executed a Gift deed dated 3.4.2013 in favour of defendant No.2 alleged to have gifted the entire 6 OS.No.1952/2014 ground floor portion of suit 'B' schedule property in favour of defendant No.2 and so also first floor portion of suit 'B' schedule property in favour of defendant No.3 and since the defendant No.1 has no exclusive right over the entire suit 'B' schedule property and since she has only got a right of 1/5th share over the same then the above gift deed in respect of the 'B' schedule property is not at all binding on the plaintiffs and left with no option the plaintiffs have filed this suit for the relief of declaration, partition and separate possession over the suit 'B' schedule property.
3. On the other hand, the defendant No.1 has filed her separate written statement and except admitting her relationship with the plaintiffs and other defendants, she has denied the other averments of the plaint as false and incorrect and further contended that she is the absolute owner and in possession of the suit schedule property acquired from the B.D.A. through a registered sale deed dated 19.4.1996. The further case of the defendant No.1 is that her husband A.Namadevan died on 6.7.1981 and the entire burden of running the family was shifted to her and as such she alone maintained the entire family including the education of children, food and shelter by her own earnings 7 OS.No.1952/2014 and by doing labour and out of her savings she has remitted the sale consideration amount to the B.D.A. for purchase of the suit schedule 'B' property in her name and as such the suit 'B' schedule property is her self-acquired property. The further case of the defendant No.1 is that in order to put up construction over the suit schedule property she had applied for sanction of building plan and she has also availed loan facility from third parties and put up construction of the aforesaid property by her own earnings and as such her children have not at all contributed anything while purchasing the said property or at the time of constructing the said property. And in fact she alone obtained water connection, electricity supply to the suit schedule property and thereafter she had let out the first floor to a tenant by name Smt.M.J.Kalpana and when she refused to vacate the same she got filed eviction petition before the City Civil Court in OS.No.3780/2011 and after contest the said suit was decreed and in execution proceedings she had taken the possession of the ground floor portion and during her crucial and difficult time since her daughter i.e., defendant No.2 had looked after and supported her then she had gifted the ground floor portion to her through a registered Gift deed dated 3.4.2013 and in pursuance of the gift deed the 2nd 8 OS.No.1952/2014 defendant is in possession and enjoyment of the ground floor as its absolute owner and in fact she and the defendant No.3 are in possession of the first floor portion and when that is so, the suit of the plaintiffs for the relief of partition and separate possession is not at all maintainable in law and the court fee paid is insufficient and accordingly prayed for dismissal of the suit with cost.
4. And whereas the defendant No.2 has also fled her separate written statement and denied the suit of the plaintiffs as false and incorrect and further contended that the defendant No.1 is the absolute owner and possessor of the suit schedule property and the defendant No.1 has purchased the suit 'B' schedule property out of her own earnings through a registered sale deed dated 19.4.1996 and after the death of her father A.Namadevan, the defendant No.1 alone maintained the entire family including the education of her children, food and shelter and out of her savings the defendant No.1 has remitted the sale consideration amount to the B.D.A. and as such the B.D.A. has executed a registered sale deed in the name of defendant No.1 and thereafter the defendant No.1 availed loan facility from third parties and put up construction over the aforesaid 9 OS.No.1952/2014 property by her own earnings and during her crucial and difficult time of defendant No.1 she looked after her and supported her and as such out of her love and affection the defendant No.1 has gifted the ground floor portion to her through a registered Gift deed dated 3.4.2013 and as such she has became the absolute owner and possessor of ground floor portion and when that is so, the suit of the plaintiffs for the relief of partition and separate possession is not at all maintainable in law and accordingly prayed for dismissal of the suit.
5. And whereas the defendant No.3 has filed a memo that he being the legal heir of deceased A.Namadevan has got 1/5th share over the suit 'B' schedule property and accordingly he prayed for decreeing the suit of the plaintiffs by allotting his 1/5th share over the same.
6. On the basis of the pleadings, one of my learned predecessor has framed the following issues : -
1) Whether the plaintiffs prove that the suit schedule property is the joint family property of themselves and the defendants?
2) Whether the defendant No.1 proves that she is the absolute owner of the suit schedule property?
3) Whether the defendant No.1 proves that the suit is not properly valued and the court fee paid is insufficient?10 OS.No.1952/2014
4) Whether the plaintiffs are entitled for the relief as sought for?
5) What Order or decree?
7. In order to prove the above issues, the plaintiff No.1 got examined himself as PW.1 and got marked the documents at Ex.P1 to P9. On the other hand, the defendant No.1 and 2 got themselves examined as DW.1 and 2 respectively and got marked the documents at Ex.D1 and D2 and thereafter the matter was posted for arguments.
8. And I have heard the arguments of both sides and perused the entire materials placed on record.
9. And my findings on the above issues are as under:-
Issue No.1: In the affirmative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: Partly in the affirmative. Issue No.5: As per final order, for the following:
REASONS
10. Issue No.1 to 4:- Since these issues are inter- related then they are hereby discussed commonly in order to avoid repetition of facts.
11 OS.No.1952/2014
11. In order to prove the facts in issue No.1 and 4, the plaintiff No.1 got examined himself as PW.1 and got marked the documents at Ex.P1 to P9, wherein the oral evidence of plaintiff/PW.1 clearly proved that one A.Namadevan is the husband of defendant No.1 and he died on 6.7.1981 leaving behind the plaintiffs and defendants as his legal heirs.
12. And the oral evidence of plaintiff/PW.1 and the documentary evidence of Ex.P1 to P3 further proved that the said Namadevan was in need of a house and as such he has made an application before the CITB, Bengaluru and as per the Resolution dated 23.11.1974 the suit 'B' schedule property was allotted to him and the said CITB has called upon the said Namadevan to remit a sum of Rs.4,200/- and accordingly the said Namadevan remitted the above amount and in pursuance of the same, the CITB has executed a lease-cum-sale agreement dated 23.3.1977 and the above said lease cum sale agreement was for a period of 10 years and as per the condition Namdevan was paying Rs.3/- per year as rent from 27.3.1978 and during the said lease period the said Namadevan died on 6.7.1981 and after his death the plaintiffs and defendants being his legal heirs have inherited the schedule property as per the Hindu Law.
12 OS.No.1952/2014
13. And the oral evidence plaintiff/PW.1 and the documentary evidence of Ex.P4 and P5 further proved after the death of said Namadevan and after the expiry of the lease period of the schedule 'B' property, the plaintiff No.1 being the elder brother got transferred the schedule 'B' property in the name of defendant No.1 and accordingly a letter was issued in the name of defendant No.1 on 26.7.1982 calling for the production of certain documents and after completing the formalities a Transfer Agreement dated 10.8.1982 in respect of the schedule 'B' property was effected in the name of defendant No.1 and in pursuance of the said agreement and after the completion of the lease cum sale period an absolute sale deed was executed by CITB in favour of defendant No.1 on 19.4.1996 and in fact the father of the plaintiff No.1 namely Namadevan had paid the entire amount and as such the defendant No.1 has not at all contributed any amount towards the sale consideration of the above said sale deed and in the meanwhile due to the expansion of the family the first floor was constructed and as such the suit schedule property has become the joint family property of plaintiffs and defendants.
13 OS.No.1952/2014
14. And the oral evidence of plaintiff/PW.1 and the documentary evidence of Ex.P6 to P9 further proved that since misunderstanding had taken place in between the defendant No.1 and her daughter-in-laws i.e., the wife of Plaintiff No.1 as well as the wife of eldest son Late A.N.Suresh Kumar then both of them resided separately along with their family, but however the defendant No.1 and defendant No.3 resided together in the suit 'B' schedule property and in the meanwhile the defendant No.1 has let out the ground floor portion of 'B' schedule property in favour of a tenant and since he did not vacate then the defendant No.1 initiated eviction proceedings against him in OS.No.3788/2011 before this Court and the same was decreed and the said decree was also executed in Execution No.2561/2012 and accordingly on 12.12.2012 the possession was also taken by the defendant No.1 and thereafter the defendant No.1 along with defendant No.2 started living in the ground floor and whereas the defendant No.3 along with his family started residing in the first floor of the suit 'B' schedule property and when that is so, during the month of July, 2006 the defendant No.1 and 2 started trying to dispossess the defendant No.3 from the ground floor portion of the suit 'B' schedule property and as such he complained to the same to 14 OS.No.1952/2014 the plaintiff No.1 and hence the plaintiff No.1 tried to convince his mother and sister but the defendant No.1 started claiming herself as the absolute owner of suit 'B' schedule property and thus the plaintiffs conveyed several Panchayaths to resolve the same and to the great surprise of plaintiff No.1, the defendant No.1 denied the rights of the plaintiffs over the entire suit 'B' schedule property and thereafter executed a document purported to be a Gift deed in favour of defendant No.2 and since the defendant No.1 has no exclusive right over the entire suit 'B' schedule property and since she has only got a right of 1/5th share over the same then the above gift deed in respect of the 'B' schedule property is not at all binding on the plaintiffs and left with no option the plaintiffs have filed this suit for the relief of declaration, partition and separate possession over the suit 'B' schedule property.
15. Even though the plaintiff/PW.1 was thoroughly cross-examined by the contesting defendant No.1 and 2 still nothing worthwhile has been elicited to discard the oral and documentary evidence of the plaintiff that are placed on record.
15 OS.No.1952/2014
16. And further though the plaintiff has not lead the evidence of any witnesses, the same is not at all fatal to his case as in a ruling of 2014 (2) AKR 477 our Hon'ble High Court of Karnataka has clearly held that "Hindu Law - Joint family property - Suit for partition - Initial burden of proof - Not on the plaintiffs to prove that the suit properties were joint family properties - On defendants to prove the factum of partition as pleaded by them."
17. On the other hand, though the defendant No.1 and 2 have denied the contentions of the plaintiff and further pleaded that the defendant No.1 is the absolute owner and possessor of the suit schedule property and the defendant No.1 has purchased the suit 'B' schedule property out of her own earnings through a registered sale deed dated 19.4.1996 and after the death of her father A.Namadevan, the defendant No.1 alone maintained the entire family including the education of her children, food and shelter and out of her savings the defendant No.1 has remitted the sale consideration amount to the B.D.A. and as such the B.D.A. has executed a registered sale deed in the name of defendant No.1 and thereafter the defendant No.1 availed loan facility from third parties and put up construction over the aforesaid 16 OS.No.1952/2014 property by her own earnings and during her crucial and difficult time of defendant No.1 she looked after her and supported her and as such out of her love and affection the defendant No.1 has gifted the ground floor portion to her through a registered Gift deed dated 3.4.2013 and as such she has became the absolute owner and possessor of ground floor portion and when that is so, the suit of the plaintiffs for the relief of partition and separate possession is not at all maintainable in law is concerned, the same do not hold any water as the above material facts are not at all proved by the above said defendant No.1 and 2 with cogent material evidence.
18. And in fact except leading the self-interested oral versions at DW.1 and 2 and further got marking the two revenue documents i.e., khata extract and khata certificate at Ex.D1 and D2, the above said defendant No.1 and 2 have neither examined any witnesses nor even placed any other cogent material evidence to prove that the defendant No.1 has purchased the suit 'B' schedule property out of her own earnings through a registered sale deed dated 19.4.1996 and thereafter the defendant No.1 availed loan facility from third 17 OS.No.1952/2014 parties and put up construction over the aforesaid property by her own earnings.
19. And moreover contrary to her pleadings and evidence the defendant No.1 at page-7 of her cross- examination has clearly admitted that during the life time of her husband, the BDA has allotted a site in his favour and thereafter the B.D.A. also executed a lease cum agreement and so also the possession certificate in favour of her husband and when that is so he died in a road accident during the year 1981 and in a claim petition she got a compensation amount of Rs.50,000/- as below : "£À£Àß UÀAqÀ£ÀÄ §zÀÄQzÁÝUÀ CªÀjUÉ ©rJ ¢AzÀ MAzÀÄ ¸ÉÊmï C¯Ámï DVvÀÄÛ CAzÀgÉ ¸Àj. £ÀAvÀgÀ ©rJ zÀªÀgÀÄ £À£Àß UÀAqÀ¤UÉ °Ã¸ï PÀA CVæªÉÄAl£ÀÄß §gÉzÀÄPÉÆnÖzÀÝgÀÄ CAzÀgÉ ¸Àj. CzÁzÀ £ÀAvÀgÀ CªÀjUÉ ©rJ zÀªgÀ ÀÄ ¸Áé¢üãÀzÀ ¥ÀvÀæªÀ£ÀÄß ¸ÀºÀ PÉÆnÖzÀÝgÀÄ CAzÀgÉ ¸Àj. £À£Àß UÀAqÀ£ÀÄ 1981gÀ°è ªÀÄÈvÀ¥n À ÖgÀÄvÁÛgÉ. CªÀgÀÄ gÀ¸ÉÛ C¥ÀWÁvÀzÀ°è ªÀÄÈvÀ¥n À ÖgÀÄvÁÛgÉ.
¥ÀjºÁgÀ ¸ÀA§AzÀs £Á£ÀÄ JA«¹ zÁªÉ ºÁQzÉÝ CAzÀgÉ ¸Àj. ªÉÄÃ¯É ºÉýzÀ zÁªÉAiÀÄ°è gÀÆ.50,000/-UÀ¼ÀÄ ¥ÀjºÁgÀ §A¢gÀÄvÀÛz"É .
20. And since the defendant No.1/DW.1 at page-8 of her cross-examination has further admitted that suit house was constructed during the year 1985 and all her children were residing jointly in that house and since the defendant 18 OS.No.1952/2014 No.1 has not at all produced any documentary evidence to prove that she has alone paid the consideration amount towards the registration of the suit site and she has alone built the suit house by availing loan from third parties then in the absence of the same it has to be held in unequivocal terms that the defendant No.1 has used the above said compensation amount and so also the death benefits of her husband towards the registration of the suit site and also for construction of the house.
21. Even though the defendant No.2 has supported the case of the defendant No.1 by leading her oral evidence at DW.2, the same is of no help either to her case or to the case of the defendant No.1 as she/DW.2 too at page 7 of her cross-examination has clearly admitted that as per the documentary evidence of Ex.P1 the suit property was allotted to her father and her father was working at ITC company and even the lease cum sale agreement of Ex.P2 with regard to the suit site was in the name of her father.
22. And since the defendant No.1 and 2 have neither examined any witnesses nor even produced any cogent material evidence to prove that the defendant No.1 alone has purchased the suit schedule property and constructed the 19 OS.No.1952/2014 suit house by availing loan from third parties then it has to be held in unequivocal terms that the defendant No.1 had no absolute right to bequeath the suit property in favour of defendant No.2 and 3 through the registered Gift deed of Ex.P9 dated 3.4.2013 and as such the same is not at all binding on the share of the plaintiffs over the suit schedule property.
23. So in view of the discussion made above I am of the opinion that since the plaintiffs have clearly proved that the suit schedule property is the joint family property of themselves and the defendants and since the defendant No.1 and 2 have failed to prove that the defendant No.1 is the absolute owner of the suit schedule property and further failed to prove that the defendant No.1 had absolute right to bequeath the suit schedule property in favour of defendant No.2 and 3 through the registered Gift deed dated 3.4.2013 and further failed to prove that the suit schedule property is not properly valued and the court fee paid by the plaintiff is insufficient with cogent material evidence then the plaintiffs are entitled to the relief of declaration, partition and separate possession over the suit schedule property and as regards the mesne profits is concerned, since the plaintiffs have not 20 OS.No.1952/2014 at all placed any cogent materials to show that the suit 'B' schedule property is yielding any benefits then the plaintiffs are not at all entitled for the same and accordingly I have answered issue No.1 in the affirmative, issue No.2 and 3 in the negative and issue No.4 in partly affirmative.
24. Issue No.5:- In view of the discussion made on issue No.1 to 4 and further holding issue No.1 in the affirmative, issue No.2 and 3 in the negative and issue No.4 in partly affirmative, proceed to pass the following order:-
ORDER The suit of the plaintiffs for the relief of declaration and partition and separate possession is hereby decreed.
And It is further decreed and declare that the plaintiff No.1 to 3 are jointly entitled to 2/5th share i.e., 1/5th share to the plaintiff No.1 and 1/5th share jointly to the plaintiff No.2 and 3 and so also defendant No.1 to 3 are each entitled to 1/5th share over the suit 'B' schedule property.
And It is further decreed and declared that the registered Gift deed dated 3.4.2013 one executed by defendant No.1 in favour of defendant No.2 and 3 in respect of suit 'B' schedule property is not at all binding on the share of the plaintiffs.21 OS.No.1952/2014
And It is further decreed that the suit 'B' schedule property be partitioned by metes and bounds and the plaintiffs be allotted their 2/5th share over the suit 'B' schedule property.
In view of the peculiar circumstances the parties are directed to bear their own cost.
Draw preliminary decree accordingly. (Dictated to the judgment writer on the Computer, corrected and then pronounced by me in the open court, on this the 4th day of September, 2018).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 A.N.Gopinath List of documents exhibited for plaintiffs:
Ex.P1 Certified copy of Allotment letter by CITB dtd.23.11.1974 Ex.P2 Certified copy Lease cum sale agreement Ex.P3 Certified copy of possession certificate Ex.P4 Certified copy of Transfer agreement Ex.P5 Certified copy of Sale deed dtd.19.4.1996 Ex.P6 Certified copy of Khata certificate Ex.P7 Khata extract Ex.P8 Certified copy of encumbrance certificate Ex.P9 Certified copy of Gift deed dtd.3.4.2013 22 OS.No.1952/2014 List of witnesses examined for defendants:
DW.1 Padmavathi DW.2 A.N.Ashalatha
List of documents exhibited for defendants:
Ex.D1 Khata extract
Ex.D2 Khata certificate
XVII Addl. City Civil & Sessions
Judge, Bengaluru.
Digitally signed by R RAVI
DN: cn=R RAVI,ou=HIGH
COURT OF
R RAVI KARNATAKA,o=GOVERNMENT
OF
KARNATAKA,st=Karnataka,c=I
N
Date: 2018.09.05 12:07:58 IST