Bangalore District Court
G.S.Suresh Kumar vs G.R.Srikantappa on 19 April, 2018
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU
NGALURU (C.C.H.No.7).
(C.C.H.No.7).
Dated This the 19th Day of April, 2018.
Dated:
Present: Ms.VELA. D.K., B.A., LL.B.(Hons.)
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No. 2 7 6 9 / 1990
Plaintiffs 1. G.S.Suresh Kumar,
Since dead, by LRs.
a). Smt.Latha Suresh,
s/o.late G.S.Suresh Kumar,
aged about 52 years,
residing at No.271, 14th 'E' Cross
16th Main, Mahalakshmipuram,
Bengaluru-560086.
b). Smt.G.S.Harshitha,
d/o.late G.S.Suresh Kumar,
w/o.B.S.Rajashekhar,
aged about 32 years,
residing at No.47, 6th Cross,
Wilson Garden, Bengaluru.
... amended vide Order on I.A. No.1.
2. a). Smt.G.S.Chayadevi,
d/o.G.R.Srikantappa,
w/o.N.N.Basavaraju,
aged about 48 years, r/a No.2066,
3rd Cross, Madhavachar Road,
Old Agrahara, Mysore.
b). Smt.G.S.Ashadevi,
d/o.G.R.Srikantappa,
w/o.B.S.Yekambaraiah,
aged about 46 years,
r/a c/o.Pandurangaiah,
Sugar Apartments, B'6', 2nd Floor,
Nagala Park, Kolhapur-416003.
2 O.S.No.2769/1990
c). Smt.G.S.Pramiladevi,
d/o.G.R.Srikantappa,
w/o.M.Paramesh,
aged about 37 years,
r/a No.39(93) 1st Main Road,
Chamarajpet, Bengaluru-560018.
.....Amended vide Order Dated:17-7-2010.
by Sri.K.V.Bhuchi Reddy, Advocate.
Vs.
Defendants 1. G.R.Srikantappa,
..... Dead.
2. Sri.G.Thotadappa,
s/o.late Sri.G.Channa Somanna,
since deceased, by his LRs.
a). Smt.T.N.Susheelamma,
w/o.late G.Thotadappa,
aged about 55 years,
r/a No.93, Govindappa Road,
Basavanagudi, Bengaluru-56004.
Impleaded vide Order dtd.6-8-1997.
Passed away on 9-12-2012.
2. G.S.Rudresh,
s/o.late G.S.Suresh Kumar,
aged about 36 years,
residing at "Sri Rama Chaitanya",
No.201, Ground Floor, 2nd Cross,
Nagpura, Muneshwara Block,
Mahalakshmipuram,
Bengaluru-560086.
Also at Old No.50,
New No.50/5, 2nd Main,
3rd Cross, RMC Yard,
Yershwanthapura, Division
No.8, Bengaluru-560022.
Impleaded vide Order dated:28-6-2011
D1-by Sri.K.L.Srinivasa, Advocate.
D2-by Sri.N.Kumara, Advocate.
3 O.S.No.2769/1990
Date of institution of suit 21-05-1990
Nature of the suit Partition by metes and
bounds and
Permanent Injunction
Counter claim by Partition
D.No.2-G.S.Rudresh
Date of commencement of 03-08-1999
recording of evidence
Date on which Judgment 19-04-2018
was pronounced
Total duration Years Months Days
27 10 28
JUDGMENT
This is a suit for Partition, Declaration and Permanent Injunction.
2. The case of the plaintiff is that, defendant No.1 is the father of the plaintiff and defendant No.2 is the working partner of the Partnership Firm started by defendants 1 and 2. Basically, the plaintiff and the 1st defendant are said to constitute Hindu Joint family and to be commission agents and traders by profession. Earlier, in the suit for partition between the children of the brothers of 1st defendant and the 1st defendant, O.S.No.162/1964, matter is said to have ended in compromise in RFA Nos.175 and 178 of 1973 with RFA No.32/1974. That compromise deed is said to be dated:25-7-1977, whereby, there was said to be division of properties inter se and certain shops bearing Nos. 6 to 10 of B.B.Lane, Old Taragupet, Shop bearing No.182 on 4 O.S.No.2769/1990 Mysore Road, Bengaluru, Site No.32, Sultanpalya Gramatana, Division No.46, were said to be allotted to the share of 1st defendant. As per that decree, the family business run earlier under the name and style 'G.R.Byappa and Rudrappa' and subsequently was said to be continued in the name and style 'G.Rudrappa Sons' and that was later continued as 'G.R.Srikantappa & Co.' The plaintiffs therein and other defendants, as per the decree, are said to have no right and that the 1st defendant therein could only run the family business.
Thereby, Srikantappa & Co. is said to be ancestral family business continued by the 1st defendant earlier and even after the said partition. Now plaintiff, 1st defendant are said to have been running the business. The family business of the plaintiff is said to be in as commission agents in the sale of potatoes, onion, chilies. That was said to be the business started by the grand father of the plaintiff in one of the shops at New Taragupet, belonging to the joint family. Later it was said to have been converted into partnership business with a stranger-late Sri.G.R.Byrappa under the name and style 'Byrappa Rudrappa'. Constitution of the Firm is said to have undergone number of changes and finally to have been dissolved in 1957-58. Grand father of the plaintiff was said to be representing 5 O.S.No.2769/1990 joint family of the Firm. After his death, eldest member of the family was said to be representing the joint family in the Firm. At the time of dissolution of the Firm, 1st defendant being the eldest member of the joint family and representing so in the Firm, after dissolution of the Firm, 1st defendant, with the assets, is said to have continued the business of the firm inducting the deceased 2nd defendant as a working partner. This 2nd defendant is said to have no right in the assets of the Firm. The defendants 1 and 2 are said to have colluded and brought into existence nominal documents with the sole object of excluding of the plaintiff from getting a share in the assets of the Firm. The Firm is said to have commenced the business in the year 1958 and doing business under the name and style 'G.R.Srikantappa & Co.' The 1st defendant was said to be dominating other members of the joint family, including the plaintiff. The relationship was said to be such that, the father is said to have dominated the son, i.e., plaintiff and obtained unfair advantage. Making use of his position, 1st defendant is said to have entered into transaction with the 2nd defendant in regard to the assets of the Firm. The defendants 1 and 2, with intent to defeat the rights of the plaintiff in the assets of the Firm, finally are said to have executed document styled as 'partnership deed' depriving the right of the plaintiff in the assets of the Firm. The 6 O.S.No.2769/1990 plaintiff was said to be not liable to speak or to know the contents of the document. The plaintiff was said to be made only to listen to the father and compelled to sign the alleged document of partition as a consenting witness. This document is said to be a fraudulent document and thereby not binding on the plaintiff, so as to take away his right in the assets of the Firm.
The partnership between the 1st defendant and the 2nd defendant is said to be from 8-11-1958 in the name and style 'G.R.Srikantappa & Co.' and the place of business was said to be at No.B-60, 2nd Main Road, New Taragupet, Bengaluru City. The business was said to be of commission agents and the partnership was said to be governed by other terms and conditions contained in the said Deed. As per para 10 of the Deed, the liability and the goodwill of the partnership was to belong to the 1st defendant only, i.e., Srikantappa and the 2nd partner, namely, the 2nd defendant-Thotadappa was said to be only a working partner, thereby 2nd party is said to have no rights in the assets of the partnership or the goodwill of the said partnership. Family business was said to have been continued by the 1st defendant along with 2nd defendant as working partnership from 1958 up to the final decree dated:25-7-1977 in O.S.No. 162/1964. Out of the income of the family business, 7 O.S.No.2769/1990 the 1st defendant is said to have purchased the suit item No.1 property. The plaintiff and the 1st defendant are said to have been jointly residing in the said premises as members of the joint family. On 23-11-1978, the deed of partial partition is said to have come into existence between the plaintiff and the 1st defendant and three daughters of the 1st defendant. In that partition, item Nos.1 and 2 of the schedule property are said to have been not included. The other properties were said to be divided between the parties. The plaintiff was said to have been given two properties in the said partition, namely, Old No.182, New No.G-38, Shop measuring 6.40 meters x 5.63 meters, Site No.32, measuring 9.14 meters x 24.38 meters.
The 1st defendant is said to have got himself the shop No.8, B.B.Lane, Old Taragupet, Corporation Division No.17. The daughters were said to have been separately given properties in the said partition. This partial partition is said to have been on account of dominant role of the 2nd defendant.
On 27-3-1986, 2nd defendant again dominating the 1st defendant, who was said to be always exploiting the situation to his own advantage, is said to have got up a deed, styled as Deed of Partnership between himself and 1st defendant, thereby bringing division of item No.2 of the suit property. The 8 O.S.No.2769/1990 alleged partition was said to have been effected in such a way that the area marked 'JKJIJ' and 'MNEFN' including the constructed portion to have been allotted to the share of the 1st defendant and the area marked by the letters in 'LGHIL' and 'CDENC' to have been allotted to the share of the 2nd defendant. The bath room, water closet, stair case to the rear portion of the terrace were said to be shown as the common areas to be entered by both the parties. There are said to be also recital pertaining to the dividing wall of the two rear godowns. According to the terms of the partnership deed dated:8-11-1958, the 2nd defendant is said to be only a working partner with right to get the profits of the partnership and is said to have no right over the assets or immovable properties belonging to the partnership. The partition alleged to have been brought about in the aforesaid manner is said to be contrary to the terms of the partnership deed.
The 2nd defendant, taking advantage of the fiduciary relationship with the 1st defendant as a partner and dominating influence upon him in all his acts, is said to have got up the document to suit his own purpose, so as to deprive the members of the family of the right to the assets of the partnership. Further, this 2nd defendant is said to have had an unfair advantage in the said partnership business in 9 O.S.No.2769/1990 as much as is said to have got transferred half of the property along with the other constructed buildings to his own name in determine to the interest of the partnership and the family business. The plaintiff was said to be not aware of the fraud played by the 2nd defendant in all the transactions till April 1990 when the 1st defendant is said to have handedover to him a copy of the alleged partnership deed dated:27-3-1986 containing the signature of the plaintiff. The plaintiff was said to be always showing respect to his aged father and following his directions in the conduct of the business in the said R.M.C.Yard and is said to have no chance to doubt the clandestine transaction between 1st defendant and 2nd defendant interse. Even if any signatures of the plaintiff were said to have been taken to the alleged partnership deed, those signatures are said to taken under undue influence and fraud and therefore is said to be not binding upon the plaintiff. The business of Srikantappa & Co. in the R.M.C.Yard in the entire schedule premises, i.e., item No.2, is said to be run by the plaintiff himself. The 2nd plaintiff himself is said to have retired from the partnership in terms of his letter dated:22-10-1984. He is said to be not in possession and not running any business as such in the said premises. Being in exclusive possession of the entire property, therefore the plaintiff is said to have filed the above suit.
10 O.S.No.2769/1990Items 1 and 2 being the joint family properties, therefore the plaintiff is said to be entitled for half share by way of partition. By creating false and fabricated documents dated:27-3-1986, defendants 1 and 2 are said to have been attempting to alienate the portion that fell to the share and attempting to sell the property to one H.R.Basavaraj. Therefore, the plaintiff is said to have filed the above suit.
3. The 2nd defendant (G.Thotadappa) in the written statement has contended that there was partition between the plaintiff and the defendant as early as in 1977 and therefore, the present suit for partition is said to be not maintainable without the plaintiff seeking for earlier partition to be cancelled. The plaintiff is said to have signed many documents and not sought for cancellation of those defendants, therefore the above suit is said to be not maintainable. The defendants 1 and 2 are said to have entered into a partnership deed dated:
8-11-1958 to carryon the business in the name and style of G.R.Srikantappa and Company. The business was said to be carried as a commission agents and wholesale merchants dealing in potato and onions. That business was said to be carried on at B-60, II Main, New Tharagupet, Bangalore City, initially. Said business was said to be ancestral property of G.R.Srikantappa and in view of the fact that it was 11 O.S.No.2769/1990 made clear in the partnership deed that the 2nd defendant would have no right in the said building and this defendant was said to be described as working partner in the said firm. The shares of the partners were said to be equal and the perusal of clause 19 of the partnership deed is said to provide that the 2nd party not to have claim of the personal assets of the first party that was brought from M/s. Gollahalli Rudrappa & Sons.
In the course of the said partnership business, they are said to have prospered well and acquired vacant site from the A.P.M.C. with an intention to have own premises for the business. The A.P.M.C., Bengaluru, is said to have allotted the site No.50, situated at 3rd Main Road, in the Market Yard, by a resolution dated:8-9-1966 to the firm of G.R.Srikantappa and Company and obtained possession certificate. Further the 1st defendant and 2nd defendant are said to have borrowed sum of Rs.35,000/- from the A.P.M.C. for the purpose of construction on the site allotted to them, by depositing the original title deeds with the said Committee. With the fund raised so and with other funds of the partnership firm, defendants are said to have put up the present construction on the said site, which is item No.2 property. By an agreement dated:9-7-1976, the plaintiff is said to have admitted 12 O.S.No.2769/1990 to the partnership of the existing firm of the defendants 1 and 2 and it was said to be made clear that the plaintiff to have no claim or right whatsoever over the suit schedule property, which is in terms of clause 5 of the partnership deed. Therefore, the plaintiff was said to be admitted to the partnership without any right over the property belonging to the firm and it was said to be meant that the schedule property to exclusively to be enjoyed by the defendants 1 and 2. In the year 1984, this defendant is said to have decided to retire from the partnership firm, preparatory to the said dissolution of the firm, this defendant and the 1st defendant are said to have agreed to divide item No.2 of the schedule property in equal portion and accordingly an agreement was said to have been executed on 29-8-1984. In the said agreement, it was said to have been made clear that the item No.2 of the schedule and the goodwill of the firm to belong and to be enjoyed by 1st and 2nd defendant and the plaintiff not to have any right or interest in the event of dissolution of the firm. The said document is said to have been attested by the plaintiff as consenting witness. Thereafter, the 2nd defendant is said to have sent a registered letter dated:22-10-1984 to the 1st defendant and the plaintiff is said to have intimated them of his intention of retiring from the partnership firm of 13 O.S.No.2769/1990 Sri.G.R.Srikantappa and Company with effect from 1-11-1984. It was said to be also intimated in the said letter that in terms of agreement dated:
29-8-1984, defendants 1 and 2 to have agreed to partition item No.2 of the schedule property and that they should take up construction work of putting up partition immediately, so as to enable this defendant to start his own business in the name and style of G.Thotadappa. As per the terms of the agreement dated:29-8-1984, southern half portion of premises No.50, Market Yard, is said to have fallen to the share of 1st defendant and the northern portion of item No.2 of schedule premises is said to have fallen to the share of 2nd defendant. Rear portion was said to be divided in the manner described in the said agreement. Thereafter, the 2nd defendant is said to have requested the 1st defendant to let out southern half portion of the property to enable him to carryon the business in the entire premises. Accordingly, the 1st defendant is said to have leased his half portion to the 2nd defendant vide lease deed dated: 12-4-1984 and this defendant was said to be in the business in the name and style G.Thotadappa. The plaintiff is said to have joined services of the 2nd defendant as a manager on monthly salary of Rs.1,000/- and G.R.Srikantappa and Company is said to have not carried on any business and that this defendant is said to have retired from the firm.14 O.S.No.2769/1990
In pursuance of the agreement dated:20-9-1984, this defendant and 1st defendant are said to have effected partition of item No.2 of the plaint schedule property under the deed of partition dated: 27-3-1986. The plaintiff was said to be a consenting witness as per that document and this has the reference of clause 7 of the said deed. After execution of said partition deed, they are said to have addressed joint letter to the Secretary, A.P.M.C., Bangalore, for noting the division of the said premises. On the very same day, an application was said to have been submitted to the Corporation for bifurcation of the Khatha, for which APMC is said to have issued No Objection Certificate on 23-5-1986. The Corporation is said to have accordingly bifurcated and allotted the property No.5 and 5/3 to the portion allotted to Sri.G.R. Srikantappa to the 1st defendant and allotted 5/2 and 5/4 and allotted the property to Sri.G.Thotadappa, the 2nd defendant.
Vide letter dated:26-3-1987, this defendant is said to have informed the 1st defendant that he was said to be making arrangements for vacating all the portion that was leased to him by the 1st defendant and in the said letter it was said to have been pointed out to the 1st defendant that there is said to be necessary and that they should put up bifurcating 15 O.S.No.2769/1990 wall and deliver possession of portion belonged to the 1st defendant on 31-3-1987. Neither the plaintiff nor the 1st defendant in any manner are said to have any right in respect of suit schedule property, which was said to be never a joint family property. That property was said to be acquired out of the partnership of G.R.Srikantappa and Company consists of 1st and 2nd defendant as the partners. When the plaintiff is said to have been admitted as a partner, it was sb made clear that the 1st defendant alone to have share in the schedule property-item No.2. There was said to be no family business in the name and style of G.R.Srikantappa and Company. After the partition, there is said to be no existence of joint family between 1st defendant and the plaintiff. In the compromise decree of RFA Nos.170/1973 and 175/1973 and 32/1974, it was said to have been clear the G.R.Srikantappa and Company were said to be not in any way connected with the family and that it was plaintiff and the defendant who are said to have made claim against G.R.Srikantappa and Company and is said to have not demanded the same.
In deed, the 1st and 2nd defendants are said to have been executed partnership deed dated: 8- 11-1958 and started business in the name and style G.R.Srikantappa and Company at the premises 16 O.S.No.2769/1990 bearing No.B-60, Second Main Road, New Tharagatpet, Bangalore City. The 1st defendant is said to be a B.A. Graduate from St.Joseph College, with wide experience not only in business, but also said to be in other aspects of life. 1st defendant was said to be a Director for over 30 years of the Grain Merchant Cooperative Bank Limited, Chamarajpet and the President of Onion and Produce Marketing Association and Member of Grain Merchants Association. Further was said to be the President of Sri Sarpabhushana Shivabala Yogi Mata, Bengaluru and actively associated with several religious, cultural and social associations with good reputation in the society. Deed of partition was said to be a result of the agreement between 1st and 2nd defendant and the partition deed itself is said to have taken place after lapse of some time. Though this defendant was said to be earlier taken as a working partner, later, on properties acquired by the firm, whereupon this defendant was said to be entitled for the share. In fact, plaintiff was said to be a party to all the transactions and the documents, agreements taken place between 1st and 2nd defendant. By virtue of the injunction granted by this Court, this defendant was said to be unable to sell portion of the property. The plaintiff is said to have got himself separated from the 1st defendant, therefore there is said to be no existence of joint 17 O.S.No.2769/1990 family and item No.2 of the schedule property was said to be never joint family property. The 1st defendant is said to have passed away and therefore, suit against this defendant alone, who is stranger to the family, is said to not arise at all.
4. In the written statement the 2nd defendant (G.S.Rudresh) has contended that the properties allotted to G.R.Srikantappa branch in the compromise decree was said to be divided between himself, his son late G.S.Suresh Kumar and the daughters, who are presently plaintiffs No.2(a) (b) and (c), dated:23-11-1978. As per the decree of partition, the family business run earlier under the name and style 'G.R.Byrappa and Rudrappa' and later on 'G.Rudrappa Sons' were said to have continued as 'G.R.Srikantappa & Co." The plaintiffs therein and other defendants are said to have no right and the deceased G.R.Srikantappa could run the said family business of his own.
In deed, the deceased G.R.Srikantappa and 2nd defendant is said to have brought about a partnership dated:8-11-1958 according to the terms of which the partnership is to be styled as 'G.R.Srikantappa & Co." and the place of business as No.B-60, 2ND Main Road, New Taragupet, Bengaluru and that the business to be of commission agents dealing in potatoes and onion, etc. The partnership 18 O.S.No.2769/1990 was said to be governed by other terms and conditions contained in the deed. Further that it could be true the assets and liabilities and the goodwill to belong to deceased G.R.Srikantappa and the 2nd partner only to be a working partner. Further that the deed of partial partition to have come into existence between deceased G.S.Suresh Kumar, the father defendant and grand father of defendant and 3 daughters of deceased G.S.Srikantappa, whoa re said to be plaintiffs 2(a) to (c) in the suit.
In the said partition, items 1 and 2 of the schedule are said to have been not included, but only other properties to be divided between the parties. The father of this defendant is said to have got two properties in the said partition, namely Old No.182, New No.G-38, a shop measuring about 6.40 mtrs. x 6.53 mtrs. and site No.32 of Sultanpalya, Matadahalli, measuring 9.14 mtrs. x 24.38 mtrs. The grand father of this defendant got himself shop No.8, B.B.Lane, Old Taragukpet, Corporation No.17. The daughters were said to have been separately given the properties and the partial partition is said to have been at the instance of late Thotadappa, who had played dominant role for his self interest.
19 O.S.No.2769/1990The deceased Thotadappa is said to have always dominating influence over the deceased G.R.Srikantappa and was said to have been exploiting the situation to his advantage by reason of such influence over the deceased 1st defendant, not only to be in the business, but also in other transactions and thereby is said to have got up a deed of partition between himself and the 1st defendant bringing about division of the premises No.50, item No.2. According to the partnership deed dated: 8-11-1958, the deceased Thotadappa to be only a working partner, with a right to get the profits of the partnership and that he has no right over the assets or the immovable properties of the partnership. The partition or the division would to be violation of expressed terms of the partnership deed. The grand father of 2nd defendant G.R.Srikantappa is said to have executed a registered Will dated:
19-8-1984 registered as document No.49/84-85 in the office of Sub-Registrar, Jayanagar, wherein he is said to have bequeathed his properties as per his wish. This defendant, accordingly, is said to have been allotted with main portion, namely, the western portion of the premises No.293/37, 7th Main Road, 36th Cross, Jayanagar, 4th Block, measuring East to West 59 ft. and North to South 50 ft. with residential house therein, subject to life interest in favour of his wife Smt.Y.Susheelamma. Further more, this 20 O.S.No.2769/1990 defendant is said to have been allotted with half share in the premises bearing No.50, APMC Yard, Bengaluru-22, standing in the name of the firm M/s.G.R.Srikantappa & Co. Smt.Y.Susheelamma is said to have passed away on 14-1-1991 and therefore this defendant alone is said to have right, title and interest in respect of portion of the properties which is said to be bequeathed by late G.R.Srikantappa. The plaintiffs are said to be not entitled for the share in the items that is said to have been bequeathed in his favour by his grand father. This defendant was said to be not aware of the Will much earlier to November 2009 and that he is said to have come to know that he had filed the application for change of the Khatha and at that time, the plaintiffs 2(a) to (c) are said to have raised objections for the change of Khatha and is said to have know about the pendency of the suit. Hence has sought to decree the suit in terms of the counter claim and the suit of the plaintiffs to be decreed in part.
5. The defendants 1(a) to 1(c) have filed written statement, contending that, the defendants 2 and 2(a) are said to be not members of joint family of late Sri.G.R.Srikantappa. The 1st defendant is said to have passed away prior to filing of the written statement. The legal representative of 1st defendant 21 O.S.No.2769/1990 being daughters, are said to have been impleaded as defendants 1(a) to 1(c) and the plaintiff is said to have passed away leaving behind his wife-Latha Suresh-LR.1(a) and son Rudresh, daughter-
Harshitha-LR.1(b). Rudresh is said to be also necessary and proper party to the suit and that Rudresh is said to have been not brought on record, therefore suit is said to be bad for non-joinder of necessary and proper party. The 1st defendant is said to have got allotted item No.1 of schedule property from BDA and to have constructed house. There was said to be a partial partition on 23-11-1978 among the 1st defendant, plaintiff and defendants 1(a) to 1(c). Admittedly, suit schedule properties were said to be not included n the schedule of the said partition and that these properties were said to be enjoyed solely by the 1st defendant during his lifetime. These defendants, therefore are said to be entitled for equal share of items 1 and 2 of schedule properties along with legal representatives of deceased plaintiff, i.e., 1/4th share each in items 1 and 2 of schedule properties. Legal representatives of plaintiff, with malafide intention, are said to have been claiming half share in the schedule properties and they are said to be entitled only for equal share in the property. Hence, have sought for allotment of 1/4th share in items 1 and 2 of suit schedule properties.
22 O.S.No.2769/19906. In the additional written statement the 2nd defendant Susheelamma has contended that the firm, to have undergone number of changes and finally dissolved in 1957-58. The plaintiff is said to have no right or title in the assets of the firm. Therefore has sought for dismissal of the suit.
7. Written statement to the counter claim of the 2nd defendant, has been filed by the plaintiffs 2(b) and 2(c) under Order 8 Rule 6-A(3 ) of C.P.C admitting that Susheelamma W/o Srikantappa had passed away on 14.01.1991. The Will said to have been executed by Srikantappa bequeathing the portion of the properties in favour of the 2nd defendant as claimed in counter claim is said to be fabricated, concocted to suit his convenience. The Will is said to be not disclosed from 1984. At that time, the 2nd defendant was said to be aged only 9 years and when Susheelamma passed away the 2nd defendant was said to be 15 years. The father of the 2nd defendant ie., original plaintiff was said to be natural guardian of the 2nd defendant. At no point of time, the father of the 2nd defendant is said to have spoken about existence of alleged Will. Even Thotadappa who is one of the defendants from the beginning is said to have not stated about the Will.
23 O.S.No.2769/1990The alleged Will is said to be suspicious and highly doubtful and therefore, sought for the dismissal of the counter claim.
The written statement to the counter claim filed by plaintiff No.2(b) and 2(c) has been adopted by Plaintiff No.2(c) vide memo dated: 17.08.2011.
8. My Predecessors-in-Office have framed the following Issues:
1. Whether the plaintiff proves that the suit properties are the joint family properties as pleaded?
2. Whether the plaintiff proves that the partition between the defendants is against the terms of partnership and is detriment to the firms business is invalid?
3. Whether the plaintiff proves that he is in joint possession of the suit properties with the first defendant as pleaded?
4. Whether the plaintiff is entitle to any share in the suit properties?
5. Whether the plaintiff is entitled for the relief of Permanent Injunction prayed?
Additional Issue framed on 13-2-2004:
1. Whether the suit is properly valued and court fee paid is sufficient?24 O.S.No.2769/1990
Additional Issues framed on 18-7-2002:
2. Whether the plaintiff proves that the deceased 2nd defendant had no right in the assets of the partnership firm?
3. Whether the plaintiff proves that they released the partnership deed as alleged in the amended plaint and the alleged document is got up by fraud, undue influence and coercion by the defendants?
4. What Decree or Order?
Additional Issues framed on 3-8-2009:
5. Whether the defendants prove that the suit is bad for non-joinder of son of plaintiff?
6. Whether defendants 1(a) and 1(c) prove that they are entitled for equal share in the schedule properties?
Additional Issues framed on 24-9-2011:
7. Whether the defendant No.2 proves that his grand father G.R.Srikantappa had bequeathed his premises bearing th th No.293/37, 7 Main, 36 Cross, Jayanagar IV Block, measuring East to West 59 feet, North to South 50 feet with residential house subject to life interest in favour of his wife Smt.Y.Susheelamma and half share in premises No.50, APMC Yard, Yeshwanthapur, Bangalore, through a registered Will dated:19-8-1984?
8. Whether the defendant No.2 is entitled for the relief of counter claim as prayed for?25 O.S.No.2769/1990
Additional Issue framed on 11-7-2017:
9. Do the defendants prove to be entitled for the counter claim as sought for?
9. In order to prove the case, the deceased plaintiff has got examined himself as P.W.1, plaintiff No.2(b) as P.W.2, plaintiff No.2(c) as P.W.3, plaintiff No.1(b) as P.W.4 and got marked Exs.P1 to P23. The Power of Attorney Holder of defendant No.2(a) is examined as D.W.1, defendant No.2 as D.W.2 and got marked Exs.D1 to D40. Court Commissioner is examined as C.W.1 and got marked Exs.D35(d) to
(f) marked.
10. Heard arguments of Learned Counsel for both the parties. Written arguments are filed
11. The findings on the above Issues are as under:
Issue No.1 - in the Negative, Issue No.2 - in the Negative, Issue No.3 - in the Negative, Issue No.4 - in the Negative, Issue No.5 - in the Negative, Addl. Issue No.1 - in the Affirmative, Addl. Issue No.2 - in the Negative, Addl. Issue No.3 - in the Negative, Addl. Issue No.5 - in the Negative, Addl. Issue No.6 - in the Negative. Addl. Issue No.7- in the Affirmative, 26 O.S.No.2769/1990 Addl. Issue No.8- in the Affirmative, Addl. Issue No.9 - in the Negative, Addl. Issue No.4 - as per Final Order, for the following:
Reasons
12. Issue Nos.1 to 3, Additional Issue Nos.
2 and 3, dated 18-7-2002:
These Issues pertain to the nature of the suit properties, nature of possession and that the Partnership Deed to have been got up by fraud, undue influence and coercion by the defendants. These Issues are interlinked hence they are discussed and answered together in order to avoid repetition.
The description of suit property, as per the plaint is as follows:
Item No.1:
Premises bearing No.293/37, Jayanagar 4th Block, 7th Main, 35th Division of the Corporation of the City of Bengaluru, bounded on:
East by : Property belonging to Sri.Shivanna, West by : 7th Main Road, North by : Property belonging to T.C.Basavaraj South by : 35th Cross Including the garage with a construction of about 20 squares RCC roofing..27 O.S.No.2769/1990
Item No.2:
Premises bearing No.50/5, II Main, 3rd Road, R.M.C.Yard, Division No.8, Bengaluru, measuring East to West (123' + 136.6')/2, and North to South 35' with the building constructed thereon the area marked as 'JKLIJ and 'MNEFN' alleged shown at the portion of the first defendant and the area 'LGHIL' and 'CDENC" allegedly shown to be the area of the 2nd defendant. Boundaries for the entire property are:
East by : 3rd Cross Road, West by : Property belonging to Raghu Venkatesan, North by : Property RMC bearing No.51, of G.S.Rudrappa & sons.
South by : RMC No.49 of B.Ramalingappa's property.
In the cause title, the ranking of parties are over lapping and same has continued inspite of opportunity being given to correct the same. Hence, names of parties with ranking are discussed in the course of the Judgment.
The relationship between the parties is that the plaintiff G.S.Suresh Kumar to be son of defendant No.1. During the pendency of the suit, plaintiff, defendant No.1 and defendant No.2 have passed away. A Partnership dated 8-11-1958 styled 28 O.S.No.2769/1990 as G.R.Srikantappa and Co. was brought into existence by the defendant No.1-Srikantappa, along with defendant No.2. Thotadappa The widow and children of deceased plaintiff, daughter of deceased defendant No.1-Srikantappa and widow of defendant No.2-Thotadappa have been brought on record.
The family of defendant No.1-Srikantappa are Mundy Merchants and commission agents as Traders by profession. They are in the sale of potatos, onions and cloves and is ancestral business which was first started by grand father of plaintiff in one of the shops of New Taragupet of the Joint Family and later converted as a partnership business with stranger G.R.Byrappa under the name and style "Byrappa Rudrappa'. This Firm was dissolved in 1957-58 and defendant No.1 continued the business of the Firm with the induction of deceased defendant No.2 as a working partner. It was under the name and style G.R.Srikantappa & Co.
There was a suit for Partition between the sons of the brother of defendant No.1 and his brothers in O.S.No.162/64. The item No.1 is said to be purchased out of the income of the family business. Ex.P1 is the certified copy of the Judgment in O.S.No.162/1964. It was a suit filed by Rajashekhar and another as natural guardian against deceased defendant No.1 and 11 others seeking for Partition 29 O.S.No.2769/1990 and Separate Possession. The suit was decreed and R.F.As.175, 178/1973 and 32/1974 were preferred. The certified copies of Judgment is Ex.P22, wherein the matter was compromised on 25-7-1977. The Schedule II marked therein has been allotted to defendant No.1. The death certificate of defendant No.1 is Ex.P20 which shows that he passed away on 11-1-1991. No documents produced about the details of the property in the earlier litigation.
13. In the oral evidence, P.W.1-Sureshkumar has stated that in that suit, his father to be given properties viz., property No.60 of Mysore Road, 30 x 40 site of Sultanpet and a shop of Old Tharagupet.
He has stated as follows:
"It is true that the property which fell to the share of my father was subsequently divided between my sisters and myself."
D.W.2-Rudresh, who is the son of plaintiff, has stated not to know that the matter in O.S.No.162/1964 that was compromised, excluded the present suit property.
To show the commencement of the business, the Form A, of the Firm M/s.G.R.Byrappa, Rudrappa, dated 25-7-1938 is produced as Ex.P1. The name of G.R.Byrappa, G.Rudrappa, G.R.Veerappa, defendant No.1, G.R.Sreekantappa, G.R.Shanmukhappa and 30 O.S.No.2769/1990 G.R.Chandrashekharappa appear as partners, marked as Ex.P1(b). The commencement date is 15-5-1918 marked as Ex.P1(a). The grand father Rudrappa passed away in 1966 and his certificate of death is Ex.P2. After demise of grand father Rudrappa, the business continued as per the Extract- Ex.P3 which shows the name of G.R.Byrappa and G.Rudrappa as Partners. The senior uncle G.R.Veerappa had passed away and the Succession Certificate is Ex.P4 issued by Court in Misc. Case No.211/1946-47 and is dated 4-3-1947 and it is pertaining to the Securities containing of the shares at various Company/Bank. It is issued in the name of G.R.Veerappa s/o.Rudrappa. The uncle G.R.Shanmukhappa of P.W.1 and defendant No.1 have executed registered GPA as per Ex.P5 in favour of their brother Veerappa on 16-7-1948. There is no reference of any specific property in Ex.P5. Registered G.P.A. Ex.P6 dated 6-4-1953 is executed by G.R.Shanmukhappa in favour of elder brother defendant No.1 for and on behalf of the Firm G.R.Byrappa Rudrappa and Co., which was dissolved in 1958.
14. Subsequently, Partnership in the name G.R.Srikantappa & Co. Commenced and was registered on 17-12-1958. Ex.P8 is the Certificate of Registration. Ex.P7 is the copy of that Partnership 31 O.S.No.2769/1990 Deed dated 8-11-1958 between G.S.Srikantappa and defendant No.1 of the Firm G.R.Sreekantappa and Co. It states the second party, viz. Defendant No.1- Thotadappa to be only working partner. The important recital is:
"... The assets and liabilities and good will of the partnership shall belong to the first party only. In the event of the second party giving notie of his intention to leave the partnership he shall not only be entitled to his share of the assets but not to the good will. If the partner retires before 30th day of June but he shall be liable for all losses so incurred. Partners shall devote their whole time and personal attention to the conduct and management of the business of partnership and carry on the business of partnership firm diligently and to the greatest commen... tage of the firm and with cordial cooperation and .. consultation.
12. The partners shall be just and fair to each other and render in the accounts and full information of the things affecting the partnership firm with other partners pay his separate private debts and indemnify the other partners or partnership assets again .. proceedings claims and demands in respect there of. Partners shall not without the consent or concurrence of the other partner i) carry on any business other than the firm of which he is a partner ii) Assign or mortgage his share or interest in the partnership
iii) Compound relinquish or discharge any debt 32 O.S.No.2769/1990 which shall be due or owing to partnership firm without receiving full amount. .. "
Ex.P9 is the endorsement dated 29-1-1966 issued by the Regulated Market Committee, Office of the Secretary, Bangalore, addressed to Firm G.R.Srikantappa and Co. to the effect that said Firm to be allotted site No.50 measuring in all 515 1/9 syds. which appears to be item No.2 of suit property. Generally notice is issued to all the licensed merchants about time for payment of value of stocks to have been extended till 25-7-1965. This Ex.P10 dated 4-5-1966. Another notice issued to all the merchants is Ex.P11 dated 14-9-1966 stating to execute the Muchalika agreeing to conditions of the allotment of sites.
Particularly, Memo dated 21-11-1966 is marked as per Ex.P12 about allotment of the Item No.2 to G.R.Srikantappa and Co. and the description is Site No.50 measuring North-South 35 feet, East-West (123 + 130½ feet)/ 2 feet and bounded on:
East by Road, West by Site No.41, North Site Nos.46 to 49 and South by Site No.51.
Ex.P13 is the Agreement between defendant No.1, defendant No.2 and plaintiff, dated 8-7-1976 and relevant clause is 6, which reads as follows:33 O.S.No.2769/1990
"THE NET PROFIT & LOSS so determined shall be divided among the partners as follows:
1. G.R.Srikantappa 37½ %
2. G.Thotadappa 37½ %
3. G.S.Sureshkumar 25%"
The plaintiff is recited to have attested Ex.P14 as a consenting witness. The Plan attached to Ex.P13 is Ex.P15. Ex.P16 is the registered Partition Deed dated 27-3-1986 between defendant No.1 and defendant No.2. The consenting witness is plaintiff and its plan is Ex.P17. Ex.P18 is Agreement of lease dated 12-11-1984 between defendant No.1 and defendant No.2 which is prior to Ex.P16.
Further in the oral evidence, P.W.1 has stated that the investment for the partnership business to have been made out of the joint family income. Defendant No.2 is said to have not invested any amount and that no amount was paid by defendant No.2 towards the consideration of RMC Yard site. Defendant No.1 is said to have paid the consideration after the allotment of site in RMC Yard out of the firm account.
P.W.1 has specifically stated not to know the contents of Exs.P13 to P17 prior to affixing his signatures. He was said to be under the care of his father and defendant No.2 and therefore had to affix signature at their instance.
34 O.S.No.2769/199015. P.W.1 has stated that the partnership business was started with contributions made by the members of the family. Thotadappa is said to have not invested any amount towards partnership business. He did not have any avocation prior to becoming a partner of G.R.Srikantappa and Company. Further that, he never knew that he would be inducted as a partner. While at the shop, he was said to be not carry on administrative activities and would weigh the materials and deliver them to customers. P.W.1 has admitted that the firm was for the first time formed by his father and defendant No.2. According to him, Rudrappa and Co. was started in 1956-57 and his uncle Veerappa was a partner. The brothers of Veerappa are said to have constituted the funds to do the business. Ex.P6 G.P.A. was said to be given for running the business of "G.Bayyappa and Rudrappa". He was told that certain properties to be allotted to his share as per 1978 partition. The shop No.182, New No.32, measuring 3.8 mts. X 6.4 mts. is said to be standing in his name, which is let out to tenants.
P.W.1 has admitted that, on 1-4-1994, Defendant No.2 had given a letter to his father indicating to retire from business activities of G.R.Srikantappa and Co. Further that after retirement of Thotadappa, h is father and P.W.1 35 O.S.No.2769/1990 continued to be the partners. After retirement in the beginning defendant No.2 is said to have started business in the name and style G.Thotadappa.
16. In the light of these admissions, it is necessary to look into the evidence adduced by the defendants in the above case. D.W.2 has stated that his grand father late defendant No.1 was allotted shop property No.8, B.B.Lane as per Partnership Deed dated 23-11-1978. Further has stated that the deceased Thotadappa (late defendant No.2) to have dominating influence over deceased defendant No.1 and that he had got up the deed of partnership between himself and late defendant No.1. But the recitals of the partnership deed dated 8-11-1958, show that late defendant No.2 was only a working partner with no profits or assets and liabilities. D.W.1 has also stated the same in his evidence. D.W.1 has stated not to have given any instructions in the above case by stating as follows:
" I have not given any instructions in respect of O.S.No.2769/90."
Indeed, according to him, his grand father, father and late defendant No.2 were the partners of firm, but at the same time he has stated as follows:
36 O.S.No.2769/1990" It is not true to suggest that it is a joint family business. It is true that I was not a partner of G.R.Sreekantappa and Company Partnership Firm."
"If it is suggested that G.R.Sreekantappa and Company is a joint family business, I say it is the business of my grand father, my father and myself."
" .... It is true my grand father was not havind any other avocation other than being a partner in G.R.Sreekantappa and Company."
According to D.W.1, the Item No.1 property was purchased by grand father from B.D.A. and item No.2 property was allotted in favour of G.R.Sreekantappa and Company.
D.W.1 is the G.P.A.Holder of Smt.Susheelamma w/o.Thotadappa. That G.P.A. is marked as Ex.D1 dated 31-3-2003. As per the evidence of D.W.1, father of defendant No.2 Channa Somanna was said to be doing Mundi business in the name and style Channasomanna and Sons. After acquiring knowledge from the father's business, defendant No.1 by releasing all his rights over father's business as per Release Deed Ex.D2 is said to have entered into a partnership business under a partnership deed dated 8-11-1958. Ex.D2 is the certified copy and it is dated 15-12-1958 registered document. The 37 O.S.No.2769/1990 wholesale merchant in Potato and Onion was run under style 'G.R.Srikantappa and Co.' and was carried on at No.B-60, II Main, New Tharagupet, which is not suit property. This premises was said to be ancestral property of defendant No.1 and hence it was stated in the partnership deed that defendant No.2 not to have right in the said building.
Then the partners are said to have acquired vacant site from APMC which is item No.2 by borrowing sum of Rs.35,000/- from the Committee and from other funds for construction in the site. The plaintiff was said to be inducted as a partner by an agreement dated 9-7-1976 whereby it was said to be made clear that the plaintiff not to have any manner of right over the suit property.
17. The Defendant No.2 is said to have decided to retire from the partnership business and it was agreed between them to divide equally item No.2 property. That agreement dated 29-8-1984 which was in volition signed by plaintiff. As per that Agreement, southern front half portion fell to the share of the first defendant and the northern front half portion fell to the share of the defendant No.2. The rear portion was also divided accordingly. In terms of the request of the defendant No.2, the defendant No.1 is said to have leased his half portion to defendant No.2 vide lease deed dated 12-11-1984 38 O.S.No.2769/1990 on monthly rent of Rs.2,000/-. Thereafterwards, regular Deed of Partnership was executed between the defendants on 10-12-1982. G.R.Srikantappa and Co. did not carry on any business after the retirement of the defendant No.2. Defendant No.2 was doing business in the name and style of G.Thotadappa. The plaintiff is said to have joined the service of G.Thotadappa as an employee on monthly salary of Rs.1,000/- for some time. In terms of Agreement dated 20-9-1984, the defendants effected partition of item No.2 of suit property under the Deed of Partnership dated 27-3-1986. Thereafterwards, defendants submitted letter to the Revenue Authorities to bifurcate the Khatha and same was accorded by APMC Committee. Then the property was assigned Municipal Nos.5 and 5/3 to the portion of defendant No.1 and 5/2, 5/4 to defendant No.2. Accordingly, tax were paid and vide letter dated 16-3-1987 defendant No.1 had informed about making arrangements to construct bifurcating wall and deliver portion belonging to the first defendant which was acceded to and the bifurcating wall was put up from 1987, defendant No.2 was in exclusive possession of property.
D.W.1 has further stated that the said property was acquired out of partnership funds of G.R.Srikanappa and Co. which consisted of 39 O.S.No.2769/1990 defendant No.1 and defendant No.2 as partners. There was no family business under the name and style of G.R.Srikantappa and Co. and it was purely a partnership firm of defendant No.1 and defendant No.2. In fact, the defendant No.2 had declared as his property to the Income Tax Authorities, as per the Returns Exs.D3 to D18. There are from 1976-77 to 1996-1997 and individually in the name of defendant No.2.
After defendant No.2 had passed away, the Khatha had been secured in the name of his widow Smt.Susheelamma, as per Ex.D19, D20 of property No.5/2 and 5/4. They are issued by the then B.M.P. dated 19-9-1995 and 12-12-1996. There is an Endorsement in Ex.D20 that the entry is subject to result of above suit. The tax paid receipts from 1999-2000 to 2001 are as per Exs.D21 to Ex.D27. The income tax returns in the name of Smt.Susheelamma are Exs.D28 to Ex.D32 individually. Contrary statement made by the son of deceased plaintiff in O.S.No.1264/98. The certified copy of plaint is marked as Ex.D33. That son of deceased plaintiff is D.W.2 of this case.
The D.W.1 has admitted that the defendant No.2 was working partner of G.R.Srikantappa and Co. by saying as follows:
40 O.S.No.2769/1990"It is true that Thotadappa has joined as working partner of G.R.Sreekantappa and Co."
Of course, D.W.1 has admitted not to have documents to show that defendant No.2 had invested money in the business G.R.Srikantappa and Co. D.W.1 has admitted that as follows:
"It is true that Thotadappa and so also G.R.Srikantappa and Co. started business at first at B-60, 2nd Main Road, New Tharagupet, Bangalore. It is true that a space was provided for traders doing business at Tharagupet at RMC Yard and so also G.R.Srikantappa and Co. was also provided a space at RMC Yard."
The D.W.1 has admitted further that, Thotadappa in 1984 had taken his share and retired from G.R.Srikantappa and Co. Further that, there was Lease Agreement between defendant No.1 and defendant No.2 in respect of item No.2 property by stating as follows:
"It is true that Thotadappa and Srikantappa had a lease agreement in respect of item No.2 of plaint schedule property and in that respect Rs.200/- was fixed as a rent."
18. In view of the suggestions admitted by D.W.1, D.W.2 as above noted, it is necessary to note he evidence of P.W.1. P.W.1 has stated to be 41 O.S.No.2769/1990 working at the shop of defendant No.2 which was said to be at 10/A and subsequently shifted to item No.2 of suit property. Defendant No.2 is said to have asked him to look after the business, as he was promised to be given a share.
The P.W.1, though has stated not to know about Application to be filed by his father and defendant No.2 to treat each of them to be entitled for 50% share. But at the same time, he has stated as follows:
"During 1988 when a wall was erected, I came to know that my father had title in respect of 50% of RMC Yard property. It is true, Roopashri Traders is running business as a tenant of 50% share which had fallen to the share of Thotadappa. I am running business in the portion which had fallen to the share of my father. The said business is run under the name and style of Shri.G.R.Srikantappa and Co."
This business is said to be from 1988. His wife was said to be taken as a partner during 1988.
The P.W.2 who is plaintiff No.2(b) is sister of P.W.1 and daughter of defendant No.1, has stated to be transposed as plaintiffs in view of objections filed to the Memo seeking withdrawal of suit. Thereafterwards, I.A. was filed whereby the brother G.S.Rudresh was impleaded as defendant No.2. This 42 O.S.No.2769/1990 defendant No.2 has sought for counter claim based on Will, which is vehemently denied by P.W.2. P.W.2 has stated:
"9. I submit that Item No.1 of suit schedule property was allotted to my father by from Bangalore Development Authority (for short BDA) and he constructed a house thereon. My father and all of his children were enjoying the said property as the members of the joint family."
This evidence is in consonance with evidence of D.W.2. Further again stated that the suit properties to be acquired out of the joint family funds. There is no cross-examination of P.W.2.
19. Regarding P.W.3, the counsel for defendant No.3 has filed a Memo dated 21-9-2013 that evidence of P.W.3 Smt.G.S.Pramiladevi is as P.W.2 in the above suit and as D.W.3 in O.S.No. 1264/98. The entire affidavit for chief examination of P.W.3 has been to the effect that P.W.3 and her two sisters to be impleaded as defendants. But, subsequently all sisters have been transposed as plaintiffs, vide Order dated 17-7-2010 as plaintiffs 2(a) to (c). They are said to be the legal heirs entitled for 1/4th share in the suit schedule property. In the affidavit for chief examination, P.W.3 has 43 O.S.No.2769/1990 declined the Will contended by the defendant No.2 and ultimately sought for the dismissal of the case.
According to P.W.3, the Partition in 1978 was effected between her father, son and daughter. About the allotment of the properties to herself, sisters and brother, has stated as follows:
"It is not true to suggest that property bearing Shop No.10, Bangalore 17th Division, Chamarajpet B.B.Line, was given to my sister G.S.Ashadevi. It is true G.S.Chayadevi was given Shop No.9 property in the same row. It is true in the said partition, my brother Sureshkumar was allotted shop in Mysore Road, bearing No.339. It is true my father retained Shop No.12. It is true the persons who were allotted respective properties had their own right in those properties and others did not have any right over the properties."
The father is said to have sold their share of property. Indeed, during the lifetime of father, P.W.2 and her sisters have not filed suit for claiming right over the properties.
P.W.3 in the affidavit for chief examination and cross examination dated 3-3-2014 denied the Will. P.W.4 who is defendant No.1(b) and sister of defendant No.2, has stated about partition on 23-11-1978. Evidence of P.W.4 is not in consonance with P.W.3. According to P.W.4, grand father, after 44 O.S.No.2769/1990 separation from joint family, acquired item No.1 from BDA and that, it is self acquired property of grand father. The grand father is said to have conveyed half portion in item No.1 through the Settlement Deed dated 8-8-1994 as per Ex.P23. The plaintiffs 2(a) to (c) to be not entitled for share in item No.1. Hence, has sought to confirm half portion of item No.1 by Decree.
At the same time, P.W.4 has stated the averments of plaint in the suit to be true. It is noted that, though P.W.4 has claimed on the basis of Ex.P23, there is no averment of the same in plaint. This is an instance of variance of plaint and pleading.
Further P.W.4 has stated as follows:
"It is true that grand father Srikantappa was running joint family business. Witness volunteers that, the said business was not joint family business."
"..... The settlement deed dated 8-8-1984 and Ex.P23 have no binding effect."
20. The facts and circumstances of the case are such that, the original deceased plaintiff has averred that suit item No.1 and 2 are the joint family properties. After he passed away, his widow and daughter are plaintiff No.1(a) and (b). As noted above, plaintiff No.1(b) examined as P.W.4 has 45 O.S.No.2769/1990 stated that the business run by family was not joint family business. There are no averments about Ex.P23 in the plaint. The evidence of P.W.3, hence is not in consonance with plaint averments. No doubt, P.W.2 who is plaintiff No.2(b) has stated that, item No.1 and 2 to be acquired out of joint family funds. There is no iota of evidence in this regard. Commencing business as a partnership by itself cannot amount to joint family business. The business was commenced by defendant No.1 and defendant No.2 as Partners and not as their joint family business. The M/s.G.R.Byappa, Rudrappa Firm as per Ex.P1 commenced from 25-7-1938. As per Ex.P6, defendant No.1 was given the G.P.A. by his brother to conduct the said business. Ex.P6 is dated 6-4-1953. The dispute is in regard to the Firm G.R.Srikantappa and Co. Its Partnership Deed is dated 8-11-1958 as per Ex.P7. The Firm was started by defendant No.1 and defendant No.2. The duration of Firm is at will, subject to any one who desires to retire from the Firm. The recital pertaining to retirement is as follows:
"The duration of the partnership which commenced on the Nov. 1958 shall be at will subject however that if any partner desirous of retiring from the business before the stipulated period shall be at liberty to do so provided that notice of intimation to sever is served on the other partner in writing one month prior to 30th day of June of the year 46 O.S.No.2769/1990 In the event of the partnership being dissolved by the expiry of the period as aforesaid or of being dissolved by the mutual consent of both the partners. The assets and liabilities and good will of the partnership shall belong to the first party only. In the event of the second party giving notice of his intention to leave the partnership he shall not only be entitled to his share of the assets but not to the good will. If the partner retires before 30th day of June but he shall be liable for all losses so incurred."
Clause 16 reads as under:
"All disputes which shall arise between the partners herein concerning or touching the partnership affairs shall be referred to arbitration or two arbitrators to be appointed as partners whose decision shall be final if they agree in the case of differences the decision of the .... shall have been nominated by the arbitrations. "
There is no dispute in the oral evidence that defendant No.2 was working partner. Clause 19 is also relevant, which reads as follows:
"19. The second party has no claim of the pensional or .. of the first party brought from M/s.Gollahalli Rudrappa and Sons a Firm of the latters joint family assets."
Thus, under Clause 19, there is reference of the personal assets of the defendant No.1- Srikantappa that was brought from the joint family assets of defendant No.1. It means that there has 47 O.S.No.2769/1990 been only personal assets of defendant No.1 and not joint family assets. This clause shows that this Partnership Firm is not joint family Firm business. Evidence of P.W.2 and P.W.3 is not forthcoming in the averments of the plaint.
21. As per the oral evidence, D.W.2, P.W.1, defendant No.2 had given letter on 1-11-1984 to retire from Firm. Then, in terms of recitals of Firm, Ex.P7, the defendant No.2 is entitled for his share in the assets and not good will. The net profit was to be decided into two shares ½ each to defendant No.1 and defendant No.2.
The party who alleges fraud, undue influence and coercion has to prove the same. There is no evidence about these aspects before the Court. Clause 11 of Ex.P16 reads as follows:
"11) CONSENTING WITNESSES:
Shri.G.S.Sureshkumar, aged about 40 years, son of Shri.G.R.Srikantappa, hereby confirms and declares that the property divided hereunder belonged to first and second party absolutely and that though he was a partner of the firm of G.R.Srikantappa and Co., he has no right, title, interest, share therein and that he has consented to the Division made as per this deed;"48 O.S.No.2769/1990
The suit property described has been described as 'premises and not as family business. The business of Srikantappa and Co. was said to be carried on in the Item No.2 property. When the business Srikantappa and Co. itself is not joint family business, then how can there be joint possession of suit properties?
The defendant No.1 has passed away before filing the written statement. The Deed of Partition dated 27-3-1986 is Ex.P16 and it is a document reduced in writing about document of properties between the Partners defendant No.1 and defendant No.2. Clause V reads as follows:
"V. WHEREAS the Second Party hereto retired from the partnership firm of M/s.G.R.Srikantappa & Co., with effect from 1.11.1984, as per Deed of Retirement dated 10.12.1984; on such retirement, in terms of what had been agreed between the First Party and the Second Party, the First Schedule Property was divided between them by metes and bounds; however, as the terms thereof were not reduced to writing, the parties are now desirous of reducing the terms of division into writing;"
In the very same document-Ex.P16, it is stated that, item No.2 was allotted to the Firm G.R.Srikantappa and Co. by APMC vide Resolution dated 8-9-1966. It specifically states that defendant No.2 had retired from the Firm with effect from 49 O.S.No.2769/1990 1-1-1984 as per the Deed of Retirement dated 10-12-1984. Ex.P14 is dated 29-8-1984 prior to Ex.P16. Ex.P14 is an Agreement about dissolution of properties on dissolution of the said Firm. The Ex.P12 shows properties of item No.2 was given to the said Firm.
Ex.P14 is the Agreement dated 29-8-1984 between defendant No.1 and defendant No.2 which has reference of Ex.P13, Clause VII which reads as follows:
" NOW THIS AGREEMENT WITNESSES AS FOLLOWS:
I) The parties hereto hereby agree that on dissolution of the firm of "M/s.G.R.Srikantappa & Co." each of them will take the following portion of premises No.50/5, III Cross, RMC Yard, Bangalore:
1) Portions to be taken by First Party (Shri.G.R.Srikantappa):
(a) The southern half portion with mezzanine floor in the front Block (shown by the letters IJKLI); and
(b) The eastern Godown in the rear Blocks (shown by the letters NEFMN);
2) Portions to be taken by Second Party (Shri.G.Thotadappa):
(a) The Northern half portion with Mezzanine floor in the front Block (shown by the letters (GHILG); and 50 O.S.No.2769/1990
(b) The western portion in the rear Block (shown by the letters CDENC):"
Item No.1, admittedly, is self acquired property of defendant No.1, as per oral evidence above noted. There are specific clauses about the right of defendant No.2 over the assets of the Firm as per Ex.P7.
The case of the plaintiff has been about existence of joint family properties. But the original deceased plaintiff's averments in the plaint is not in consonance with the evidence of P.W.4.
There is further reconstitution of the said Firm, as per Ex.P13 dated 8-7-1976 between defendant No.1, defendant No.2 and son of defendant No.1 and Clause 12 reads as follows:
"13. DISPUTES if any arising out of this partnership shall be settled by arbitration as per the law of arbitration then in force."
The Counsel for the plaintiffs No.2(a) and 2(c) have filed a memo dated: 23.3.2013 that Susheeelamma passed away issueless and that there are no LRs; to be brought on record. Memo is filed by the counsel for defendant No.5 to 7 that the cross-examination made by the plaintiff to Rudresh is adopted by them. Similar Memo is also filed by 51 O.S.No.2769/1990 the counsel for the plaintiff No.2(a) to 2(c) adopting the cross-examination.
Thus, on dissolution of Firm, the defendant No.1 and defendant No.2 had only right over the goodwill and building and not the son of defendant No.1. Thus the clauses being specific, the nature of averments of plaintiff which is not in consonance between the original plaintiff and the subsequent plaintiffs, hence Issue Nos.1 to 3, Additional Issue Nos.2 and 3 are answered in the Negative.
22. Additional Issue Nos.7 and 8 dated 24-9-2011 and Additional Issue No.9 dated 11-7-2017:
The schedule to the written statement of the 2nd defendant Thotadappa Dated:5-4-1991 is as follows:
"All that portions of property bearing Municipal No.5/2 and 5/4 3rd cross(Earlier parts of RMC No.50, III Main), RMC Yard Division No.8, Bangalore, with the land and building as detailed below:-
Item No.1:- The front northern portion, shown by the letters LGHIL in the annexed plan measuring East to West: 76 ft (23.165 M) and North to South: 14'6"
(4.42M) in all 102.39 sq.M. and bounded:
52 O.S.No.2769/1990East by : 3rd Cross Road
West by : Common passage
North by : Private property and
South by : Portion 6 JKLIJ Portion)
belonging to G.R. Srikangappa;
Item No.2:- The rear Eastern portion, shown by the letters CDENC in the annexed plan measuring East to West:
22'6" (6.86 M) on the North and 20 ft (6.1M) on the southern side and North to South: 20 ft (8.84M) in all 57.28 Sq.M and bounded as follows:
East by:Portion (MNEFM Portion) belonging to G.R. Srikantappa;
West by : Property bearing No.41 North by : Private property and South by : Common passage, with an undivided half share in the following common areas.
Item No.(a): Passage on the southern side of premises No.50/5, 5/3 and 5/4, 3rd Cross, RMC Yard, Division No.8, Bangalore shown in the annexed plan by the letters ABCNMKJA measuring East to West: 133 ft. (37.49 M) and North the South: 6 ft. (1.828 M) and bounded as follows:
East by : 3rd Cross Road, West by : property bearing No.41, North by : portion of premises No.50/5, 5/3 and 5/4 and common passage, South by : Property bearing No.51.53 O.S.No.2769/1990
Item No.(b): Passage in premises No.50/5, 3rd Cross, (RMC No. bearing 59) RMC yard, Division No.8, Bengaluru, with the bath room, water closet and staircase shown by the letters MFGLKM measuring East to West:9'6" (2.98M) and North to South 29 ft. (8.84M) and bounded on:
East by : Front block portions of the premises bearing No.50/5 and 5/2, West by: Premises No.50/5, belonging to G.R.Srikantappa, North by : private property and South by : common passage in premises No.50/5.
Item No.(c): The balcony on the southern side of the first floor of the rear block bearing No.5/5 and 5/4, III Cross, FMC Yard, Division No.8, Bengaluru, measuring East to West 47 ft. (14.32 M) and North to South 32 ft. (0.91M) situated in the common passage described as Item (a) alone."
The 2nd defendant has contended that, his grand father G.R.Srikantappa had bequeathed a Will dated 19-8-1984 and hence have claimed to be entitled for counter claim. These Issues being interlinked, are discussed and answered together to avoid repetition.
Ex.P19 is the Notice dated 22-10-1984 issued by defendant No.2 to the defendant No.1 and plaintiff. The evidence of the scribe-C.W.1 of the Will has been recorded through Court Commissioner. That Will is marked as Ex.D35 dated 19-8-1984 and 54 O.S.No.2769/1990 signature of scribe as Ex.D35(c), signature of defendant No.1 and defendant No.2 as Ex.D35(a),
(d), (e) and (b), respectively. CW1 has identified the defendant No.1 who presented the Will and signature is Ex.D35(f). The entire evidence of CW1 has been preparing the Will as per the instruction of the Testator.
D.W.2 regarding Will has stated that his grand father had not taken up the counter claim about execution of the Will in his favour. The grand father is said to have passed away in 1991. The suggestion admitted by him has been:
"It is true that as per the Will Ex.D35, half of the property is given to Thotadappa."
This witness has stated not to have personally seen as to who signed the Will.
D.W.2 himself has admitted that his father, his mother or sister, in the above case not to have made pleading regarding the Will. Further that the first defendant had also not taken up counter claim regarding the Will. His family is admitted to be different from the family of defendant No.2. It was after the grand father passed away, the father had become the proprietor of M/s.G.R.Sreekantappa and 55 O.S.No.2769/1990 Co. Partnership business. Further has stated as follows:
"It is true that partnership firm ended up on death of my grand father."
The grand father passed away in 1991 and the 2nd defendant passed away in 1995. Defendant No.2 and his wife Susheelamma are said to have no issues and that they do not have any legal heirs. This is even evidence of D.W.1. The deceased plaintiff's son is made as defendant No.2 and evidenced as D.W.2. According to him, the properties allotted to deceased defendant No.1 in the compromise decree were divided between himself, deceased plaintiff and plaintiffs 2(a) to (c), the daughter of defendant No.1 as on 23-11-1978. The certified copy of the Will is said to be produced in connected case O.S.No.1264/1998 as Ex.P4. After that partition, the plaintiffs are said to be residing at their husband's place and they not to have right in the suit property. The Plaintiffs 1(a) and (b) are his mother and sister. The grand father, i.e., deceased defendant No.1, is said to have separated himself from the joint family. Thereafter, was said to be allotted site by BDA as per sale deed dated 21-5-1980.
The suit schedule properties are said to be self acquired properties of late defendant No.1 who during his lifetime executed Will dated 9-8-1984 56 O.S.No.2769/1990 bequeathing half portion of suit schedule A property in his favour, subject to life interest in favour of grand mother Susheelamma. Further had bequeathed ½ portion of suit schedule B properties in his favour. The grand mother is said to have passed away on 14-1-1991 and therefore, he alone is said to have right of title in respect of the portion of properties. That Will only is marked as Ex.D35.
The half portion of suit schedule A property was said to be allotted to plaintiff No.1(b) through settlement deed dated 8-8-1994.
Ex.D35 is a registered document of deceased defendant No.1 and as per the recitals, the earlier Will dated 27-11-1978 is revoked, that the joint family properties to have been already divided among the members vide registered document. The properties referred to in the Will are:
"3) The properties held by me are:
(a) Western portion of premises
No.293/37, 7 Main, 36 Cross, Jayanagar, 4th th th Block, Bangalore-11, measuring 50 ft. x 59 ft.
(b) Half share in Premises No.50, APMC Yard, Yeswanthpur, Bangalore-22. (The said site is held in the name of "G.R.Srikantappa & Co." a Partnership firm, in which myself, my son G.R.Suresh Kumar and Sri.G.Thotadappa are the partners. Though the profit sharing ratio of the three partners is 37.5%, 25% and 57 O.S.No.2769/1990 37.5% respectively, in so far as Premises No.50 is concerned, half a share is held by me and the other half share is held by Sri.G.Thotadappa) (My half share consists of the Southern half portion of the Front Block and the rear western Godown. My partner Sri.G.Thotadappa is entitled to Northern half Portion of the Front Block and the rear Eastern Godown. Both have equal rights in the common areas).
(c) A 37.5% share in the firm of M/s.G.R.Srikantappa & Co. carrying on business at No.50, APMC Yard, Bangalore-22;
(d) Some shares, Bank balances, a car and other miscellaneous movable items.
4) In hereby bequeath my properties in the following manner:-
(a) The main portion (Western Portion) of Premises No.293/37, 7th Main Road, 36th Cross, Jayanagar 4th Block, measuring East to West: 59 ft. and North to South: 50 ft.( and bounded on the East: portion of No.293/37, belonging to Miss.G.S.Harshita, West: 7th Main Road, North : 36th Cross Road and South:
Property belonging to Sri.T.C.Basavaraju) with the residential house therein shall be taken by my grand son G.S.Rudresh (son of G.S.Sureshkumar) subject to a life interest in favour of my wife Smt.Y.Susheelamma.
(b) My half share in Premises No.50, APMC Yard, Yeswanthpur, Bangalore-22, standing in the name of the firm of M/s.G.R.Srikanappa & Co., shall be taken by my grand son G.S.Rudresh.58 O.S.No.2769/1990
(c) Excluding my half share in Premises No.50, APMC Yard, Bangalore, bequeathed to G.S.Rudresh, My 37.5% share in the firm of M/s.G.R.Srikantappa & Co., shall be taken by my wife Smt.Y.Susheelamma.
(d) All other movables, Bank balances, shares, and Car, shall be taken by my wife Smt.Y.Susheelamma, for her use and benefit absolutely.
5) The estate duty and other outgoings in regard to my estate shall be borne and paid by my wife Smt.Y.Susheelamma.
6) I hereby appoint my friend Sri.G.Thotadappa to be the Executor of this Will."
That settlement deed is Ex.D34 and its typed copy is Ex.D34A. The Will and Ex.D35 is marked subject to proof. The certified copy of Ex.D35 is Ex.D40. Ex.D34A is a registered document between late defendant No.1 in favour of plaintiff 1(b) Harshita being minor, represented by mother plaintiff No.1(a). It pertains to suit item No.1 property. The properties transferred is described as:
"III. NOW THIS DEED OF SETTLEMENT WITNESSES AS FOLLOWS:
That in pursuance of the aforesaid intention of the Settlor to provide for the Beneficiary, the Settlor hereby transfers and conveys UNTO the Beneficiary. BY WAY OF SETELEMENT, the eastern portion of Premises bearing Municipal No.293/37, 7th Main Road 59 O.S.No.2769/1990 (36th Cross), Jayanagar 4th Block, Bangalore, measuring East to West :16 ft. and North to said to: 50 ft. more fully described in the schedule hereto with the land, building, all fittings, fixtures, compound wall, more fully described in the schedule written hereunder with all rights, easements and privileges appurtunant thereto to have and to hold the same, to the Beneficiary as absolute owner."
Covenants IV (c) to (f) are as follows:
"IV. THE SETTLOR HEREBY COVENANTS WITH THE BENEFICIARY AS FOLLOWS: (a) .. ... ... (b) .. ... ...
(c) In the event of the Beneficiary desiring to sell the schedule property, after she attains majority, she shall first offer the same to her brother Shri.G.S.Rudresh and only if he declines or neglects to purchase the same at the market price, she shall be entitled to sell the same to any one else.
(d) The parents of the Beneficiary shall have no power to alienate the schedule property, during the minority of the Beneficiary.
(e) Both the Settlor and the Beneficiary shall be entitled to have their sewer/water lines in the western strip of vacant land in the schedule property and the Beneficiary shall not interfere with or obstruct such underground lines.
(f) Both the Beneficiary and the person owning the western portion (Main House) of Premises No.294/37, shall be entitled to draw water from the well situated on the western boundary line of the portion hereby settled."
60 O.S.No.2769/1990To compare the signature of late defendant No.1, Affidavit is marked as Ex.D39 and signatures are Ex.D39(a) and (b). It is pertaining to applications for loan by late defendant No.1 submitted to Grain Merchants' Co-op.Bank Ltd., Pampamahakavi Road, Bangalore. Ex.D38 is the certified copy of letter submitted to Revenue Department by plaintiff No.1(b) for the entry of her name in the property in reference to the Will Ex.D35. There is entry of Ex.D34A in the Encumbrance Certificate as per Ex.D36 for the period 1-4-1984 to 31-3-2004, Nil Encumbrance Certificate is Ex.D37 for the period 1-4-2004 to 23-9-2011. D.W.2 has admitted the partition dated 27-3-1986, by stating as follows:
"It is true that there was a partition between my grand father and Thotadappa on 27-3-1986."
This partition deed dated 27-3-1988 has not been challenged.
His father is said to have not given the Will and he did not have the Will when the suit was filed. The grand father is said to have informed him about the Will.
He and his father were said to be residing cordially and his words are as follows:
61 O.S.No.2769/1990"It is true, I was residing with my father until his death and that we were in cordial terms."
D.W.2 has instituted O.S.No.1264/1998 independently and has stated that the settlement deed also to be not pleaded in the suit. His wordings are:
"24. My grand father had made a settlement deed in the name of my elder sister and therefore, application was given to BBMP as per Ex.D38. It is true that there is no pleading in respect of settlement deed given in favour of my elder sister in both the suits. I have good relations with my sisters. I have informed my sisters about pendency of these two cases and have secured that settlement deed. I do not know if my sisters are not included as party in my suit."
Once the defendant No.2 has retired from the Firm Srikantappa and Co. how was the firm continued?
In this regard, D.W.2 has stated that after the grand father had passed away, his father to have become the proprietor of M/s.G.R.Sreekantappa and Company Partnership business.
"It is true that partnership firm ended upon death of my grand father."62 O.S.No.2769/1990
D.W.2 has admitted the suggestion about partition between his grand father and defendant No.2 Thotadappa on 27-3-1986.
Item No.2 as per Ex.P12 is allotted by APMC to the G.R.Sreekantappa and Co. As per Ex.D35-Will, defendant No.1 had only half share allotted in the southern portion and defendant No.2 Thotadappa held 50% allotted in the northern portion. In respect of his 50%, defendant No.1 Srikantappa has bequeathed in favour of D.W.2 to son of deceased plaintiff. So, the item No.2 as described in the plaint is not the joint property as claimed by the original deceased plaintiff.
Ex.D35 clearly stated the properties that were held by grand father Srikantappa which is above noted. In respect of the properties held by Srikantappa, there is a Will-Ex.D35. Regarding item No.1 property, firstly there is no mention of its extent in the description of suit property. In Ex.D35, the western portion is bequeathed to G.S.Rudresh (D.W.2) the son of deceased plaintiff. Its measurement is shown as 59 ft. x 50 ft. The eastern boundary as above noted is shown as the portion of the very same property i.e., item No.1 belonging to Miss.G.S.Harshita, who is the sister of D.W.2. The western and southern boundary as in the plaint also appear in the Will Ex.D35.
63 O.S.No.2769/1990The Will Ex.D35 is supported by the evidence of C.W.1, who has also prepared the Will Ex.D35. C.W.1 has identified the signature of Testator Srikantappa at the time of registration of Will Ex.D35 and it is marked as Ex.D35(f). So the mandatory provision to prove the Will in terms of Section 68 of Indian Evidence Act read with Section 67 of the Indian Succession Act has been duly complied with.
Now, when the western portion of item No.1 is bequeathed to D.W.2 and the eastern portion of item No.1 belongs to plaintiff No.1(b) i.e., Harhitha- P.W.4, by virtue of Settlement Deed-Ex.D34, then, what is the property left in item No.1? In fact, P.W.4 merely has stated that grand father had conveyed half portion in item No.1 in her favour, through the settlement deed-Ex.D34. But, though P.W.4 is impleaded as plaintiff No.1(b), as above noted, there is no averment of the Ex.D34 in the plaint. Ex.D35 shows that the western portion is bequeathed to D.W.2. When the boundaries of portion bequeathed in item No.1 described in Ex.D35 are compared with the boundaries described of portion of item No.1 in Ex.D34, it means that, eastern portion is given to P.W.4 and western portion is bequeathed to D.W.2 of item No.1 property.
64 O.S.No.2769/1990In these Issues, the defendant No.2 is the D.W.2, who is the son of deceased plaintiff. The amendment of plaint is carried out with that ranking only. Originally defendant No.1 is G.R.Srikantappa and defendant No.2 is G.Thotadappa in the original plaint.
This D.W.2 has sought for counter claim. The written statement of legal representative of defendant No.1 (a) to (c) is for decreeing 1/4th share, but LR.Defendant No.1(a) to (c) have been transposed as plaintiff No.2(a) to (c). Widow of Sri.G.Thotadappa-T.N.Susheelamma, has filed as defendant No.2 and is shown as legal representative of defendant No.2 in the plaint and sought for dismissal of suit and Susheelamma has passed away on 14-1-1991. G.S.Rudresh s/o. deceased plaintiff is shown as defendant No.2 in the cause title. He has, in the written statement, sought to decree in terms of counter claim. But the counter claim does not specify the nature of the relief. It only states that this defendant alone to get title, right and interest of the portion of properties bequeathed in his favour. Memo dated 23-3-2013 is filed by counsel for plaintiff 2(a) to 2(c) that Susheelamma to have passed away on 9-12-2012 and there are no legal representatives of Susheelamma.
65 O.S.No.2769/1990In the Valuation Slip filed by counsel for defendant No.2, it is stated that the valuation fee for 1/3rd and court fee Rs.200/- paid under Section 35(2) of K.C.F. & S.V.Act. In view of Ex.D34 and Ex.D35, there are no properties left in the name of Sreekantappa (defendant No.1). Rejoinder/Written statement dated 17-8-2011 is filed by plaintiff No.2(a) to (c) to the counter claim of defendant No.2-G.S.Rudresh. The counter claim of defendant No.2 is filed on 19-7-2011. Thus, defendant No.2- G.S.Rudresh s/o. deceased plaintiff has been added/ impleaded as per Order dated 28-6-2011. The cause of action for counter claim is described to arise before the tendering of defence by the defendant. The fact remains that court fee is paid. No where in the counter claim, there is prayer for partition. The above matter is of 1990. The Will contended by defendant No.2 is said to be unaware of the Will much earlier to November 2009. The counter claim has nexus with the suit. When the nature of counter claim is considered, which has commenced from November 2009 and the counter claim is sought for in 2011, it means that, this defendant No.2 Rudresh is entitled for Ownership and Permanent Injunction of the properties bequeathed to him as per Ex.D35. Through out his counter claim, it is only stated that this defendant to only have title, right over the portion bequeathed to him. These reliefs are to be 66 O.S.No.2769/1990 granted in view of Order 2 Rule 2 C.P.C. moulding of relief. Though ownership is not sought for, the usage of words, title, right by this defendant, it is inferred that the relief of title and Permanent Injunction is being sought for. Merely because there is no exact relief prayed for in the counter claim, that by itself does not discard the counter claim. The party has paid court fee and suitable relief ought to be granted for a counter claim under Order 2 Rule 2 CPC. No other defendants have sought for counter claim. Hence, the Additional Issue Nos.7, 8 dated 24-9-2011 are answered in the Affidavit and Additional Issue No.9 dated 11-7-2017 is answered in the Negative.
23. Issue No.4 and Additional Issue No.6 dated 3-8-2009:
The plaintiff has claimed to have share in suit property and defendants 1(a) to (c) have contended to be entitled for equal share in the schedule properties. These Issues are inter-linked and answered together to avoid repetition.
The nature of suit schedule properties as joint family properties is not proved. Therefore the plaintiff cannot have any share in the suit properties. Defendant No.1(a) to defendant No.1(c) have been transposed as plaintiffs No.2(a) to (c), vide Order 67 O.S.No.2769/1990 dated 17-7-2010. In fact this is clear from the evidence of P.W.2, P.W.3. Due to the admitted facts noted above about the nature of suit schedule properties as per the oral evidence, nature of the documents discussed earlier, both these Issues are answered in the Negative.
24. Additional Issue No.1 dated 13-2-2004:
The deceased plaintiff has valued the suit under Section 35(2) of the K.C.F. & S.V.Act and Section 26(c) for Partition and Permanent Injunction, claiming joint possession. Further the plaintiff has sought for a Declaration that Document dated 27-3-1986, which is Partition Deed, is not binding on the plaintiff.
On 2-3-2010, Office has mAde a note about payment of court fee by plaintiff No.2(a) to (c) as defendants No.1(a) to (c) towards 1/4th share claimed by each of them. No other reliefs are sought for as per the amended plaint. Hence this Issue is answered in the Affirmative.
25. Issue No.5: The plaintiff has not been able to make out any possession over the suit property, as claimed.
68 O.S.No.2769/1990The nature of suit schedule properties being not joint family properties, the Permanent Injunction as sought for, cannot be granted. Hence, this Issue is answered in the Negative.
26. Additional Issue No. 5 dated 3-8-2009:
The son of the deceased plaintiff is impleaded as a party. In fact, as per the amendment carried out on the plaint, he is shown as defendant No.2- G.S.Rudresh s/o.G.S.Suresh Kumar. This Suresh Kumar is the plaintiff. Consequently, this Issue is answered in the Negative.
27. Additional Issue No. 4 : Due to the findings as above, the following:
ORDER Suit of the plaintiffs is hereby dismissed.
The Counter Claim of defendant No.2- G.S.Rudresh, is allowed as follows:-
The defendant No.2-G.S.Rudresh is hereby declared as the Owner of the properties as bequeathed in the Will- Ex.D35. Further the plaintiffs or their agents are hereby restrained by an Order of Permanent Injunction from interfering 69 O.S.No.2769/1990 with the possession of properties of defendant No.2, as per Ex.D35.
Ex.D35 shall form part and parcel of the Decree.
In the circumstances of the case, parties to bear their own costs.
Draw Decree accordingly.
(Dictated to the Judgment Writer, and also typed to my manuscript by the J.W., transcribed and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 19th day of April, 2018.) (VELA.D.K.) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.70 O.S.No.2769/1990
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1 G.S.Suresh Kumar P.W.2 G.S.Ashadevi P.W.3 G.S.Pramiladevi P.W.4 G.S.Harshitha
List of witnesses examined for defendants:
D.W.1 T.N.Paramashivaiah D.W.2 G.S.Rudresh
List of witnesses examined as Commissioner:
C.W.1 R.V.Raveendran List of documents exhibited for the plaintiffs:
Ex.P1 Registrar of Firms extract Dated:6-9-1940 Ex.P1(a) & (b)-Relevant entries showing date of commencement of business Ex.P2 Death Certificate of G.Rudrappa showing date of death as 22-7-1946 Ex.P3 Extract issued by Registrar of Firms Ex.P4 Succession Certificate issued in Misc No.211/46-47 on 4-3-1947, in the name of G.R.Veerappa Ex.P5 Power of Attorney executed by Srikantappa and Shanmukhappa in favour of Veerappa on 16-7-1948.
Ex.P6 Power of Attorney executed by Shanmukappa in favour of Srikantappa on 6-4-1953 71 O.S.No.2769/1990 Ex.P7 Copy of Partnership Deed dated:
8-11-1958 showing constitution of Firm on 8-11-1958 Ex.P8 Certificate of Registration of Firms issued on 17-4-1972 Ex.P9 Endorsement dated:29-1-1966 issued by the Secretary Regulated Market Committee to G.R.Srikantapppa & Co. Ex.P10 Endorsement dated:4-5-1966 issued to the Firm by the Secretary Regulated Market Committee Ex.P11 Notice dated:14-9-1966 issued to the Firm by the Secretary Regulated Market Committee Ex.P12 Possession Certificate dated: 21-11-1966 issued by Secretary Regulated Market Committee delivering possession of site No.50.
Ex.P13 Agreement dated:8-6-1976 between Srikantappa, Thotadappa and Suresh Kumar.
Ex.P14 Agreement dated:29-8-1984 between
Srikantappa and Thotadappa
Ex.P15 Plan attached to Ex.P13
Ex.P16 Certified copy of Partition Deed dated:
27-3-1986 between Srikantapppa and Thotadappa Ex.P17 Plan annexed to Ex.P16 Ex.P18 Agreement dated:12-11-1984 between Srikantappa and Thotadappa Ex.P19 Notice dated:22-10-1984 from Thotadappa to Srikantappa Ex.P20 Death Certificate of Srikantappa showing date of death as 11-1-1991.
Ex.P21 Certified copy of Judgment in O.S.No.162/1964 Ex.P22 Certified copy of Judgment dated:
25-7-1977 in RFA 175/73, 178/73 and 32/74 Ex.P23 Settlement Deed dated:8-8-1984 72 O.S.No.2769/1990 List of documents exhibited for defendants:
Ex.D1 Power of Attorney executed in favour of D.W.1 Ex.D2 Original Release deed of 1958 Exs.D3 Income Tax Returns submitted by to D18 Thotadappa as a partner in M/s.G.R.Srikantappa & Co.
Ex.D19 & D20 -Khatha Certificates Exs.D21 Tax paid receipts in respect of Property to D27 No.5/2 and 5/4 Exs.D28 to D32 - Income Tax declaration Ex.D33 Office copy of plaint of O.S.No.1264/1998 Ex.D34 certified copy of settlement deed dated 8-8-1984 Ex.D34A Typed copy Ex.D35 Original Will dated 9.8.1984 Ex.D35(a) - Signature of executant Ex.D35(b) - Signature of attesting witness Ex.D35(c) Signature of another witness Exs.D36 & D37 - Encumbrance Certificates Ex.D38 Letter submitted to BBMP for transferring khata Ex.D39 Affidavit of G.R.Sreekantappa Exs.D39(a) & D39(b) Signature of Sreekantappa Ex.D40 certified copy of the Will dated:9-8-1984 executed by G.R.Srikantappa.
List of documents exhibited for Commissioner:
Ex.D35(d) & (e)- Signatures of G.R.Srikantappa Ex.D35(f) - Signature of C.W.1 (VELA.D.K.) XXII Addl. City Civil & Sessions Judge, Bengaluru.73 O.S.No.2769/1990
19-4-2018 Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
Order Suit of the plaintiffs is hereby dismissed.
The Counter Claim of defendant No.2- G.S.Rudresh, is allowed as follows:-
The defendant No.2-G.S.Rudresh is hereby declared as the Owner of the properties as bequeathed in the Will-Ex.D35. Further the plaintiffs or their agents are hereby restrained by an Order of Permanent Injunction from interfering with the possession of properties of defendant No.2, as per Ex.D35.
Ex.D35 shall form part and parcel of the Decree.
In the circumstances of the case, parties to bear their own costs.
Draw Preliminary Decree accordingly.
XXII A.C.C. & S.J., Bengaluru.