Bangalore District Court
And vs Contends That on 24 April, 2015
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 24th Day of April 2015.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl.City Civil & Sessions Judge.
Bengaluru.
O. S. No. 4 5 3 5 / 2004
4Plaintiffs 1. Sri.J.R.Venkataswamy,
s/o.late J.N.Ramaiah,
aged about 54 years.
2. Sri.K.V.Naveen Kumar,
s/o.J.R.Venaktaswamy,
aged about 19 years.
Both residing at No.10,
Venkataramanappa Layout,
Arvindanagar, Bengaluru-84.
by Sri.G.S.Mahadevappa, Advocate.
Vs.
Defendants 1. Sri.B.V.Prabhakar,
s/o.late V.Venkataswamy,
aged 44 years, residing at No.155,
2nd Floor, Akkipet Main Road,
Bengaluru-53.
2. Sri.B.V.Devandrappa,
s/o.late V.Venkataswamy,
since deceased, by his LRs.
a. Smt.V.Geetha,
Aged 42 years,
w/o.late B.V.Devendra.
b. Kumari Bhagyialakshmi,
Aged about 18 years,
d/o.late B.V.Devendra.
2 O.S.No.4535/2004
c. Kumari Manasa,
Aged about 15 years, minor, being
represented by her mother, natural
guardian Smt.V.Geetha.
1 to 3 are residing at No.11, 2nd Floor
N.M.Lane, Bengaluru-53.
3. Sri.B.V.Vijayakumar Alias
B.V.Satyanarayana,
s/o.late V.Venkataswamy,
aged about 40 years, residing at No.1,
1st Floor, 4th Cross, Akkipet Main Road
Bengaluru-53.
4. Sri.Ramaiah,
Father name not known to plaintiff,
Age major, residing at 1st floor of the
premises No.2, 4th Cross, Akkipet Main
Road, Bengaluru-53.
D1-by Sri.B.S.Gurudath, Advocate.
D2-by Sri.B.Bhavani Shankar Rao, Advocate.
LRs. of D2 (a to c) -Absent
D3 - exparte.
D4 - deleted vide Order dtd.6-1-2006
Date of institution of suit 29-6-2004
Nature of the suit Partition and separate
possession and
Mesne profit
Date of commencement of 12-6-2008
recording of evidence
Date on which Judgment 24-4-2015
was pronounced
Total duration Days Months Years
25 09 10
3 O.S.No.4535/2004
JUDGMENT
This suit filed by the plaintiffs 1 and 2 against the defendants 1 to 4, claiming partition and separate possession of their 1/4th share in the suit schedule properties, together with mesne profits of the schedule properties and costs and such other reliefs, which Court deems fit.
2. The brief facts of the plaint averments are that, the plaintiff No.2 is son of plaintiff No.1 and that, the wife of plaintiff No.1, by name B.V.Gayathri Devi alias Kavitha is the sister of defendants No.1 to 3 and defendant No.4 is a tenant and that, defendant No.2 Devendra has died and defendants No.2(a) to (c) are the legal representatives of deceased defendant No.2 and that, B.V.Gayathri Devi @ Kavitha, deceased Jyothi and defendants 1 to 3 are the daughters and sons of V.Venkataswamy and his wife Gowramma and that, some of the suit properties are self acquired properties of V.Venkataswamy and that, all the suit properties are the undevided joint family properties of deceased B.V.Gayathri Devi @ Kavitha and defendants 1 to 3 and that, V.Venkataswamy has died on 25-11-1978 and his wife Gowramma has died on 29-11-1962 and that, B.V.Gayathri Devi @ Kavitha has also died on 3-11-2000 and the sister of Gayathri Devi, by name Jyothi, has died on 9-7-1997 and that, plaintiffs 1 4 O.S.No.4535/2004 and 2 being legal representatives of deceased B.V.Gayathri Devi @ Kavitha, are entitled to 1/4th share of deceased Gayathri Devi in the suit properties and that, after the death of V.Venkataswamy, defendants 1 to 3, B.V.Gayathri Devi @ Kavitha and Jyothi had made a formal arrangement, under which, the family properties are allotted to each of them and accordingly, B.V.Gayathri Devi @ Kavitha was also allotted some portions in the joint family properties and that, defendant No.4 is a tenant in occupation of the portion of the property, i.e., 1st floor in premises No.2 of 4th Cross, Akkipet Main Road, Bengaluru-53 and was paying rent to B.V.Gayathri Devi @ Kavitha since the said property was allotted to B.V.Gayathri Devi @ Kavitha and after her death, plaintiffs were receiving the rent and that, after the death of B.V.Gayathri Devi @ Kavitha, defendants got evicted Mittal Lal and locked the premises and plaintiff No.1 has also put another lock to the said premises, which was given on rent to defendant No.4, by B.V.Gayathri Devi @ Kavitha and that, the defendants have refused and denied to give share to the plaintiffs and that, Jyothi has passed away leaving behind plaintiffs and defendants No.1 to 3 as heirs and her share has to be divided amongst the plaintiffs and defendants 1 to 3 and that, in view of death of Jyothi due to her ill-health, as unmarried, her share has also devolved upon B.V.Gayathri Devi 5 O.S.No.4535/2004 @ Kavitha and defendants 1 to 3 and therefore B.V.Gayathri Devi @ Kavitha is entitled to 1/4th share and in view of the death of Gayathri Devi, the plaintiffs 1 and 2 being her legal representatives are entitled to succeed to 1/4th share in the suit properties.
3. This suit is opposed by the defendant No.1, by filing his written statement, wherein he admits his relationship with deceased B.V.Gayathri Devi @ Kavitha and of plaintiffs and admits that, some of the suit properties are the self acquired properties of V.Venkataswamy and he admits his relationship with defendants 2 and 3 as his brothers and he contends that, the plaintiffs are not entitled to any share in the suit property on the ground that, the defendants 1 to 3, B.V.Gayathri Devi and Jyothi have partitioned in respect of their joint family properties under a partition deed dated 1-9-1990 and as per the said partition deed, B.V.Gayathri Devi and Jyothi were allotted some of the suit properties as their shares and as per the terms of the partition (palupatti) deed dated 1-9-1990, after death of Jyothi and B.V.Gayathri Devi, their shares have devolved upon the defendants. Further, 1st defendant contends that, now Hanumanthappa is inducted as a tenant, from whom, defendant No.1 is collecting rent from the said tenant and therefore, the allegation made by plaintiffs that, above said 6 O.S.No.4535/2004 portion is under the joint lock of plaintiffs and defendant No.1, is denied. On all these grounds, it is prayed for dismissal of this suit, with costs.
4. On the basis of these rival contentions taken by the parties, following Issues are framed:
1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties of plaintiffs and defendants 1 to 3?
2. Whether the defendants prove that there was an earlier partition of all the suit properties b y means of palupatti dated 1-9-1990?
3. Whether the plaintiffs prove that they are entitled for one-fourth share in the schedule properties?
4. Whether the defendants prove that plaintiffs have no right in the properties of Smt.Gayathri and Jyothi?
5. Whether there should be an enquiry in to mesne profits?
6. What Decree or Order?
5. The plaintiffs, to prove their case, examined 1st plaintiff as P.W.1 and relied upon 9 documents, marked as Exs.P1 to P9 and closed their side.
On the other hand, defendants No.1 and 2 are examined as D.Ws.1 and 2 respectively and relied upon 10 documents, marked as Exs.D1 to D10 and closed their side.
7 O.S.No.4535/20046. Heard arguments of Learned Counsels for both the parties.
7. My answer to the above Issues are as under:
Issue No.1 - in the Negative;
Issue No.2 - in the Affirmative; Issue No.3 - in the Negative;
Issue No.4 - in the Negative;
Issue No.5 - in the Negative;
Issue No.6 - as per Final Order below; for the following:
Reasons
8. Issue Nos. 1 to 3 : For the sake of convenience and to avoid repetition of facts and in view of the fact that, these Issues are inter-linked and inter-connected with each other, these Issues are taken-up together for common consideration.
9. The plaintiffs contend that, 2nd plaintiff is son of 1st plaintiff and that, wife of plaintiff No.1, by name B.V.Gayathri Devi alias Kavitha is the sister of defendants No.1 to 3 and defendant No.4 is a tenant and that, defendant No.2 Devendra has died and defendants No.2(a) to (c) are the legal representatives of deceased defendant No.2 and that, Gayathri Devi, deceased Jyothi and defendants 1 to 3 are the daughters and sons of V.Venkataswamy and his wife Gowramma and that, 8 O.S.No.4535/2004 some of the suit properties are self acquired properties of V.Venkataswamy and that, all the suit properties are the joint family properties of deceased Gayathri Devi and defendants 1 to 3 and that, V.Venkataswamy has died on 25-11-1978 and his wife Gowramma died on 29-11-1962 and that, Gayathri Devi has also died on 3-11-2000 and the sister of Gayathri Devi, by name Jyothi, has died on 9-7-1997 and that, plaintiffs 1 and 2 being legal representatives of deceased Gayathri Devi, are entitled to 1/4th share of deceased Gayathri Devi in the suit properties and that, after the death of V.Venkataswamy, defendants 1 to 3, Gayathri Devi and Jyothi had made a formal arrangement, under which the family properties are allotted to each of them and accordingly, Gayathri Devi was also allotted some portions in the joint family properties and that, defendant No.4 is a tenant in occupation of the portion of the property, i.e., 1st floor in premises No.2 of 4th Cross, Akkipet Main Road, Bengaluru-53 and was paying rent to Gayathri Devi since the said property was allotted to Gayathri Devi and after her death, plaintiffs were receiving the rent and that, after the death of Gayathri Devi, defendants got evicted Mittal Lal and locked the premises and plaintiff No.1 has also put another lock to the said premises, which was given on rent to defendant No.4, by Gayathri Devi and that, the defendants have refused and denied to give share to the 9 O.S.No.4535/2004 plaintiffs and that, Jyothi has passed away leaving behind plaintiffs and defendants No.1 to 3 and her share has to be divided amongst the plaintiffs and defendants 1 to 3 and that, in view of death of Jyothi due to her ill-health, as unmarried, her share has also devolved to Gayathri Devi and defendants 1 to 3 and therefore Gayathri Devi is entitled to 1/4th share and in view of the death of Gayathri Devi, the plaintiffs 1 and 2 being her legal representatives are entitled to succeed to 1/4th share in the suit properties to be held by Gayathri Devi.
10. In order to substantiate their contentions, plaintiffs have examined 1st plaintiff as P.W.1, who has reiterated the same facts in his evidence.
11. In support of their contention, plaintiffs have relied upon Ex.P1-copy of sale deed dated 5-3-1945, Ex.P2-copy of sale deed dated 3-9-1952, Ex.P3 - Death Certificate of Jyothi, Ex.P4- Genealogy tree, Ex.P5-copy of legal notice sent to defendants, Ex.P6-copy of reminder, Ex.P7- undelivered registered cover sent to Praveen, Exs.P8 & P9 - Reply notices sent defendants 3 and 2.
12. On the other hand, defendant No.1 contends that, plaintiffs are not entitled to any share in the suit properties, on the ground that, the defendants 1 to 3, Gayathri Devi and Jyothi have partitioned in respect of their joint family properties 10 O.S.No.4535/2004 under a partition deed, dated 1-9-1990 and as per the said partition deed, Gayathri Devi and Jyothi were allotted some of the suit properties as their shares and as per the palupatti dated 1-9-1990, after death of Jyothi and Gayathri Devi, their shares have devolved upon the defendants and now Hanumanthappa is inducted as a tenant, from whom, 1st defendant is collecting rent from the said tenant and therefore, the allegation made by plaintiffs that, above said portion is under the joint lock of plaintiffs and defendant No.1, is denied.
13. In order to substantiate his contention, he has examined himself as D.W.1 and relied upon Ex.D1 - a Photograph of Gayathri Devi, Ex.D3 - partition deed dated 1-9-1990, Ex.D2 - Signature of Devendra on said partition deed, Exs.D3(a) & (b) signatures of 1st defendant, Ex.D3(c) Devendrappa's signature Ex.D3(d) - P.V.Sathyanarayana's signature Ex.D3(e)- Kavitha's signature Ex.D3(f) - signature of B.V.Jyothi, Exs.D4 and D5- Khata certificate and Khata extract, Ex.D6- Endorsement issued by Corporation, Exs.D7 to D10 - Tax paid receipts.
14. Defendant No.1 has, in order to substantiate his contention that, there is already partition between defendants 1 to 3, deceased wife of plaintiff No.1 and Jyothi, during the lifetime of Gayathri Devi and Jyothi, on dated 1-9-1990, he has relied upon Ex.D3 - partition deed. On going through 11 O.S.No.4535/2004 Ex.D3, it can be said that, the joint family properties of Gayathri Devi, Jyothi and defendants 1 to 3 has been partitioned among themselves and Gayathri Devi (wife of 1st plaintiff) is allotted "T-schedule Properties", i.e., ground floor and 1st floor of Item No. II of plaint schedule.
15. Learned counsel for plaintiffs denies the execution of Ex.D3-partition deed, regarding partition between Gayathri Devi, Jyothi and defendants 1 to 3 and denies that, the property- ground floor and 1st floor of Item No.II of plaint schedule is given to Gayathri Devi under the said partition deed dated 1-9-1990. Further, he contends that, the said partition deed marked as Ex.D3 is created and he relies upon the decision of Hon'ble High Court of Karnataka held in case of K.manjunath vs. Basavaraj and another reported in 2011 (5) Kar.L.J. 421, wherein it is held as under:
"Registration Act, 1908, Sections 17(1)(b) and 49 - Karnataka Stamp Act, 1957, Section 35 - Indian Evidence Act, 1872, Section 91 - Document purporting to be partition deed, unstamp and unregistered-Admissibility of, in evidence-Suit for relief of declaration of title in respect of immovable property sought on basis of said document-where document in question purports by itself to effect division of joint property by metes and bounds and embodies 12 O.S.No.4535/2004 all terms of bargain, document, held, is registerable compulsorily under Section 17 of Registration Act to operate as partition deed- Since it is not registered, it comes within mischief of Section 49 of said Act which prohibits reception into evidence of any document required to be registered but not admissible to prove as to which property fell to share of particular person-Trial Court, held, was not justified in marking unregistered and unstamped document, for evidence."
16. Having regard to the principles laid down in the said Judgment stated supra, Ex.D3 cannot be considered to hold that, there is a partition amongst the members of joint family of defendant No.1, consisting of defendants No.1 to 3, Jyothi and Gayathri Devi @ Kavitha. However, said document can be considered for collateral purposes, to show that, there was a partition amongst the children of V.Venkataswamy, after his death, on 1-9-1990, Gayathri Devi (wife of 1st plaintiff) is allotted "T- schedule Properties" of ExD3 i.e., ground floor and 1st floor of Item No. II of plaint schedule.
17. The contention of plaintiffs that, some properties were given by the defendants to Gayathri Devi, during her lifetime and defendant No.4 was inducted as a tenant by Gayathri Devi and was receiving rent during her lifetime and after her 13 O.S.No.4535/2004 death, plaintiffs were receiving rent in respect of said rented premises and that, in view of locking of the said premises, after evicting tenant from the premises allotted to Gayathri Devi by defendant No.1 and by plaintiff No.1 to the said let out premises, goes to show that, the plaintiffs have acted upon the said partition deed, marked at Ex.D3. Further, one of the recitals in copies of two lawyer's notices dated 3-3-2003/3-4-2003 and 20-3-2004 issued by plaintiffs' counsel, calling upon defendants 1 to 4 to effect partition and to give 1/4th share to the plaintiff in the suit properties, it goes to show that, Gayathri Devi was allotted some of the properties, which she had given on rent and was receiving rent and after her death, plaintiffs were receiving rent in lieu of her, from the tenant and defendant No.1 has evicted the said let out premises and has locked and subsequently, plaintiff No.1 has also locked to the said premises, corroborates the version of plaintiffs that, some suit properties were given and allotted to Gayathri Devi during her lifetime, by the defendants under partition entered between Gayatri Devi, Joti, and defendants 1 to 3. Plaintiffs, merely contend that, there was only a family arrangement, under which some of the properties were given to Gayathri Devi during her lifetime and the rents fetched from those let out premises by the Gayathri Devi were utilized by her and later by the plaintiffs have also taken the rent amount, after death of Gayathri Devi, 14 O.S.No.4535/2004 strengthens the contentions of defendant No.1 that, there is already a partition between Gayathri Devi, Jyothi and defendants 1 to 3, in respect of their joint family properties and that, Gayathri Devi was given ground floor and 1st floor of Item No.II of plaint schedule property, as her share.
18. In view of the fact that, there was already a partition in the family of defendants No.1 to 3, Gayathri Devi and Jyothi, as per partition deed(Palupatti) dated 1-9-1990, Gayathri Devi was allotted ground floor and 1st floor of Item No.II of suit schedule property and that, she had let out the said properties and was receiving rent and after her death, plaintiffs were receiving rent in lieu of her, goes to show that, there is already a partition in the family of defendants 1 to 3, Gayathri Devi and Jyothi and in view of said partition and taking of some of the properties under the said property by Gayatri Devi, during her life time, the contention of plaintiffs that, there was only a family arrangement, under which Gayathri Devi had taken some of the properties, cannot be accepted. Accordingly, I hold Issue Nos.1 and 3 in the Negative and Issue No.2 in the Affirmative.
19. Issue Nos. 4 and 5 : In view of my answer to Issue No.1 and 3 in the Negative and Issue No.2 in the Affirmative, I hold Issue No.4 in the Affirmative and Issue No.5 in the negative.
15 O.S.No.4535/200420. Issue No 6 : In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER Suit of the plaintiffs is dismissed.
No Order as to costs (Dictated to the Judgment Writer, computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 24th day of April 2015.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.
ANNEXURE 16 O.S.No.4535/2004 List of witnesses examined for the plaintiffs:
P.W.1 J.R.Venkataswamy List of witnesses examined for defendants:
D.W.1 B.V.Prabhakar List of documents exhibited for the plaintiffs:
Ex.P1-c.c. of sale deeds dtd. 5-3-1945 and 3-9-1952 Ex.P3 - Death Certificate of Jyothi Ex.P4 - Geneology tree Ex.P5 - copy of legal notice sent to defendants Exs.P5(a) to (d) - 4 postal acknowledgments Ex.P6 - copy of reminder sent by P.W.1 Ex.P7 - undelivered registered cover of Praveen Exs.P8 & P9 - Reply notices sent defendants 3 and 2 List of documents marked for defendants:
Ex.D1 - Photograph Ex.D2 - Signature of Devendra on Ex.D3 Ex.D3 - partition deed Exs.D3(a) & (b) signatures of D.W.1 Ex.D3(c) Devendrappa's signature Ex.D3(d) - P.V.Sathyanarayana's signature Ex.D3(e)- Kavitha's signature Ex.D3(f) - signature of B.V.Jyothi Ex.D4 - Khata certificate Ex.D5 - Khata extract Ex.D6 - Endorsement issued by Corporation Exs.D7 to D10 - Tax paid receipts (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.
....-2015 17 O.S.No.4535/2004 Judgment passed and pronounced in Open Court. (vide separate). Operative portion thereof reads as under:
XXXXXXXXXXX XXII A.C.C. & S.J., Bengaluru.