Bangalore District Court
Dr Anirudh V vs Annaiah N M on 6 April, 2026
1
O.S.No. 1990/2018
KABC010292502023
Digitally
signed by
MOHAN
MOHAN PRABHU
PRABHU Date:
2026.04.08
15:10:54
+0530
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY: (CCH-56)
DATED THIS THE 6TH DAY OF APRIL 2026
PRESENT
SRI. MOHAN PRABHU, M.A., LL.M.
LV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
O.S. No. 1990 / 2018
PLAINTIFF/S 1. DR. ANIRUDH V.
S/O N.A. VENUGOPAL
AGED ABOUT 36 YEARS,
RESIDING AT 'NARAYANI' NO.18/21,
7TH CROSS, 9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGLURU - 560 011.
2. N.A. VENUGOPAL
S/O N.A. ANNAIAH
AGED ABOUT 65 YEARS,
RESIDING AT 'NARAYANI, No. 18/21,
7TH CROSS, 9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGALURU - 560 011.
(BY SRI.R.O.K. ADV.)
Versus
DEFENDANT/s 1. SRI. N.M. ANNAIAH
S/O N.A. MUNIVENTAKAPPA
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O.S.No. 1990/2018
SINCE DECEASED BY HIS LRs ON
RECORD.
2. SMT. N.A. JANAKI BAI
@ N.A.NARAYANAMMA,
W/O N.M. ANNAIAH
SINCE DECEASED BY HER LRs
ON RECORD.
3. SRI. N.A. VENUGOPAL,
S/O N.A. ANNAIAH,
AGED ABOUT 65 YEARS, RESIDING AT
'NARAYANI' NO.18/21,
7TH CROSS, 9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGLURU - 560 011.
4. SRI. N.A. RAVIGOPAL
S/O N.M. ANNAIAH
RESIDING AT NO.19, 7TH CROSS,
9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGALURU - 560 011.
(Transposed as plaintiff)
5. SMT.AMULYA SUMANTH
W/O SUMANTH DONTHI
D/O N.A. VENUGOPAL
RESIDING AT NO.41, MOUNTAIN ROAD,
1ST BLOCK, EAST JAYANAGAR,
BENGALURU - 560 011.
6. SRI.HARSHA RAVI GOPAL
S/O N.A.RAVIGOPAL
AGED ABOUT 35 YEARS,
RESIDING AT NO.19, 7TH CROSS,
9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGALURU - 560 011.
7. SRI.ADARSHA RAVIGOPAL
S/O N.A. RAVIGOPAL
AGED ABOUT 30 YEARS,
RESIDING AT NO.19, 7TH CROSS,
9TH MAIN, 2ND BLOCK,
JAYANAGAR, BENGALURU - 560 011.
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8. A.R.SHIVARAM
S/O A.G. RAMAIAH REDDY
AGED ABOUT 74 YEARS,
RESIDING AT No.670, 6TH CROSS,
3RD BLOCK, KORAMANGALA,
BENGALURU 560 034.
9. HEMA S. REDDY
D/O A.R.SHIVARAM
AGED ABOUT 50 YEARS,
RESIDING AT No.670, 6TH CROSS,
3RD BLOCK, KORAMANGALA,
BENGALURU 560 034.
10. ASHOK KUMAR
AGED ABOUT 49 YEARS,
S/O A. SHIVARAM
RESIDING AT No.670, 6TH CROSS,
3RD BLOCK, KORAMANGALA,
BENGALURU 560 034.
(D1 & 2 DEAD
D3 TRANSAPOSED AS PLAINTIFF No.2
D4, 6 & 7 by Sri.S.R. Adv.
D5 by Sri. V.C. Adv.
D8 TO 10 by Sri.J.R.M.S. ADV.)
Date of Institution of the 14.03.2018
suit
Nature of the Suit Plaintiffs suit for partition
and separate possession.
Counter claim fo the
defendant No.5 for partition
and separate possession.
Counter claim of defendant
No.4, 6 & 7 for partition and
separate possession and
declaration and permanent
injunction.
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O.S.No. 1990/2018
Date of commencement of 14.07.2025
recording of evidence
Date on which the 06.04.2026
judgment was pronounced
Duration Year/s Month/s Day/s
08 00 20
JUDGMENT
Initially plaintiff No.1 has filed this suit against the
defendant No.1 to 7 for the relief of partition and
separate possession of Plaint schedule properties seeking
1/6th share and also praying for directing and esquire
into mesne profits and direct the defendants to pay
1/6th share of mesne profit to the plaintiff.
The defendants No.1 to 3 who engaged their
counsel filed their written statement resisting the claim of
the plaintiff as well as counter claim filed by the
defendants No.4, 6 & 7.
The defendant No.5 engaged her counsel and filed
written statement with counter claim seeking partition in
all the plaint schedule properties as well as counter claim
schedule 1 to 14 properties.
The defendants No.4, 6 & 7 who engaged their
counsel filed the written statement with counter claim
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O.S.No. 1990/2018
and sought for the relief of declaration as well as for relief
of partition and Permanent Injunction.
In the present suit, the defendant No.3 transposed
himself as plaintiff No.2 as the IA filed by him came to be
allowed.
The defendant No.8 to 10 are impleaded during
pendency of the suit.
During the pendency of the suit as IA No.9 & 10
were allowed, the plaintiff added item No.19 to 42
properties.
Prayer of Defendant No.4, 6 and 7 in written
statement.
a) for a declaration that the alleged registered Gift
Deed dated 12.06.2015, vide document No. YAN-1-
01425-2015-16, CD. NO. YAND 598, Book No. 1 in the
office of the Senior Sub Registrar Yalahanka, Bangalore
and the subsequent rectification deed dated 15.06.2016
vide documents No. YAN-1-01692-2016-17 CD No. YAND
629, Book No. 1, in the office of the Senior Sub-Registrar
Yalahanka, Bangalore and the subsequent registered
rectification deed dated 07.04.2017 vide documents No.
YAN-1-00258-2018-19, CD No. YAND660, in the office of
the Senior sub Registrar Yalahanka, Bangalore executed
by the 1st defendant in favour of the plaintiff in relation to
item No.4 of the written statement schedule property are
not binding on them and
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O.S.No. 1990/2018
b) for a declaration that the alleged registered Gift
Deed dated 05.03.2004, vide document No. JNR6785-
2003-04 before Sub Registered, Jayanagara Bangalore
executed by the 1st defendant in favour of the 3rd
defendant in relation to item No.2 of the written
statement schedule property is not binding on them and
c) for a declaration that the alleged registered gift
deed executed by the 1st defendant infavour of the 3 rd
defendant in relation to item No.3 of the written
statement schedule property is not binding on them and
d) for a declaration that the alleged registered gift
deed dated 05.04.2012, vide document No. CMP-1-
00071-2012-13, CD No. CMPD45, Book No1 in the office
of the Senior Sub Registered Basavanagudi
(Chamarajapet) Bangalore is not binding on them; and
e) for a partition and separate possession of Item Nos.
1 to 8 of the counter claim, both Movable and immovable
properties and allot half a share in each one of the said
items of the aforesaid properties to the 4th defendant and
f) for permanent injunction restraining the plaintiff
and defendant Nos 3 and 5 from either alienating or
encumbrance the respective items of the written
statement schedule properties by them and
g) for a permanent injunction restraining the plaintiff
from proceedings further with the construction of item
No.4 of the written statement schedule property and
h) for a permanent injunction restraining the 3rd
defendant from either alienating or encumbrance or
entering into either MOU or JDA with third parties in
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O.S.No. 1990/2018
relation to item No. 1, 2 and 3 of the written statement
schedule properties and
I) for permanent injunction restraining the 5 th
defendant from either alienating or encumbrance or
mortgage or lease item No.5 of the written statement
schedule property and
j) to hold an enquiry with regard to mense profits
from the date of filing of the suit till such time the
defendant No.4 is delivered his 1/3rd share in respect of
the written statement schedule properties.
k) for a declaration that the alleged Registered Gift
Deed dated 12.06.2019, vide Document No. PRN-1-
01824-2019-20, Stored in CD No. RPND 327, Book I, in
the office of the Sub Registrar, Jayanagar, Bengaluru
Executed by the 3rd defendant in favour of the plaintiff,
Gifting away item No.1 of the written Statement / Counter
Claim schedule property is not binding on these
defendants and as such set aside the same; and
l) for a declaration that the deliberate encumbrance
made by the plaintiff in favour of State Bank of India,
SMEC Banasawadi, Bengaluru by applying for and
availing the huge loan amount in a sum of
Rs.2,50,00,000/- by deposit of title deeds of item No.4 of
the written statement/ counter claim schedule property is
not binding on these defendants and as such direct the
plaintiff to free the said item of property from such
encumbrance and further direct the plaintiff to discharge
the entire loan availed by him along with up to date
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O.S.No. 1990/2018
interest personally without reference to the said item of
property and
m) for a declaration that the alleged Registered Will,
allegedly executed by the 3 rd defendant bequeathing
item No.2 of the Written Statement/ Counter claim
schedule property is not binding on these defendants and
as such set-aside the same.
PLAINT SCHEDULE
1. All the piece and parcel of the property situate at
No. 19 and 20, 7th cross, 2nd Block, Jayanagar, Bangalore,
measuring to an extent of 5200 square feet (80X65) and
bound on the
East by : Property No. 18
West by : Private property
North by : 7th Cross and
South : Private property
by
(Note: Decree on admission already drawn).
2. All the piece and parcel of the property situate at
No.9, 4th cross, Madiwala, Bangalore, measuring to an
extent of 9000 square feet and bound on the
East by : Private property
West by : Private property
North by : Private property
South : Road.
by
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O.S.No. 1990/2018
(Note: Decree on admission already drawn).
3. Al the piece and parcel of the property situate at
No. 18/14 and 18/15, 1 ‘B’ Cross, Madiwala, Bangalore,
measuring to an extent of 1980 square feet (33 X60) and
bound on the
East by : Private property
West by : Private property
North by : Road and
South by : Private property
(Note: Decree on admission already drawn).
4. All the piece and parcel of the property situate at
No.2 Hosur Road, Madiwala, Bangalore, measuring to an
extent of 1650 square feet (30X55) and bound on the
East by : Private property
West by : Hosur Road
North by : Private property and
South : Private property
by
(Note: Decree on admission already drawn).
5. All the piece and parcel of the property situate at
No.77 Hosur Road, Madiwala, Bangalore, measuring to an
extent of 40,000 square feet and bound on the
East by : Road
West by : Road
North : Property belonging to Nagaraj and
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O.S.No. 1990/2018
by
South : Property belonging to Vishwanth Modaliar
by
(Note: Decree on admission already drawn).
6. All the piece and parcel of the property situate at
Bommanahalli, Converted land with Industrial sheds,
Bangalore measuring to an extent of 1 acre 20 guntas
excluding 1 Complex situated in an area measuring about
4800 square feet (Wherein a private person has built a
complex by name ‘Balaji Complex’ after purchasing the
said extent from the joint family) and about on the
East by : Private property
West by : Road leading to Grave yard
North by : Grave yard and
South : Private property
by
7. All the piece and parcel of the property situate at
Rupena Agrahara, Bangalore, Vacant land measuring
nearly 22 guntas or approximately 25,000 square feet
and bound on the
East by : Road
West by : Raja Kaluve
North by : Private property
South : Private property
by
(Note: Decree on admission already drawn).
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8. All the piece and parcel of the property situate at
Doddabyalakhane, 3 sites measuring ’30X42′ each and
bound on the
East by : Private Property
West by : Private property
North : Road and
by
South : Road
by
(Note: Decree on admission already drawn).
9. All the piece and parcel of the property situate at
BTM IV Stage, Banglore measuring to an extant of 2400
square feet (40’X60″) and bound on the
East by : Private property
West by : Road
North : Lane and
by
South : Road
by
10. All the piece and parcel of the property situate No.
14 G.K. Temple Street, Chickpet, Bangalore, measuring
to an exent of 2680 square feet and bound on the
East by : Private property
West by : G.K. Temple Street
North by : Lane and
South by : Road
(Note: Decree on admission already drawn).
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11. All the piece and parcel of the property situate at
No.15, 16 & 17, 1st Cross, Padryanapura, Bangalore,
measuring to an extent of 4500 square feet (50′ X92′)
and bound on the
East by : Road
West by : Conservancy Lane (Marginal land)
North by : Private property and
South by : Road
(Note: Decree on admission already drawn).
12. All the piece and parcel of the property situate at
No.12, 1st Cross, Padrayanapura, Bangalore, measuring
to an extant of 1500 square feet (30’X50′) and bound on
the
East by : Road
West by : Private Property
North by : Private property and
South : Private property
by
(Note: Decree on admission already drawn).
13. All the piece and parcel of the property situate at
No. 12/1, Padrayanapura, Emmaar Production Building,
measuring to and extent of 1500 square feet and bound
on the
East by : Private Property
West : Road
by
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O.S.No. 1990/2018
North : Private property and
by
South : Private property
by
(Note: Decree on admission already drawn).
14. All the piece and parcel of the property situate at
No.10, 1st ‘C’ Cross, 1st Main, Sudhamnagar, measuring to
an extent of 1260 square feet (30’X42′) and bound an the
East by : Road
West by : Private property
North by : Road and
South : Private property
by
(Note: Decree on admission already drawn).
15. All the piece and parcel of the property situate at
North park Road, Sheshdripuram, measuring to an extent
of 1500 square feet (30’X52′) and bound on the
East by : Private Property
West by : Park Road
North by : Private property and
South by : Private property
(Note: Decree on admission already drawn).
16. All the piece and parcel of the property situate at
Raghavendra layout, Yeswanthpur, measuring to an
extent of 2400 square feet (40’X60′).
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O.S.No. 1990/2018
(Note: Decree on admission already drawn).
17. All the piece and parcel of the property situate at
Site No. 6, No. 386/2, Dasamala Village, Hayathnagar,
Revenue Mandal, Ranga Reddy District, Tellangana,
measuring 4000 square feet (50’X80′)
18. 50% at shares together standing in the name of
defendants No.1, 3 & 4 ( in equal percentages) in the
running business of M/s A V Exhibitors, which is in
possession and management f the two theatres in
Bangalore namely Sampige and Savitha as per the
partnership deed dated 01.04.1992.
(Note: Decree on admission already drawn).
19. All the piece and parcel of the property in Sy.No. 37
measuring to an extent of 0-37 guntas (including 07
guntas of Karab) situate at Irigenahalli Village,
Channarayapatna Hobli, Devanahalli Taluk, Bangalore
Rural District bound on the
East by : Boundary of Baluvanahalli Road
West by : Property of Sri. N.M. Annaiah Park Road
North by : Property of Sri. N.M. Ramarathnam and
South by : Government Road
20. All the piece and parcel of the property in vacant
site Katha No. 122/114/56 measuring to an extent of
4000 Sq.ft. Measuring East to West by 50ft & North to
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South by 80 ft., situate at 1st Ward J.C. Extension, 1st
Division, Vijayapura Town, Devanahalli Taluk, Bengaluru
Rural District bound on
East by : Anasuyamma’s Property
West by : Annapoornamma’s Property
North by : Conservancy
South by : Municipal Road
21. All the piece and parcel of the property in Sy.No.40
measuring to an extant of 2 acres (including 1 guntas of
karab) situate at Irigenahalli Village, Channarayapatna
Hobli, Devanahalli Taluk, Bengaluru Rural District bound
on the
East by : Sri. N.G. Loknath’s Property
West by : Sy.No. 41
North by : Boundary or Dharmapura
South by : Sri. N.G. Loknath’s Property
22. All the piece and parcel of the property in Sy.No.41
measuring to an extant of 2 acres situate at Irigenahalli
Village, Channarayapatna Hobli, Devanahalli Taluk,
Bengaluru Rural District bound on the
East by : Sy.No. 40
West by : Boundary or Dharmapura
North by : Boundary or Dharmapura
South by : Sri. N.G. Loknath’s Property
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23. All the piece and parcel of the property in Sy.No.149
measuring to an extant of 7 acres 06 guntas (including
04 guntas of karab) situate at Baluvanahalli Village,
Jangamkote Hobli,Shidlegatta Taluk, Chickabalapur
District bound on the
East by : Sy. No. 142
West by : Boundary or Dharmapura
North by : Sy.No.150
South by : Sy.No.50/1, 156 & 166
24. All the piece and parcel of the property in Sy.No.150
measuring to an extant of 5 acres 38 guntas (including
04 guntas of karab) situate at Baluvanahalli Village,
Jangamakote Hobli, Shidlegatta Taluk, Chickabalapur
District bound on the
East by : Sy. NO. 142 & 51
West by : Boundary or Dharmapura
North by : Sy.No. 151
South by : Sy.No. 149
25. All the piece and parcel of the property in Sy.No.151
measuring to an extant of 6 acres 02 guntas (including
04 guntas of karab) situate at Baluvaahalli Village,
Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur
District bound on the
East by : Sy.No. 51
West : Boundary or Dharmapura
17
O.S.No. 1990/2018
by
North : Sy.No.152
by
South : Sy.No. 150
by
26. All the piece and parcel of the property in Sy.No.152
measuring to an extant of 6 acres 02 guntas (including
03 guntas of karab) situate at Baluvanahalli Village,
Jangamkote Hobli, Shidlegatta Taluk, Chickabalapur
District bound on the
East by : Sy.No.51
West by : Boudary or Dharmapura
North by : Sy.No. 153, 154 & 155
South by : Sy.No. 151
27. All the piece and parcel of the property in Sy.No.153
measuring to an extant of 5 acres 01 guntas situate at
Baluvanahalli Village, Jangamkote Hobli, Shidlegatta
Taluk, Chickabalapur District bound on the
East by : Sy.No.154
West : Boudary or Dharmapura
by
North : Boudary of J.Venkatapura
by
South : Sy.No. 152
by
28. All the piece and parcel of the property in Sy.No.154
measuring to an extant of 4 acres 39 guntas situate at
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Baluvanahalli Village, Jangamkote Hobli, Shidlegatta
Taluk, Chickabalapur District bound on the
East by : Sy.No.155
West by : Sy.No. 153
North : Boudary of J. Venkatapuura
by
South : Sy.No. 152
by
29. All the piece and parcel of the property in Sy.No.155
measuring to an extant of 4 acres 27 guntas situate at
Baluvanahalli Village, Jangamkote Hobli, Shidlegatta
Taluk, Chickabalapur District bound on the
East by : Sy.No.51
West : Sy.No. 154
by
North : Boundary of J. Venkatapura
by
South : Sy.No. 152
by
30. All the piece and parcel of the property in Sy.No.182
measuring to an extant of 1 acres out of the total 2 acres
situate at Baluvanahalli Village, Jangamkote Hobli,
Shidlegatta Taluk, Chickabalapur District bound on the
East by : Property belonging to N.M. Annaiah
West : Property belonging to N.M. Ramarathnam
by
North : Property belonging to N.M. Ramarathnam
by
South : Road
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O.S.No. 1990/2018
by
(Note: Decree on admission already drawn).
31. All the piece and parcel of the property in
Sy.No.25/1A measuring to an extant of 2 acres 31 guntas
situate at Baluvanahalli Village, Jangamkote Hobli,
Shidlegatta Taluk, Chickabalapur District bound on the
East by : Boundary of Irigenahalli
West by : Sy..No. 182
North : Property belonging to N.M. Ramarathnam
by
South : Road
by
(Note: Decree on admission already drawn).
32. All the piece and parcel of the property in Sy.No.115
measuring to an extant of 4 situate at Dharmapura
Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru
rural District bound on the
East by : Boundary of Baluvanahalli Village
West by : Channarayapatna Road
North by : Property belonging to Kurubara
Muniyappa
South by : Sy.No. 116
33. All the piece and parcel of the property in Sy.No.116
measuring to an extant of 2 acres situate at Dharmapura
Village, Vijayapura Hobli, Devanahalli Taluk, Bengaluru
Rural District bound on the
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O.S.No. 1990/2018
East by : Boundary of Baluvanahalli
Village
West by : Channarayapatna Road
North by : Sy.No. 155
South by : Hanumanyhappa S/o
Koovappa’s Property
34. All the piece and parcel of the property
inChannaryapatna panchayathi Khata No. 42/36
measuring to an extant of ½ acre (including two rooms
on the western side of the building gifted to Govt. School,
Baluvanahalli ) situate at Irigenahalli Village,
Channarayaptna Hobli, Devanahalli Taluk, Bengaluru
Rural District bound on the –
East by : Building gifted to Govt,
primary School
West by : Road
North by : Road
South by : Road
(Note: Decree on admission already drawn).
35. All the piece and parcel of agricultural land
measuring to an extent of 2 (two) acres in Sy. No. 113 of
Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk,
Bengaluru Rural District bound on the
East by : Vijayapura- Channarayapatna
Road
West by : Dharmapura
Narayanaswamy’s land
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North by : Yeluvally Sriramappa’s land
and
South by : Land in Sy.No. 114
36. All the piece and parcel of agricultural land
measuring to an extent of 1 acres 11 guntas in Sy. No.
114 of Dharmapura Village, Vijayapura Hobli, Devanahalli
Taluk, Bengaluru Rural District bound on the
East by : Vijayapura- Channarayapatna
Road
West by : Dharmapura
Narayanaswamy’s land
North by : Land in Sy.No.114 and
South by : Dharmapura Road
37. All the stocks, Shares, Debentures in different
Companies, Bonds of different companies/ Authhorities
standing in the name of /belonging to Sri, N.M.Annaiah.
38. Fixed deposites. Bank balances in Saving Account
as well as current Accounts in the name of Sri. N.M.
Annaiah in different Banks.
39. All the antiques collections of watches and other
items of valuable items held by Sri. N.M. Annaiah
including Vehicles.
40. All the Stocks , Shares, Debentures in different
companies, Bonds of different Companies/Authorities
standing in the name of / belonging to Smt. N.A. Janaki
Bai also known as Smt. N.A. Narayanamma.
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41. Fixed deposits, Bank balances in Savings Accounts
as well as current in the name of Smt. N.A. Janaki Bai also
known as Smt. N.A. Narayanamma in different Banks and
Post offices.
42. All the gold jewels and other items of valuable
items held by Smt. N.A. Janaki Bai also known as Smt.
N.A. Naryanamma including vehicles.
Written statement schedule properties of
defendant No.5:
1. 50% shares in the property bearing Municipal No.
1006/1, New No. 76-47-1/3, property known as ‘Sampige
and Savitha Theatres’ measuring East to West 250 ft.
North to South 150 ft., situated at Sampige Road,
Malleshwaram, Bangalore and bounded on the East by
Road, West by Mantri Apartments , North by Road and
South Property in occupation of LIC.
2. All that piece and parcel of the property bearing
Sy.No. 5/1, measuring 13 guntas at Beratana Agrahara,
Beguru Hobli, Banagalore South Taluk and bounded on
the East by Saraswathammal and KR Rajakrishna Reddy
property, West by Bangalore- Hosur Road, North by
Rajakrishna Reddy property and South by K.R.
Rajakrishna Reddy Property.
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3. All the piece and parcel of the property bearing Site
No. 18, 7th Cross , II Block, Jayanagar, Bangalore
measuring East to West 40 ft., North to South 65 ft., and
bounded on the Site No. 17 West by Site No. 19, North by
road and South by Site No.27.
4. All that piece and parcel of the property bearing
Sy.No. 12/3, situated at Madiwala Village, Begur Hobli,
Bangalore South Taluk, measuring East 388 ½ ft., West
by 3266 ft., North by 55 ft., and South by 34 ft., in all
measuring 15 ½ guntas and bounded on the East by Smt.
Gowramma land, West by KRS Murthy land, North by
Road and South by B. Gundappa’s land.
5. All the piece and parcel of the property bearing PID
No. 66-12-05 ( Old No. 5), 4 th Main Road, Madiwala
Extension, Bangalore standing in the name of 3 rd
defendant.
6. All that piece and parcel of the property bearing No.
19/8-1, 4th Main Road, Old Fathima School, Chinnamma
Layout, New Extension, (Madiwala Ward No. 172)
Bangalore 560068.
7. All that piece and parcel of the property bearing No.
1599/1, PID No. 005-W2197-19, Nehru Nagar, Yelahanka
Old Town, Bangalore 560064, ( now within BBMP limits )
having a commercial complex with four floors building
measuring East to West 84 ½ + 102 ½ , North to South
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60 ft., in all measuring 5610 Sq.ft., and bounded on the
East by channegowda property, West by Highway, North
by Nehru Nagar Main road and South by site No.2.
8. (Property standing in the name of 5th
defendant – vacant land gifted by 3 rd defendant
and developed by of 5 th defendant evicting the
them existing tenants at her cost) All that piece and
parcel of the property bearing Old No. 148, New No. 162,
situated on 3rd main Road, Chamarajapet, Bangalore
560018 measuring East to West 30 ft., North to South
110 ft., in all measuring 3300 sq.ft., and bounded on the
East by property of Govindaraju Mudallar, West by
property of Annayappa Chennappa, North by
conservancy and South by 3rd Main Road.
9. ( Land acquired by BBMP – Compensation of
about Rs. 4.00 crore deposited in Court) All that
piece and parcel of the property bearing No.1 Platform
Road, Malleshwaram , Bangalore -3.
10. Compensation amount received from M/s.
Bangalore Metro Railway Corporation Ltd., (BMRCL) in
respect of the land bearing BBMP Katha No. 457/17/5, in
Sy.No. 17/5 of Rupena Agrahara, Begur Hobli, Bangalore
South Taluk, Towards the acquisition of about 5000 sq.ft.,
of land.
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11. Outstanding in SB Account No. 00092100004385
maintained at M/s. HDFC Bank, Kasturba Road, Bangalore
stainding in the name of deceased Defendant No.1
Annaiah NA.
12. Outstanding in SB Account No. 10386330503
maintained at M/s. State Bank of India, Jayanagar Branch,
Bangalore standing in the name of deceased of
defendant No.1 – Annaiah NA.
13. Gold, silver, Diamond Jewelleries in the custody of
plaintiff Dr. Anirudh, defendant No.3 N.A. Venugopal,
Smt. Menaka Venugopal, w/o N.A., Venugopal and Smt.
Usha, daughter in law of N.A. Venugopal.
14. 1/3 rd Share standing in the name of N.A.
Venugopal in partnership firm A.V. Exhibitors – Sampige
and Savitha Theatres.
Written statement schedule properties of
defendant No.4,6& 7.
1. All that piece and parcel of the immovable property
bearing Survey No. 5/1, measuring 94,743 square feet of
land situate in Beratena Agrhara, Beguru Hobli,
Bangalore South Taluk, and Bounded on East by:
Saraswathamma & K.R. Rajakrishna Reddy’s land and
West by K.R. Rajakrishna Reddy and Bangalore Hosooru
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O.S.No. 1990/2018main Road, North by Rajakrishna Reddy’s Land and South
by K.R. Rajakrishna Reddy’s Land.
2. All that piece and parcel of the immovable
property bearing Site No. 18 situate in 2 nd Block,
Jayanagar (7th Cross) extension, and bounded and East
by: Site No.17, West by: site No. 19, North by: Road and
South by site No. 2 measuring East to West 40 feet and
North to Southh 65 feet.
3. All that piece and parcel of the immovable property
bearing Survey No. 12/3 situate in Madiwala Village,
Beguru Hobli, Bangalore South Taluk, Measuring East by
388 ½ feet West by 366 feet, North by 55 feet and South
by 34 feet totally measuring 15 ½ Guntas of land and
bounded on East by: Smt. Gowramma wife of Gundappa
an dher Chldren, West by: Remaining Land in the Same
Survey No. belonging to Sri. K.R.S. Murthi,North by: 30
feet Road and south by: Badanapalli Gundappa’s Land.
4. All the piece and parcel of the immovable property
bearing vacant site bearing No.1599/01, New PID No.
005-W2197-19, old Municipal Khatha No. 441/1, presently
BBMP Khatha No. 110/109/467/387/1, Nhru Nagar,
yelahanka Old Town, Yelahanka, Bangalore-560064, Now
in BBMP Limits, Kempegowda Ward No.01, measuring
East to West (84 ½ +102 102 ½) 2 feet and North to
South 60 feet, in all 5610 square feet, and bounded on
East by: Previously Conservancy Road, Presently
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O.S.No. 1990/2018
Channegowda’s Property, West by: Bangalore – Bellary
Road (old), North by: Nehru Nagar Main road and South
by: Site bearing No.2.
5. All that piece and parcel of immovable property
bearing old No. 148 and New No. 162, situate on 3 rd Main
Road, Chamrajpet, Bangalore 560018, measuring East to
West 30 feet and North to South 110 feet in all measuring
3300 square feet and bounded on East by: Property
belonging to Govendaraju Mudaliar, West by: Property
belonging to Annaiahyappa Chennappa, North by:
Conservancy; and South by: 3rd Main Road.
6. All that piece and parcel of the vacant land bearing
plot No.1, Platform Road, Malleshwaram , Bangalore
560003 measuring East to West 94 feet and on the
Western side and 131 feet on the Eastern side and North
to South 24 feet on the Western side and 96 feet 8 inches
on the Eastern side and bounded on East by Platform
Road, North by: Plot No.2, West by: Nulla and South by:
Property belonging to Southern Railways.
7. Gold Oranments belonging to N.M. ANNAIAH –
1st defendant
a) One Gold long Chain
b) One gold Neck Chain.
c) One Gold Wrist Chain (Hud dara)
d) One gold Bracelet.
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e) 3 Gold Diamond Rings-9 stone, 5 stone and 1
stone.
7 a) Watches belonging to N.M. ANNAAH- 1st
defendant
Watches are taken by N.A. Annaias whenn he
moved to N.A. Venugopala House in the year 2018.
7-b). Car Registered in the name of N.M. ANNAIAH –
1st defendant
Honda City Car- 1.5 GX1 2004 Bearing No. KA-04-
MA7299.
7.c). Bank accounts Belonging To N.M. Annaiah-1st
defendant.
a) State Bank of India, Jayanagar 2nd Block Branch.
Account No.10386330503.
b) The then State Bank of Mysore Now State bank
of India.
Malleshwaram Branch A/c No. 54047962984.
c) The Bharath Co- Operative bank (Mumbai) ltd
Now Bharath bank, K.H. Road Branch. Current
Account No. 002112100004133.
d) Post office Jayanagar III Block S.O. Savings
bank General- With Chque book, C/F/D No.
3004862358, A/c No. 3013696406.
8. GOLD ORNAMENTS BELONGING TO N.A.
NARAYANAMMA @ N.A. JANAKAMMA-2nd defendant.
a) 8 pair gold Bangles each weighng 100 gm/
pair= totally 800 grams.
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b) 2 pair Stone Bangles weighing weighing totally
300 grams.
c) 10 Number Gold Neck Chains each weighing
80 grams= totally 800 grams
d) 1 gold wrist belt (Dabu) weighing 400 grams.
e) 1 gold 5 layer chain weighing 350 grams
f) 2 pairs of Diamond ear studs.
g) 3 Diamonds Nose studs.
h) 2 Diamonds Stone Rings.
I) 4 Gold Stone Rings.
j) 4 Stone Neckless (white & Blue stone etc.,)
k) 12 layer pearls Chain.
l) 1 Pearls Neckless.
m) 1 Coral Necklace.
n) 1 American Diamond
o) 2 Gold Teka Chains with pendent.
p) 8 Gold and Stone ear Rings.
q) 1 Mangala Chain with Mangalya.
r) 2 Gold Ear Mati Chain.
s) 2 Silver Wrist Belts each weighing 500 grams.
t) 100 Costly silk Designer Saris.
8-a) BANK ACCOUNTS BELONGING TO N.A
NARAYANAMMA @ N.A. JANAKAMMA
a) State bank of India Jayanagar II Block Branch.
Current Account No. 10386330490.
b) The then Andhara Bank Now Union Bank f
India Jayanagar Branch SB A/C No.
027310011010707. (Nominee N.A. RAVIGOPAL)
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O.S.No. 1990/2018
The Plaint averments are briefly stated as follows:-
The Plaintiff is the great grand son of Late N.A.
Munivenkatappa who was a successful businessman
during his lifetime. The said A. Munivenkatappa is
succeeded by his son Mr. N.M. Annaiah the 1 st defendant.
Sri.N.M Annaiah the grand father of plaintiff developed
the ancestral properties which he inherited from his
father, Late A. Munivenkatappa, by virtue of a registered
partition deed dated 31-3-1952 bearing No.4265 of 1951-
52 in Book I of the Office of the Sub-Registrar Bangalore
and also has acquired several other immovable
properties from the nucleus of the joint family income,
both in his name as well as in the name of his wife Smt.
Janaki Bai. @ N.A. Narayanamma-the grand mother of the
plaintiff herein and has been arrayed as the 2 nd defendant
in this case and also in the name of the fourth defendant
herein who is the youngest son the first defendant.
Defendant No.3 is the father of plaintiff and eldest son of
defendant No.1. 4th defendant is the younger brother of
defendant No.3. Defendant No.5 is the sister of plaintiff
and daughter of third defendant. Defendants No.6 and 7
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are sons of defendant No.4. For better understanding the
plaintiff who furnished the family tree of plaintiff and
defendants, who together form the joint family after the
aforesaid partition dated 31-3-1952 between A.
Munivenkatappa and his Sons N.M. Narayanaswamy; N.M
Ramaswamy; N.M Annaiah (The first defendant herein) &
N.M.Venkatesh. The joint family consisting of
aforementioned members do own several movable and
immovable properties. Though some of the properties
have been acquired from the joint family nucleus, the
same are purchased in the names of defendants No.1,2
and 4. some of the properties have been inherited by
defendants 1 and 2. All the properties are listed and
morefully described in the schedule. Plainitff being a
coparcener is in joint and constructive possession of all
the joint family properties detailed in the plaint schedule.
The plaintiff submitted that during the past one decade
the health of defendant 1 and 2 as deteriorated and
there have been irreconcilable conflicts between
defendants No.3 and 4 as a result the joint family
properties have not been effectively utilized and
appropriate income in correlation with the potential of
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the joint family properties, has not been generated.
There have been frequent muted wars and ego clashes
between the joint family members on account of which
despite every joint family member’s need, desire and
demand to partition the joint family properties could not
be amicably achieved. Several discussions and family
panchayaths could not yield the desired results on
account of one-up manship attitude of some of the joint
family members. In order to put an end to the on going
family feud and to bring about an amicable settlement
and to effect lawful partition of the joint family properties
in a proper, legal and an effective manner, plaintiff has
opted to prefer the present suit for partition of joint
family properties by metes and bounds. There is no other
effective remedy available in law other than filing this
suit for partition. Hence, the suit.
2. The written statement of the defendants
No.4, 6 & 7 with counter claim is briefly stated as
follows.
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The defendant Nos. 4 and 7 submit that the suit
filed by the plaintiff against the defendants including
them seeking for partition and separate possession of
the suit schedule properties is not maintainable in law.
Infact, the plaintiff having totally different cause of
action against the defendant Nos. 1 and 2 in respect of
the respective items of the suit schedule properties
even if there be any, has filed the above suit against
defendant Nos. 1 and 2, when infact, the
plaintiff should have filed 2 separate suits against the
defendants Nos. 1 and 2 and other defendants
including these defendants, on which ground alone the
above suit is liable to be dismissed. Moreover, the
entire claim is silent as to which items of the suit
schedule properties are the joint family properties
standing in the name of the 1st defendant and which
items of suit schedule properties are either the joint
family properties or self acquired properties of the 2nd
defendant and as such the entire claim of the plaintiff
is ambiguous and incapable of being made out by the
plaintiff himself. In addition to the above, the plaintiff
along with the plaint has produced only the
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certified copy of the registered partition deed dated
31/3/1952 duly executed between the father of the 1st
defendant and his sons including the 1st defendant in
the above suit, the subject matter of which partition
deed relates to only some items of suit schedule
properties. With regard to the other items of
suit schedule properties, the plaintiff has not chosen to
produce the certified copies of title deeds standing in
the name of either the 1st defendant or 2nd defendant
and has also not bothered to produce the latest
encumbrance certificate in respect of all the items of
suit schedule properties. The plaintiff has cleverly
not incorporated 6 items of immovable properties
which are also having the nature and character of
ancestral properties, in respect of which even though
the 1st defendant is not the absolute owner, the
plaintiff, his father who is the 3rd defendant in the
above suit and his sister who is the 5 defendant in the
above suit have managed to procure the registered
Gift Deeds in their favour from the 1 st defendant
and the subject matter of the said Gift deeds is the
subject matter of the counter claim made by these
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defendants, which items of the Gifted properties are
the written statement schedule properties, in respect
of which the necessary reliefs of declaration and
partition are sought for by these defendants by way of
counter claim. The item Nos. 1,4,5, one site in item No.
8, 11 and 12 of the plaint schedule properties
are owned and standing in the name of 1st defendant
in the above suit. Likewise, the item Nos. 2, 3,7, two
sites in item No. 8.Two sites in item No. 10 and one
site in item No. 10 came to be released by the 1st
defendant in favour of the 2nd defendant. Item No. 14
is owned and standing in the name of the 2nd
defendant in the above suit. With regard to item No. 6
of the plaint schedule property, it was purchased in the
name of the 4th defendant. With regard to item No. 9
of the plaint schedule property it was owned by the
mother of the 2nd defendant and after her death, the
2nd defendant being the only legal representative to
her mother succeeded to the same and subsequently
the 2nd defendant in turn executed and registered the
Gift Deed, Gifting away item No. 9 of the
plaint schedule property in favour of her younger son
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who is the 4th defendant in the above suit. The 4th
defendant has mortgaged the said item of property by
way of deposit of title deeds in favour of the Bank for
the purpose of raising loan and has put up construction
of a Hotel Building and the said loan is still to be
discharged by him. With regard to 2 sites in item No.
10 of the plaint schedule property which was owned by
the mother of the 2nd defendant in the above suit and
after the death of Smt. Dasamma the 2nd defendant
became the absolute owner of the 2 sites in item No.
10 of plaint schedule property by virtue of the
registered will executed by Smt. Dasamma in favour of
her only daughter who is the 2nd defendant in
the above suit. However, one site in item No. 10 of the
plaint schedule property was purchased by the 1st
defendant who in turn executed and registered the
release deed in favour of his wife, who is none other
than the 2nd defendant in the above suit. With regard
to item No. 13 of the plaint schedule property which
was owned by the mother of the 2nd defendant, viz.,
Smt. Dasamma and after her death the 2nd defendant
being her only legal representative succeeded to the
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same. With regard to item No. 14 of plaint schedule
property it is the 2nd defendant who purchased the
same under the registered sale deed. With regard to
item No. 15 of the plaint schedule property the
1st defendant got to his share the said item of property
under the registered partition deed dated 31/3/1952
between his father, himself and his 6 Brothers. With
regard to item No. 16 of the plaint schedule property,
the said item came to be purchased by the 2nd
defendant under the registered sale deed. With regard
to item No. 17 of the plaint schedule property it
came to be purchased by the 4th defendant under the
registered sale deed dated 30/8/1993 duly executed by
Sri. K. Peddi Raju and T. Govardhan Rao for a sale
consideration of Rs. 6,480/- and the said item of
property is the self acquired property of the
4th defendant which is not liable to be partitioned
between the plaintiff and the other defendants in the
above suit. With regard to item No. 18 of the plaint
schedule property wherein presently 2 Theaters by
name ‘Sampige’ and ‘Savitha’ are situate, the then
vacant site came to be purchased by defendant Nos.
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1,3,4 and the Brother of the 1st defendant by name
Sri. N.M. Venkatesh. In the said item of property
the defendant Nos. 1, 3 and 4 have together 50%
share and the Brother of the 1st defendant by name
Sri. N.M. Venkatesh who is no more had the remaining
50% share in the said item of property. However, after
the death of Sri. N.M. Venkatesh during the year 1977,
his wife and 2 sons have succeeded to 50% in the said
item of property. Even during the life time of Sri. N.M.
Venkatesh, he along with defendant Nos. 1, 3 and
4 constituted a registered firm under the name and
style ‘M/s A.V. Exhibitors’ for the purpose of running
the 2 theaters mentioned above. After the death of Sri.
N.M. Venkatesh in terms of one of the covenants of the
partnership deed his wife and 2 sons have also become
the partners of M/S. A.V. Exhibitors along with
defendant Nos. 1, 3 and 4. Consequently, the plaintiff
No.1 being the son of the 3rd defendant is not entitled
to 1/6th share in the said item of property. Both
the plaintiff No.1 as well as the 3rd defendant were
fully aware of the fact that item No. 1 of the written
statement /counterclaim schedule property is one of
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the subject matters of the court claim in respect of
which the necessary relief of declaration is also sought
for by defendant Nos. 4, 6 and 7. In fact, the defendant
Nos. 4, 6 and 7 have also filed an application seeking
for an order of Temporary Injunction restraining
the 3rd defendant from either alienating or
encumbering item No. 1 of the written statement/
counterclaim schedule property and the said
application is pending consideration”. Even during the
pendency of the above suit and the application filed
by them for Injunction in respect of item No 1 of the
written statement/counterclaim schedule property
which was/is well within the knowledge of both the 3rd
defendant and the plaintiff No.1, the 3rd defendant by
playing fraud on these defendants has clandestinely
Executed and Registered the Gift Deed
dated 12/06/2019, Gifting away the item No. 1 of the
written statement /Counterclaim schedule property
in favour of the plaintiff even during the pendency of
the above suit. In fact, it is the 5th defendant who is
the Daughter of the 3rd defendant and younger sister
of the plaintiff No.1 who informed these defendants
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about the aforesaid Registered Gift Deed which made
these defendants to apply for the
Encumbrance Certificate and after obtaining the same,
the fact of the Execution and Registration of the
aforesaid Gift Deed came to the knowledge of these
defendants and subsequently they applied for and
secured the Certified Copy of the aforesaid Gift Deed.
The plaintiff No.1 is not entitled to 1/6th share in the
plaint schedule properties at all. Even according to the
plaintiff No.1 it is his case that the plaint schedule
properties are the ancestral properties. However, the
entire plaint is silent with regard to the items of the
plaint schedule properties which are standing in the
name of the 1st defendant and the item of plaint
schedule properties which are standing in the name of
the 2nd defendant. Moreover, some of the
plaint schedule properties cannot be made out in the
absence of its situation, measurements and with
reference to boundaries. In respect of certain items
of plaint schedule properties standing in the name of
the 1st defendant, the defendant Nos. 1, 3 and 4 are
each entitled to 1/3rd share except item No. 17 of the
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plaint schedule property which is the self acquired
property of the 4th defendant and not liable to be
partitioned between the plaintiff and the defendants. In
turn, the plaintiff and defendant Nos. 3 and 5 would
each become entitled to 1/9th share from out of the
1/3rd share of the 3rd defendant. Like wise, in respect
of the 1/3rd share of the 4th defendant, the Defendant
Nos. 4, his 2 sons viz., defendant Nos. 6 and 7 would
be entitled to 1/9th share each from out of 1/3rd share
of the 4th defendant in the plaint schedule property
except item No. 17 of the plaint schedule property
which is the self acquired property of the
4th defendant and not liable to be partitioned between
the plaintiff and the defendants. With regard to certain
items of the plaint schedule properties standing in the
name of the 2nd defendant, some of which items of
properties came to be purchased by the 1st defendant
in the name of the 2nd defendant are ancestral
properties, the said items of properties having been
purchased from out of the nucleus of the joint family
accretions and certain items of plaint
schedule properties which came to be succeeded to by
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the 2nd defendant by virtue of the will executed by the
mother of the 2nd defendant in her favour also
assumes the character of an ancestral property, in
respect of which the 2nd defendant, the 3rd defendant
and the 4th defendant have 1/3rd share each
in respect of the said items of properties. In turn, the
3rd defendant along with the plaintiff and the 5th
defendant in the above suit would become entitled to
1/9th share each from out of the 1/3rd share of the 3rd
defendant. Likewise, the 4th defendant along with the
defendant Nos. 6 and 7 would become entitled to 1/9th
share each from out of the 1/3rd share of the 4th
defendant in the above suit. The plaintiff
and defendant Nos. 1, 2, 3, 5,6 and 7 are not entitled
to any share in item No. 17 of the plaint schedule
property, since the said item of property is the self
acquired property of the 4th defendant and not liable
to be partitioned. The genealogical tree at the end
of Para III of the plaint and as such the relationship
between the parties to the suit is admitted. It is true
that the father of the 1st defendant was one A.
Munivenkatappa. The said Munivenkatappa along with
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his sons including the 1st defendant in the above suit
executed and registered the partition deed dated
31/3/1952 vide document No. 4265/1951-52 in Book
No. 1 in the office of the Sub-Registrar Bangalore. The
1st defendant, who is one of the parties to the
aforesaid partition, got to his share of following items
of properties;
a) All that piece and parcel of the shop Nos.
146, 147 and 148 situate at Neharunagar,
Seshadripuram, Bangalore measuring East to
West 28 Feet and North to
South 37+39/2bounded by East by: vacant site,
West by: Narasingarayara’s House, North by:
conservancy lane and South by Main Road.
b) All that piece and parcel of House
property bearing No. 148, situated at 3rd
Cross, Chamarajapet measuring East to West
30 Feet and North to South 110 feet, bounded
on East by: Govindaraju Mudaliyar’s House,
West by: Annaiayappa and Channappa’s House,
North by: Conservancy Lane and South by Main
Road.
c) All that piece and parcel of Municipal site
No. 12, situated at Vadigenahalli, Devanahalli
Taluk, measuring East to West 50 feet and
North to South 80 feet bounded on East by:
Site No. 13, West by: Site No. 11, North by:
Road and South by; Conservancy Lane.
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d) Piece and parcel of land bearing Sy. No.
60/1 measuring 4 acres situated at
Ayyebasapura, Channarayapattanna
Hobli, DevanahalliTaluk bounded on East by
Muniyappa’s land, West by: Halla, North by:
Halla and South by Munisamappa’s Land.
e) Piece and parcel of land bearing Sy. No. 60/2
measuring 4- acres 12
guntas land situated at Ayyebasapura, Channar
ayapattanna Hobli, DevanahalliTaluk bounded
on East by Muniyappa’s land, West by: Halla,
North by: Halla and South by Munisamappa’s
Land.
f) Piece and parcel of land bearing Sy. No. 50,
measuring 24 acres land situated at
Baluvanahalli, Jangama Hobli. Shidlagatta Taluk,
bounded on East by: Government Land, West
by: Shatakundahalli, Dharmapurada Elle, North
by: Venkatapurada Elle and South by Kalachai’s
Land.
g) Piece and parcel of Tarasi House situated at
Joddihosooru, Channarayapattana Hobli,
DevanahalliTaluk bounded on East by Road,
West by: Road, North by: Road and Soth
by: Narayanappa’s House.
h) Piece and parcel of MaligeHouse situated at
Joddihosooru, Channarayapattana Hobli,
DevanahalliTaluk bounded on East by: Vacant
Land, West by: Road, North by: Road and
South by: Aanjamappa’s House.
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a) CASH OF Rs. 1,000/-.
b) Silver and Gold Articles Worth Rs. 6,320/-.
c) Insurance Worth Rs. 3,872/-
d) Ralli Cycle and Furniture’s worth Rs. 459/-
e) Brass Articles Worth Rs. 200/-.
f) Iron Wood Desk Worth Rs. 110/-.
g) Silk Shop Balance Worth Rs. 75,181/-.
3. Thus the defendants have taken contention that
except item No.17 of the plaint schedule property which
is self acquired property of the defendant No.4, the
plaintiffs and the defendant No.1, 3 (now transposed as
plaintiff No.2) and defendant No.4 are entitled for equal
share in the plaint schedule properties.
4. The defendants have taken contention that under
the partition deed dated 31.03.1952 8 items of
immovable properties, (a) cash of Rs. 1,000/-. b) Silver
and Gold Articles Worth Rs. 6,320/-. c) Insurance Worth
Rs. 3,872/- d) Ralli Cycle and Furniture’s worth Rs.
459/- e) Brass Articles Worth Rs. 200/-. f) Iron Wood Desk
Worth Rs. 110/-. g) Silk Shop Balance Worth Rs. 75,181/-,
totally valued at Rs.1,33,192/- fallen to the share of the
defendant No.1. The defendants No.4, 6 & 8 have sought
for 1/3rd share of defendant No.4 in relation to item No.1
to 8, 10 to 16 of the plaint schedule properties and 1/3rd
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share out of or 50% share in item No.18 of the plaint
schedule property which in turn results in 1/9th share
each out of 1/3rd share of defendant No.4 to the
defendants No.4, 6 & 7.
5. The defendants No.4, 6 & 7 have further contended
that the plaintiffs deliberately left out counter claim
schedule properties. Item No.1 of the written statement
schedule property came to be purchased by 1 st defendant
in the name of the defendant No.3 under registered sale
deed dated 15.04.1974. from out of income derived by
the 1st defendant from both ancestral and joint family
properties and entire sale consideration was paid by the
defendant No.1. Hence, this item no.1 of written
statement property is the joint family property. Item No.2
of the written statement property which was then vacant
site bearing No.18 measuring East to West 40 ft. and
North to South 65 ft. which came to be purchased by the
defendant No.1 under the registered sale deed executed
by CITB out of the joint family income and hence, this
property is also joint family property. The defendant
No.1 is not having absolute ownership over the suit
schedule property . The defendant No.1 had no right to
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execute the Gift Deed in favour of the defendant No.3.
With regard to item No.3 of the written statement
schedule property it was came to be purchased by the
defendant No.1 under the registered sale deed dated
04.05.1966 for sale consideration of Rs.3,000/- from out
of joint family income. The defendant No.1 has no
exclusive right over the same in order to execute Gift
Deed in favour of the defendant No.3. Item No.4 of
written statement schedule property came to be
purchased by the defendant No.1 in the Municipal auction
under the registered sale deed in his name from out of
income derived by him from several ancestral properties
which came to be allotted to the share of 1 st defendant
under registered partition deed dated 13.03.1952. Item
No.5 of written statement property is the ancestral
property of the plaintiff and defendants. Since it is the 1 st
defendant who got his share in the said item of property
under the partition deed dated 19.03.1952, the
defendant No.1 who has no absolute right over the same
executed registered Gift Deed dated 07.04.2012. The
defendant No.5 has no absolute right over the same by
way of gift deed. This property is the joint family property
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of the plaintiff and the defendants. Item No.6 of the
written statement schedule property bearing Plot No.1,
platform road, Malleswaram, Bengaluru measuring in all
7000 sq.ft. purchased by the defendant No.1 in the name
of defendant No.3 under the registered sale deed. At the
time of purchase of the property defendant No.3 was
hardly aged 18 years and he was no source of income.
The defendant No.1 purchased this property out of
nucleus of joint family income. Hence, it is joint family
property. This property acquired by BBMP for widening
platform road and the compensation amount of
Rs.6,45,39,439/- was awarded and said compensation
amount deposited in Misc.No.634/2014. In that Misc.
case neither 1st plaintiff nor defendants No.4, 6 & 7 were
made as parties. Since item No.6 of the property is also
joint family property liable to be partitioned. The branch
of defendant No.4 together entitled ½ share in it. The
branch of plaintiff No.2 entitled for ½ share. The
defendant No.3 utilized joint family funds for the purpose
of doing business and incurred huge loss. The defendant
No.4 is entitled for equal share in counter claim schedule
properties along with plaintiff No.2 and defendant No.1.
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O.S.No. 1990/2018
The defendant No.1 died on 01.11.2020 leaving behind
him surviving defendant No.3 (now transposed as plaintiff
No.2) and defendant No.4 as his legal representatives.
The defendant No.1 was residing along with 4 th defendant
and his family members till the year 2018. The 2 nd
defendant was also living with the 1 st defendant. But
during the year 2018 the 1st defendant joined his wife,
who started living in the house of the defendant No.3, at
the time of 1st defendant left the house of the defendant
No.4 and started living in the house of defendant No.3,
he was in possession and custody of several items of
jewels which were all owned by him. All the jewels which
are mentioned in the written statement schedule
properties are joint family properties. The gift deeds
executed by defendant No.1 are not binding on these
defendants. Hence, the defendants prayed for decre
counter claim.
1. The written statement filed by the
defendant no. 1 to 3 to the plaint as well as
counter claim is as follows.
The averments made in Paragraph No. III of the plaint in
so far as relationship between the parties is admitted.
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O.S.No. 1990/2018
The averments made in Para No. III-2 regarding the joint
family of the parties owned several movable and
immovable properties and that some of the properties
have been purchased out of joint family nucleus which
are purchased in the name of defendant No. 1, 2 and 4
are admitted. The further averments that the plaintiff is a
coparcener and he is in constructive possession of the
joint family property is admitted. It is contended that
these defendants are also coparceners who are entitled
for share and they are also in constructive possession of
the suit schedule properties. The contention of the
plaintiff that during the past one decade, the health of
the defendant no.1 and 2 has deteriorated is denied as
false. All the averments made in para no. III (4) of the
plaint are denied as false. These defendants have taken
contention that there was a family business of father of
the defendant no. 1 wherein defendant No. 1 was getting
income. The defendant no. 3 who is a qualified well
educated person during his younger days working as a
manager in Ennem Polpax company from 1972 to 1976
and was drawing salary of Rs 1,000 per month. The
defendant no. 1 and 2 till the date of their filing this WS
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O.S.No. 1990/2018
have not executed any will or codicil in respect of any of
the suit schedule properties. However they intend that
their share in all the properties shall go in favour of
defendant No. 3 and 4 in equal shares. These defendants
executed registered gift deeds in favour of plaintiff,
defendant no. 5 and defendant no. 7. The property which
gifted in favour of defendant no. 7 is mentioned as item
no. 9 of suit schedule property. The property is gifted in
favour of plaintiff and defendant no. 5 are the self
acquired/ exclusive properties of defendant no. 1. The
properties which are included with the written statement
schedule are not partible. The contention of the
defendant no. 4 is that plaint schedule item no. 17 is his
self acquired property is denied as false. This property
purchased from joint nucleus of the joint family of
defendant no. 1. The contention of the defendant no. 4 is
that Item No. 1 of Written statement schedule property
had purchased in the name of defendant no. 3 is denied
as false. Further contention that Item No. 2 of WS also
purchased by defendant no. 1 out of joint family income
is denied as false. Infact the said property had been
purchased by defendant no. 1 out of his earning and that
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O.S.No. 1990/2018
properties are not available for partition. The defendant
no. 1 gifted the same in favour of the defendant no. 3.
The Item No. 3 of WS also purchased by defendant no. 1
out of his individual income. Hence he had gifted the
same in favour of defendant no. 3. The contention of the
defendant no. 4 is that Item No. 4 of WS purchased by
the defendant No. 1 in the municipal auction by utilizing
the joint family funds, is denied as false. It is admitted
that several ancestral properties were allotted to the
share of defendant no. 1 under registered partition deed
dated 13.03.1952. However the said properties have not
been blended with that of the individual properties
purchased by the defendant No. 1. It is admitted that
Item No. 5 of Written statement property had come to
defendant No. 1 under registered partition deed of the
year 1952. Since the defendant No. 5 served the family
including its business as a practicing lawyer and rendered
her professional services without charging any fees,
hence defendant No. 1 gifted Item No. 5 in favour of the
defendant No. 5. Hence the colour of jointness of the
property is lost. The contention of the defendant no. 4 is
that Item no. 6 of WS had been purchased in the name of
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O.S.No. 1990/2018
defendant no. 3 by the defendant no. 1 by using joint
nucleus of the property is incorrect. Infact defendant no.
3 was helping the family business from his young age. In
view of service rendered by defendant No. 3, the brothers
of the first defendant namely NM Narayanasyamy, NM
Ramaswamy, NM Venkatesh have funded to purchase the
property out of their self earnings. The contention of the
defendant no. 4 that the defendant no. 3 utilized joint
family funds of Rs 25,00,000 and he also started techno
plant, poultry farm, grape farm etc and suffered loss is
denied as false. The contention of the defendant no. 4 is
that, defendant no. 1 purchased the written statement
schedule properties out of joint family nucleus is denied
as false. The claim made by the defendant no. 4, 6 and 7
in their written statement hopelessly barred by law of
limitation. The court fee paid is insufficient. Hence on
these grounds, the defendant no. 1 and 2 prayed to grant
them 3/9th share and defendant No. 3 prayed to grant
him 1/9th share and to pass preliminary decree.
2. The written statement filed by defendant No.
5 along with counter claim is briefly stated as
follows.
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O.S.No. 1990/2018
The family tree mentioned in the plaint is admitted.
Admitted all the suit schedule properties along with
undisclosed items of the properties by the plaintiff for the
reasons best known to him, are the joint family
properties. The averments made in para no. 3 of the
plaint is denied as false. If at all the health condition of
defendant no. 1 deteriorated since a decade, how can he
give instructions to counsel to prepare written statement.
Except certain issues, in respect of the properties, there
are no conflicts between defendant no. 3 and 4 who are
staying next doors. There is no conciliation whatsoever
nature that took place in respect of the division of
properties among defendant no. 1 to 4. The properties
are all joint family properties and its benefit . The
intention of the plaintiff is just to avoid proper share
granted to this defendant and to take away the share of
himself along with his father Defendant no. 3. To meet
this end, this defendant has been kept away from the
family of her parents since 2 years. The plaintiff has
created a situation wherein even the parents are not in
talking terms with this defendant for the reasons best
known to them who loved and kept this defendant happy
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all along. Defendant No. 1 passed away on 1.11.2020
while defendant no. 2 predeceased him on 17.03.2020.
The defendant No. 1 is not in a good state of health to
understand the situation since a decade and is bed
ridden. In such an event, the question of mere dengue
fever of defendant no.1 do not create and cause of action
There are 7 coparcenars. Hence the plaintiff is not
entitled 1/6th share.
3. The defendant no. 5 by way of counterclaim would
contend that the plaintiff has deliberately left out certain
highly valued properties acquired in the name of
defendant No. 3 by the defendant No. 1 which are
mentioned in the schedule. This defendant is ready to
include the land gifted in her favour and development
work carried out by her by availing loans from bank in the
suit schedule properties. Defendant No. 3 and 4 have no
avocation of their own except enjoying their rents,
incomes and benefits arising out of the suit properties. All
the immovable and movable properties standing in the
name of defendant no. 3 and 4 are the joint family
properties and this defendant has a share in it. The
defendant no. 3 and 4 have virtually utilized the entire
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means profit of suit schedule and counterclaim schedule
properties. These defendants are liable to account since
the date of its acquisition upto the date of actual
calculation. The plaintiff and defendants are the
coparceners and joint possession and enjoyment of all
the properties shown in the plaint and written statement.
The calculation of the equal share by the plaintiff is
totally wrong and the Hindu Succession act needs to be
followed in this regard. Hence the defendant no. 5 prayed
to incorporate the written statement properties along
with all the suit schedule properties except the
development undertaken in item no. 2 of the written
statement schedule as available for partition among
coparceners of joint family of Sri NV Annayya and prays
to partition the same in accordance with the provisions
4. In the written statement filed by the plaintiff,
to the counterclaim of the defendants, he would
contend that the item no. 1 and 6 of counterclaim
schedule of defendant no. 4, 6 and 7 is the property
exclusively purchased by defendant no. 3 out of his self
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earned income. The defendant no. 3 is well educated
person with 2 graduation. He used to buy and sell shares
of different companies and also guiding his uncles to buy
the shares and sell shares of listed companies. The sale
deeds dated 15.04.1974 and 23.10.1970 cannot be
challenged as it is barred by limitation. Defendant no. 3
continuously in possession of these 2 properties as a
owner. Item no. 2 of the written statement schedule
acquired by first defendant under registered sale deed
dated 28.10.1970 out of his self earnings. It was gifted by
the defendant no. 1 in favour of defendant no. 3 under
registered gift deed dated 5.03.2004. The defendant no.
4 being signatory to the said gift deed as a witness
cannot dispute the same after lapse of more than 14
years 3 months. The Written statement item no. 3
property has been acquired by the defendant no. 1 under
registered sale deed dated 4.05.1966 out of his self
earning. The defendant no. 1 gifted this property in
favour of defendant No. 3 under registered gift deed
dated 7.07.2004. The defendant no. 4 being a signatory
to the said document as a witness cannot challenge the
same after lapse of 14 years. The defendant No. 3 who
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became the absolute owner and in possession of the
property constructed industrial shed. The defendant no. 3
gifted this property in favour of the plaintiff under
registered gift deed dated 9.09.2008. Thereafter, the
plaintiff has demolished the building and constructed a
factory premises in ground floor and PG accommodation
in first, second and third floor by investing the amount.
The written statement schedule Item No. 4 purchased by
the defendant No. 1 in a public auction held on 4.02.1962
from his self earnings. He had gifted this property to the
plaintiff under registered gift deed dated 12.06.2015. The
plaintiff when he was studying in final year MBBS, first
defendant on 15.11.2002 developed severe chest pain.
Hence plaintiff took him to Jayanagar hospital wherein it
is reveled that it is heart attack. First defendant was
taken to Trinity hospital where he had given treatment.
The execution of a gift deed in favour of the plaintiff on
12.06.2015 is a conscious and well thought after decision
of both defendant no. 1 and 2. The written statement
schedule Item no. 5 has been gifted voluntarily by the
first defendant to the fifth defendant after informing all
the family members. The counterclaim averments of
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defendant no. 4, 6 and 7 are barred by period of
limitation. There is no cause of action to file the
counterclaim. The court fee paid is insufficient. The
properties which are mentioned in the plaint which are
joint family properties are liable for partition. The
defendant no. 4, 6 and 7 hold and possesses properties
purchased by the first defendant. Those properties are
liable for partition in terms of Benami Transaction Act as
well as customary Hindu Law. Hence the plaintiff prayed
for dismissal of counterclaim preferred by defendant no.
4, 6 and 7.
5. The written statement filed by the defendant
No. 8 to 10 subsequently added defendants are as
follows.
These defendants are the private persons and they are
concerned only with respect to their purchased properties
out of item no. 6 of the plaint schedule. The plaintiff
should have excluded measurement as 7,200 Sq Ft.
instead of 4,800 Sq. Ft. The plaintiff already mentioned
4,800 Sq. Ft. The balance 2,400 Sq. Ft has to be excluded
from the item No. 6 of plaint schedule. The defendant no.
4 who is the absolute owner of this property sold 3 sites
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in item no. 6 in favour of these defendants under
registered sale deeds. The item no. 6 are plaint schedule
which measures 1 acre 20 guntas purchased by
defendant no. 4 under registered sale deed dated
27.07.1972. This was converted land for industrial
purpose as per order passed by Deputy Commissioner
Bangalore on 26.11.1965. In this property, private layout
of 10 sites were formed. Among them, site no. 2, 3, 4
came to be purchased by these defendants. The
defendant no. 8 purchased site no. 4 measuring 60×40.
Defendant no. 9 purchased site no. 2 measuring 60x 40,
defendant no. 10 purchased site no. 3 measuring 60x 40.
these properties purchased under 3 registered sale deeds
dated 18.02.1995. They have joined all 3 sites together
which totally measured 7,200 Sq ft and have put up
construction in 26,000 Sq ft with ground plus 3 floors and
the joint khatha is accepted and taxes are assessed to
the building. These defendants are in peaceful possession
and enjoyment of the same as a owners. These
defendants on coming to know about pendency of this
suit, inorder to safeguard their property got impleaded in
this suit. They are the bonafide purchasers of the
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properties under registered sale deeds dated 18.02.1995.
Hence they prayed for exclude 7,200 Sq ft in item no. 6
of the plaint schedule instead of 4,800 sq ft and to
safeguard their rights.
6. Based on the pleadings of the parties, the
following issues are framed.
1. Whether the plaintiffs prove that the plaint
schedule properties (excluding item No. 1 to 5, 7, 8,
10 to 16 , 18, 20, 31 and 34) are ancestral and
joint family properties of themselves and
defendants?
2. Whether the defendant No.3 (now
transposed as plaintiff as plaintiff No.2) proves that
the property gifted in favour of D5 and D7 under
registered gift deeds are self acquired properties of
D1 and 2 as contended ?
3. Whether the defendant No. 4, 6 and 7 prove
that item No. 6, 9, 17 of plaint schedule property is
self acquired of defendant No.4?
4. Whether the defendant No.4, 6 and 7 prove
that the registered gift deed dated 12.06.2015
bearing Doc. No. YAN-1-01425-2015-16 CD No. Y
AND Doc.958, registered rectification deed dated
15.06.2016 bearing Doc. YAN-1-01692-2016-17 CD
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No. YAND 629, registered rectification deed
07.04.2017 DOC No. YAN 100258-2018-19, CD No.
YAND 660 are not binding on them ?
5. Whether the defendant No.4, 6 And 7 prove
that registered gift deed dated 05.03.2004 bearing
DOC No. JNR 6785-2003-04 is not binding on them ?
6. Whether the defendant No.4, 6 and 7 prove
that registered gift deed executed by the defendant
No.1 in favour of 3rd defendant relating to item No.3
of written statement schedule property is not
binding on them ?
7. Whether the defendant No.4 , 6 and 7 prove
that registered gift deed dated 05.04.2012 DOC No.
CMP-1-0071-2012-13, CD No. CMPD 45, is not
binding on them ?
8. Whether the defendant N.4 , 6 and 7 prove
that item No.1 to 8 of the counter claim properties
are ancestral properties as contended in the written
statement and counter claim ?
9. Whether the defendant No.4, 6 and 7 prove
that the registered gift deed dated 12.06.2019
bearing DOC No. RRN-1-01824-2019-20 is not
binding on them ?
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10. Whether the defendant No.4 , 6 and 7 prove
that encumbrance by raising loan from the bank in
respect of item No. 4 of the written statement/
counter claim property is not binding on them ?
11. Whether the defendant No.4, 6 and 7 prove
that registered will executed by the defendant N.3
in respect of item No.2 of the written statement/
counter claim is not binding on them ?
12. Whether the defendant No.4,6 and 7 are
entitled for mesne profits as sought for?
13. Whether the plaintiffs are entitled for the relief
of partition and separate possession as sought for?
14. Whether the defendant No.4, 6 and 7 are
entitled for the relief of permanent injunctions as
sought for?
15. Whether the defendant No.5 proves that all
the properties standing in the name of defendant
No.3 (now transposed as plaintiff No.2) and
defendant No.3, 4 are joint family properties?
16. Whether the plaintiff proves that item No.1
and 6 of written statement schedule properties are
self acquired of defendant No.3 ( now transposed as
plaintiff No.2)?
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17. Whether the valuation of the suit made and
court fee paid is correct ?
18. Whether the defendant No.4 , 6 and 7 are
entitled for the relief of counter claim as sought for?
19. Whether the defendant No.5 is entitled for the
share in the properties as sought for?
20. Whether the plaintiff are entitled for reliefs as
sought for ?
21. What – Order or decree ?
ADDITIONAL ISSUES FRAMED ON 07.01.2026.
1. Whether the defendant N.8 to 10 proves that
they are bonafide purchasers of 7200 sq, ft.,
instead of 4800 sq. ft., mentioned in item no. 6
plaint schedule property ?
7. In this suit, initially the plaintiff failed to lead
evidence. Hence evidence started on the side of the
defendants. Defendant no. 5 examined herself as DW1.
Documents Ex.D1 to Ex.D9 marked through her.
Defendant no. 7 examined as DW2 for himself and also
on behalf of defendant no. 4 and 6 got marked
documents Ex.D26 to Ex.D84. During the course of cross-
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examination of DW1, on the side of defendant no. 4, 6
and 7, Ex.D10 to 25 are marked. During the course of
cross-examination of DW1 and DW2 on the side of the
plaintiffs, Ex.P1 to Ex.P15 are marked as these
documents were confronted. Plaintiff No. 2 examined
himself as PW1 but no documents are marked in his
examination in chief. Defendant No. 8 got examined
himself as DW3 on his behalf and on behalf of Defendant
no. 9 and 10 and documents Ex.D85 to Ex.D97 are
marked. Thus on the side of the plaintiffs, documents
Ex.P1 to 15 are marked, on side of defendants, Ex,D1 to
Ex,D97 are marked.
8. I have heard the arguments of the learned counsel
for the plaintiffs, learned counsel for defendant no.5,
learned counsel for defendant no. 4, 6 and 7 and learned
counsel for defendant no. 8 to 10 who are all also filed
their written argument. I perused the entire records.
9. While framing issue no. 3, instead of mentioning
Item No. 6, 9 and 17, only Item No. 6 of plaint schedule is
mentioned. Hence it is necessary to carry out
amendment in issue no. 3 and accordingly, it is amended
as item no. 6,9 and 17. Since the parties knows their case
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very well and already lead the evidence and adduced the
evidence on that point, this court of the opinion that it is
not necessary to post the case for further evidence.
10. My findings on the above issues are as follows.
Issue No. 1:- Partly in the Affirmative
Issue No. 2:- In the Negative.
Issue No. 3:- In the Negative.
Issue No. 4:- In the Affirmative
Issue No. 5:- In the Affirmative
Issue No. 6:- In the Affirmative
Issue No. 7:- In the Affirmative
Issue No. 8:- In the Affirmative.
Issue No. 9:- In the Affirmative
Issue No. 10:- In the Negative
Issue No. 11:- In the Negative
Issue No. 12:- In the Affirmative
Issue No. 13:- Partly in the Affirmative
Issue No. 14:-Partly in the Affirmative
Issue No. 15:- In the Affirmative
Issue No. 16:- In the Negative.
Issue No. 17:- Partly in the Affirmative.
Issue No. 18:-Partly in the Affirmative
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Issue No. 19:-Partly in the Affirmative
Issue No. 20:-Partly in the Affirmative
Addl. Issue No.1 – In the Affirmative.
Issue No.21: As per the final order for the following.
Reasons
11. Issue No. 1, 2, 3, 8 15, 16:- All these issues are
interconnected with each other hence inorder to avoid
repetition of facts and evidence and for the sake of
convenience, they are taken up together for discussion.
Prior to the adverting the evidence on record, it is
important to note undisputed facts in this suit.
12. Undisputed facts:-
Defendant no. 1 Sri NM Annayaiah and defendant
no. 2 Smt NA Janaki Bai @ NA Narayanamma are
Husband and wife. Defendant No. 4 and plaintiff No. 2 are
the sons of defendant no. 1 and 2. Plaintiff No. 1 is the
son. Defendant no. 5 is the daughter of plaintiff no. 2.
Defendant no. 6 and 7 are the sons of defendant No.4.
Defendant no. 1 died on 1.11.2020. Defendant no. 2 died
on 17.03.2020 during the pendency of this suit.
Defendant no. 1 and 2 died intestate without leaving any
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O.S.No. 1990/2018will or codicils. There are 42 items of schedule properties
mentioned in plaint schedule. There are 14 items
mentioned in counter claim schedule of defendant no. 5.
There are 8 items of properties mentioned in
counterclaim of defendant no. 4, 6 and 7. IA No. 17 filed
under Order XII Rule 6 of CPC came to be allowed and
this court passed the judgment on admission dated
12.08.2022. Consequently, a preliminary decree has been
passed in respect of plaint schedule Item No. 1 to 5, 7, 8,
10 to 16, 18, 30, 31, and 34. Consequently, final decree
proceedings has been initiated in respect of these
properties as per FDP No. 92/2023 which is pending for
adjudication. Defendant no. 4, 6 and 7 except Item No. 6,
9 and 17 admitted all other properties are joint family
properties. Existence of joint family is admitted by both
plaintiffs and defendant No. 1 to 7. The ancestral
properties were divided among defendant no. 1 and his
three brothers under registered partition deed dated
31.03.1952. The plaintiff no. 2 was born on 15.11.1952.
Defendant no. 4 was born on 9.02.1954. Under Ex.D1
partition deed dated 31.03.1952, first defendant got the
properties totally valued 1,33,392. Six items of the
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counterclaim schedule i.e., Item No. 1 to 6 of defendant
no. 4 also mentioned by defendant no. 5 in her
counterclaim. Keeping all these admitted facts in mind,
now it is to be noted what are all the properties fallen to
the share of defendant no. 1 under registered partition
deed dated 31.03.1952 between him and his brothers
and the properties are as follows.
a) All that piece and parcel of the shop Nos.
146, 147 and 148 situate at Neharunagar,
Seshadripuram, Bangalore measuring East to
West 28 Feet and North to
South 37+39/2bounded by East by: vacant site,
West by: Narasingarayara’s House, North by:
conservancy lane and South by Main Road.
b) All that piece and parcel of House
property bearing No. 148, situated at 3rd
Cross, Chamarajapet measuring East to West
30 Feet and North to South 110 feet, bounded
on East by: Govindaraju Mudaliyar’s House,
West by: Annaiayappa and Channappa’s House,
North by: Conservancy Lane and South by Main
Road.
c) All that piece and parcel of Municipal site
No. 12, situated at Vadigenahalli, Devanahalli
Taluk, measuring East to West 50 feet and
North to South 80 feet bounded on East by:
Site No. 13, West by: Site No. 11, North by:
Road and South by; Conservancy Lane.
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d) The land bearing Sy. No. 60/1 measuring
4 acres situated at Ayyebasapura,
Channarayapattanna Hobli, DevanahalliTaluk
bounded on East by Muniyappa’s land, West by:
Halla, North by: Halla and South by
Munisamappa's Land.
e) The land bearing Sy. No. 60/2 measuring
4- acres 12guntas land situated at Ayyebasapur
a, Channarayapattanna Hobli, DevanahalliTaluk
bounded on East by Muniyappa’s land, West by:
Halla, North by: Halla and South by
Munisamappa's Land.
f) The land bearing Sy. No. 50, measuring
24 acres land situated at Baluvanahalli, Jangama
Hobli. Shidlagatta Taluk, bounded on East by:
Government Land, West by: Shatakundahalli,
Dharmapurada Elle, North by: Venkatapurada
Elle and South by Kalachai’s Land.
g) Piece and parcel of Tarasi House situated at
Joddihosooru, Channarayapattana Hobli,
DevanahalliTaluk bounded on East by Road,
West by: Road, North by: Road and Soth
by: Narayanappa’s House.
h) Piece and parcel of MaligeHouse situated at
Joddihosooru, Channarayapattana Hobli,
DevanahalliTaluk bounded on East by: Vacant
Land, West by: Road, North by: Road and
South by: Aanjamappa’s House.
a) CASH OF Rs. 1,000/-.
b) Silver and Gold Articles Worth Rs. 6,320/-.
c) Insurance Worth Rs. 3,872/-
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d) Ralli Cycle and Furniture’s worth Rs. 459/-
e) Brass Articles Worth Rs. 200/-.
f) Iron Wood Desk Worth Rs. 110/-.
g) Silk Shop Balance Worth Rs. 75,181/-.
Then totally values 1,33,392.
13. The learned counsel for defendant no. 4, 6 and 7 in
his written arguments mentioned regarding what are all
properties purchased by the defendant no. 1 after the
partition of the year 1952. He has submitted that Item
No. 8 of plaint schedule property purchased on
11.01.1957. Item No. 11 of plaint schedule property
purchased on 18.03.1957. Item No. 1 of plaint schedule
property in Site no. 20 purchased on 26.03.1958. Item
No. 1 of plaint schedule property in Site No. 19 purchased
on 26.03.1958. Item No. 12 of plaint schedule property
purchased on 7.12.1959. Item No. 13 of plaint schedule
purchased on 9.11.1961. Item No. 31 of plaint schedule
purchased on 8.12.1961. Item No. 19 of plaint schedule
purchased on 24.07.1963. Item No. 4 of plaint schedule
purchased on 19.02.1964. Item No. 5 of plaint schedule
purchased under 3 sale deed i.e., sale deed dated
5.04.1965, 6.04.1965, 16.10.1966. Item No. 18 of plaint
schedule property purchased on 23.10.1970. Item No. 21
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and 22 of plaint schedule purchased on 20.02.1970. Item
No. 10 of plaint schedule property purchased in the year
1971. Item No. 6 of plaint schedule purchased on
26.07.1972. Item no. 1 of counter claim schedule
property of defendant No. 4, 6 and 7 purchased on
15.04.1974. Item no. 2 of counter claim schedule
property of defendant No. 4, 6 and 7 purchased on
28.10.1970. Item no. 3 of counter claim schedule
property of defendant No. 4, 6 and 7 purchased on
04.05.1966. Item no. 4 of counter claim schedule
property of defendant No. 4, 6 and 7 purchased on
4.02.1968. Item no. 6 of counter claim schedule property
of defendant No. 4, 6 and 7 purchased on 23.10.1970.
The learned counsel for the defendant No. 4, 6 and 7 also
submitted that the Item No. 2, 3, 7, 8, 10, 13, 14 and 16
of plaint schedule properties are all belongs to defendant
no. 2 Smt NA Janaki Bai @ NA Narayanamma. As I already
noted that admittedly, all these items, item No. 1 to 5, 7,
8, 10 to 16, 18, 30, 31, 34 the decree on admission
already passed by allowing IA No. 17 under Order XII Rule
6 of CPC.
14. The plaintiffs even though in the plaint schedule
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claimed remaining properties excluding Item No. 1 to 5,
7, 8, 10 to 16, 18, 30, 31, 34 as ancestral and joint family
properties of themselves and defendant No. 1 to 7. but
during the course of arguments, learned counsel for the
plaintiff vehemently argued that the properties Item No
18 to 42 were added to the plaint at the advise of
defendant no. 1 and 2 inorder to settle the dispute.
Hence by moving IA No. 9 and 10, these properties were
awarded prior to referring this matter to mediation. But
since during mediation, the matter could not be settled.
an application in IA No. 33 was filed by the plaintiff to
delete Item No. 32, 33, 35 and 36 from the plaint
schedule as these properties are self acquired properties
of the plaintiff no. 2 and are not available for partition. He
submitted that even though IA no 33 came to rejected,
but there in no oral or documentary evidence are lead to
show these properties are joint family properties. He
argued that Item No. 40 and 41 are the subject matter of
P and SC No. 66/2022 and same has been disposed by
this court vide final order dated 1.04.2022 as such the
plaint schedule item no. 40 and 41 are not available for
partition. He further argued that Item No 19 to 29 of
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plaint schedule are subject matter of 2 partition deeds
dated 15.10.2015, certified copies of same are marked as
Ex.D4 and Ex.D5 and these partition deeds are duly acted
upon and as such these properties are not available for
partition. He argued that only the properties which are
available for partition are plaint schedule Item No. 6, 9,
17, 37, 38, 39, 42. He argued that all the counterclaim
Item No. 1 to 6 of the written statement of defendant no.
4,6 and 7 are not available for partition and these
properties are not joint family properties.
15. On the other hand, the learned counsel for the
defendant no. 4, 6 and 7 argued that the plaintiff himself
by moving IA No. 9 and 10 added Item No. 19 to 42 of the
plaint schedule properties. The defendant no. 3
transposed himself as plaintiff no. 2 and thereby he
adopted the plaint averments and not filed any additional
pleadings. Hence the plaintiff no. 1 and 2 both are bound
by the pleadings. He argued that the properties Item No.
19 to 29 are all fallen to the share of defendant no. 1
under registered partition deed dated 31.03.1952. He
argued that the very same properties were subject
matter of the partition deed dated 27.03.1945 between
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NA Munivenkatappa and his brother’s son NM
Munishayamappa vide document Ex.D70. He submitted
that as per Ex.D70, partition deed dated 27.03.1975, NA
Munivenkatappa, father of defendant no. 1 got 41 items
of properties towards his share which includes plaint item
No 15, 22 to 29 and Item No. 5 of Counter claim of
defendant No. 4, 6, 7. He argued that as per Ex.D70, Sri
NA Munivenkatappa, father of defendant no. 1 got the
properties valued at Rs 1,31,981.11 annas as his share.
As per Ex.D1 partition deed dated 31.03.1952, the total
value of all the properties shown as 5,27,970. Thus the
properties which acquired by NA Munivenkatappa under
partition deed dated 27.03.1945 enhanced for 4 times
when the partition was taken place in the year 1952. He
argued that since the properties mentioned in Ex.D4 and
5 are the ancestral properties and the plaintiff no.1,
defendant no.5 to 7 who are not the parties to this
document it cannot be recognized as a partition. More
than that, the plaintiffs themselves claimed the share in
the plaint schedule properties. Hence these properties
i.e., Item No. 19 to 29, 32, 33, 35, 36 cannot be excluded.
He argued that except plaint schedule Item No. 6, 9 and
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17, all other plaint schedule properties and written
statement schedule of defendant No. 4,6,7 are all joint
family properties and the plaintiffs and defendants are all
entitled equal share.
16. The learned counsel for the defendant no. 5 also
argued that all the plaint schedule properties, written
statement schedule properties of defendant no. 5 and
defendant No. 4, 6, 7 are the joint family properties of the
plaintiffs and the defendant no. 1 to 7. He argued that
the defendant no. 1 purchased the properties in the
name of plaintiff no. 2 and defendant No. 4 under the
joint family property’s nucleus as a kartha. The defendant
No. 1 purchased the properties in his name as well as in
the name of plaintiff no. 2 and defendant no. 4 out of
joint family fund. Hence all the properties are the joint
family properties and the defendant no. 5 is entitled
1/6th share in all the properties.
17. I have already noted down which are the properties
fallen to the share of defendant no. 1 under registered
partition deed dated 31.03.1952. Prior to proceed further,
it is important to note the plaint averments in para no.
III(1) and (2) of plaint. The plaintiff no. 1 who filed this
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plaint stated that his great grandfather late NA
Munivenkatappa was successful businessman during his
life time. The said A Munivenkatappa is succeeded by his
son defendant no. 1 NM Annaiah. His grandfather
defendant no. 1 NM Annaiah developed the ancestral
properties which he inherited from his father late A
Munivenkatappa by virtue of registered partition deed
dated 31.03.1952 and also has acquired several other
immovable properties from the nucleus of the joint family
income both in his name as well as in the name of his
wife defendant no. 2 Smt Janakibai @ NA Narayanamma
and also in the name of defendant No. 4. In para no III(2)
plaintiff pleaded that joint family consisting of afore
mentioned members(genealogical tree mentioned) do
own several movables and immovable properties. Though
some of the properties have been acquired from the joint
family nucleus, the same are purchased in the names of
defendant no. 1, 2 and 4. Some of the properties have
been inherited by the defendant no. 1 and 2. All the
properties are described in the schedule. Plaintiff being a
coparcner is in joint and constructive possession of all the
joint family properties detailed in the plaint schedule.
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Thus on plain reading of the plaint averments, the
plaintiff no. 1 himself stated in his plaint that his great
grandfather Munivenkatappa was a successful
businessman. His grandfather defendant no. 1 who
succeeded Munivenkatappa inherited the properties
mentioned in partition deed dated 31.03.1952 and
continued the business and developed ancestral
properties and acquired several other immovable
properties from the nucleus of the joint family income in
the name of defendant no.1, defendant no. 2, defendant
no.4. The plaintiff no. 1 has also taken contention that he
being a coparcener is in joint and constructive possession
of all the joint family properties mentioned in the plaint.
Now coming to the written statement contention of
defendant no. 1 to 3 is concerned in para no. 3 of their
written statement, they have admitted the contents of
para no. III(1) and (2). They have admitted that the joint
family of the parties owned several movable and
immovable properties and some of the properties have
been purchased in the name of defendant no. 1, 2 and 4.
They have also admitted that the plaintiff no. 1 is a
coparcener and he is in constructive possession of the
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joint family properties. In para No. 6 of the written
statement, defendant no. 1 to 3 admitted that there was
a family business of father of defendant No. 1 wherein
defendant No. 1 was getting income. The defendant No. 1
and 2 also stated that they have not executed any will or
codicil in respect of any of the suit schedule properties.
However they intend that their share in all the properties
shall go to defendant no. 3 and 4. Thus on plain reading
of plaint averments as well as written statement
contentions of defendant No. 1 to 3, one thing is very
clear that they have admitted that Munivenkatappa who
is the great grandfather of plaintiff No. 1 and father of the
defendant no. 1 was successful businessman and
defendant No.1 who inherited the ancestral properties
under registered partition deed dated 31.03.1952
acquired several other immovable properties from the
nuclues of joint family income. Even though the plaintiff
added several other properties i.e., item No. 19 to 42, the
plaintiffs have not amended the pleadings i.e., body of
the plaint which indicates that even though Item No. 19
to 42 were added subsequently by way of amendment,
the amendment revert back to the date of filing of the
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plaint.
18. The learned counsel for the defendant No. 4, 6 and
7 relied on the judgment of Hon’ble Supreme Court
reported in AIR 1974 SC 471 between Nagindas Ramdas
v/s Dalpatram Locharam @ Brijramand and others
wherein the Hon’ble. Supreme court in para no. 26 of the
judgment held that admission is true and clear are by far
the best proof of the facts admitted. Admission in
pleadings or judicial admission admissible U/s 58 of the
Evidence Act, made by the parties or their agents at or
before the hearing of the case stand on a higher footing
than evidentiary admission. The former class of
admissions are fully bindings on the party that makes
them and constitute a waiver of proof. They by
themselves can be made the foundation of the rights of
the parties. On the other hand, evidentiary admission
which are receivable at the rival as evidence are by
themselves not conclusive. They can be shown to be
wrong. He also relied on the Judgment of Hon’ble
Supreme Court reported in AIR 2002 SC 3669 between
Sampat Kumar V/s Ayyakunnu and another to contend
that once amendment is incorporated in plaint, it relates
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back to the date of the suit- however court can direct in
appropriate cases that it should not relate back to the
date of suit. In my humble view, these principles laid
down by Hon’ble Supreme Court aptly applicable to the
present suit. It is not the case of the plaintiffs is that
while allowing IA No. 9 and 10 under Order VI Rule 17 of
CPC, this court passed any such order it should not relate
back to the date of suit. In the absence of any such order
passed by this court, the amendment made to the plaint
with regarding to adding Item no. 19 to 42 of the plaint
schedule automatically relates back to the date of filing
of the suit. Since there is clear pleading on the side of the
plaintiff that the defendant No. 1 who inherited the
ancestral properties under registered partition deed
dated 31.03.1952 and thereafter he developed the
ancestral properties and out of the joint family nucleus,
acquired several properties indicates that the plaintiff
admitted that there is a joint family nucleus so as to
acquire several properties by the defendant no. 1.
Accordingly he purchased the properties in his name, in
the name of his wife defendant no. 2, in the name of his
son defendant no.4. Such admissions in the plaint and
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the written statement of defendant no. 1 to 3 are judicial
admissions admissible U/s 58 of Indian Evidence Act
which is not required any proof. The defendant No. 3
after passing the judgment on admission of IA No. 17,
transposed himself as plaintiff no. 2.
19. Now coming to the evidence of Plaintiff No. 2/ PW1
is concerned, in his examination in chief, he has deposed
that the properties divided under partition deed dated
31.03.1952 are all properties acquired from the income
earned from the business of Munivenkatappa which was
assisted by his 4 sons. As such, the partition dated
31.03.1952 between co-owners and partners in the
business and the properties which came to his father
defendant no. 1 are his self acquired properties. He has
deposed that under this partition deed, the sundry debts
of sum of Rs 75,181/- said to be receivable from various
dealers and customers and also was saddled with
obligation to repay debt of Rs27,798 payable to
Munishyamappa and sons. He has deposed that it was
not possible to trace the Sundry debtors and recover the
money. Other properties which came to the share of his
father defendant no. 1 were not yielding any income. He
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has deposed that his father defendant no. 1 started the
business of Art silk yarn. His father’s business was totally
a private and independent business. He has deposed that
his father purchased all the properties by his self earned
income. Thus on perusal of the chief examination of PW1,
he has given the evidence which is contrary to the plaint
averments and written statement contentions of
defendant no. 1 to 3. In the written statement of
defendant No. 1 to 3, they have not stated anything
about the defendant no. 1 started his fresh business of
Art Silk yarn after the partition of the year 1952. If at all
the defendant no. 1 is started his own business of Art Silk
yarn after the year 1952, he would have stated the same
in his written statement. On the contrary, the defendant
no. 1 to 3 have not denied the averments made by the
plaintiff in para no. III (1) wherein the plaintiff has stated
that defendant no.1 developed the ancestral properties
and has acquired several other immovable properties
from the nucleus of the joint family income. Even though
the plaintiff in his plaint para no . III(1) pleaded that his
great grandfather Munivenkatappa was a successful
businessman and his grandfather defendant no. 1 who
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inherited the ancestral properties, this averments are not
denied by the defendant no. 1 to 3 in their written
statement. On the other hand, the defendant no. 1 to 3
have admitted that properties have been purchased in
the name of defendant no. 1, 2 and 4 out of joint family
nucleus. In the absence of any such pleadings that the
defendant no. 1 who started the business of Art Silk yarn
for the first time after 1952 and out of his own income he
purchased the properties without utilizing the joint family
fund, such improved version of PW1 without there being
a pleading is not acceptable. Since the oral evidence(in
chief examination as well as in cross-examination) of PW1
is more than 100 pages it is not possible to highlight each
and every depositions of PW1. In his cross-examination
by the learned counsel for the defendant no. 4, 6 and 7
and defendant no.5, for most of the questions, he
answered either that he do not remember or he do not
know. The learned counsel for the defendant no.4, 6 and
7 rightly submitted that PW1 cleverly given answer in
cross-examination for selective questions and by
answering most of the question as either do not
remember or do not know. Since the defendant no. 4,
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6and 7 have taken contention that plaint schedule item
No. 6, 9 and 17 are their self acquired properties of
defendant no. 4 and on the other hand, the plaintiffs
have taken contention that these properties are ancestral
and joint family properties, this court has to give finding
regarding the same. Since the defendant no. 4 and 7
have taken contention that Item No. 1 to 8 of
counterclaim schedule properties are the ancestral joint
family properties of the plaintiffs and defendant no. 1 to
7, this court has to give finding regarding the same. Since
the defendant no.5 has taken contention that all the
properties standing in the name of plaintiff no. 2 and
defendant no. 4 are the joint family properties, this court
has to give findings on the same. Since the plaintiff has
taken contention that item no. 1 and 6 of WS of
Defendant No. 4 is the self acquired properties of Plaintiff
No. 2, this court has to give finding regarding the same.
20. Prior to proceed further it is important to note that
the defendant no. 5 in her written statement mentioned
the very same items of the properties as mentioned by
the defendant no. 4, 6 and 7 in their counterclaim. The
item no. 1 of counterclaim of defendant No. 4,6, and 7 is
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mentioned as Item No. 2 of the counterclaim of
defendant No. 5. Item No. 2 of the counterclaim of
defendant No 4, 6 and 7 is mentioned as item no. 3 of the
counter claim of defendant No. 5. Item No. 3 of
counterclaim of defendant No. 4, 6 and 7 is mentioned as
Item No. 4 of counterclaim of defendant no. 5. Item No. 4
of counter claim of defendant No 4, 6, and 7 is mentioned
as Item No. 7 of counterclaim of defendant No.5. Item No.
5 of counter claim of defendant No 4, 6, and 7 is
mentioned as Item No. 8 of counterclaim of defendant
No.5. Item No. 6 of counter claim of defendant No 4, 6,
and 7 is mentioned as Item No. 9 of counterclaim of
defendant No.5. Thus we can consider item no. 1 to 6 of
counterclaim of defendant No.4, 6 and 7 as Item No. 2, 3,
4, 7, 8, 9 of defendant No. 5 also. Three Extra properties
mentioned by defendant no. 5 in counterclaim are Item
No. 1 which is 50 percent share in Sampige and Savitha
Theaters. The very same property is mentioned as Item
No. 18 in the plaint which is already decreed by decree
on admission as per order on IA No. 17. Item No. 5 of WS
of defendant no. 5 is the property bearing PID No. 66-12-
05(old no.5) situated in 4th main road Madiwala Extension
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standing in the name of defendant no. 4. Item No. 6 is
the property bearing no. 19 /8-1 4 th main road Chinamma
Layout New extension Madiwala Ward No. 172.
21. Neither the plaintiffs nor the defendants have
produced and documents regarding the business of
defendant no.1, plaintiff no. 2 and defendant No.3. PW1
in his cross-examination admitted that he is a tax
assessee. According to him, he is paying tax from the
year 1970. DW2 also deposed that his father is also tax
assessee. If at all PW1, plaintiff No.1 and defendant No. 4
to 7 have produced the income tax returns filed by the
defendant no. 1, defendant no. 4 and plaintiff no. 2, then
this court would have easily ascertained whether the
defendant No.1, plaintiff no. 2, defendant no. 4 have any
independent income of their own inorder to purchase the
properties from their self earnings. PW1 in his evidence
would take contention that whichever properties
purchased in his name under sale deed are his self
acquired properties. Likewise, the defendant No. 4, 6 and
7 have also taken contention that the plaint schedule
properties Item No. 6, 9 and 17 are the self acquired
properties of the defendant no. 4. Except the self serving
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statements of PW1 and DW2, no documents are
produced before this court to show the actual income of
plaintiff no. 2 and defendant no.4. DW1 in her
examination in Chief has deposed that the defendant no.
4 and plaintiff no. 2 except the rental income of the joint
family properties and income derived from the joint
family properties, they have no other source of income.
She has deposed that the business which carried out by
the defendant no.1 also ancestral in nature. There was no
other income to the joint family except income derived
from the joint family properties and business. No doubt
DW1 also not produced any documents to show the
income of defendant No. 1, plaintiff no. 2 and defendant
no. 4.
22. PW1 in his examination in chief has deposed that he
is holding double graduate Bcom and Bsc. He used to
earn from his young age and was assisting his father in
his business. He has deposed that the properties Plaint
Item No. 32, 33, 35 and 36 are all purchased by him
under registered sale deed dated 8.03.1974 for Rs 4,000
Sale deed dated 14.1974 for Rs 2,000, Sale deed dated
25.03.1974 for Rs 2,000, Sale deed 25.07.1996 for Rs
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80,000 respectively from his hard earned money. He has
deposed that he has purchased plot no. 1 Platform Road
Malleshwaram i.e., item no. 6 of counterclaim of
defendant no. 4 acquired by him when he was very
young from his own earnings. His uncles also assisted
him and money also lent by his father which was
recovered from his share in the partnership firm in which
he and his father and Dasamma were the partners. As
such this property is also his self acquired property. He
has deposed that defendant No. 4 has joined the
partnership business on 1.02.1973. But he was joined the
partnership firm in the year 1970. He acquired property
No. 5 Beratena Agrahara Hosuru Main road from his self
earned money of Rs 17,000 under registered sale deed
dated 15.04.1974. He has gifted this counterclaim Item
No. 1 property in favour of the plaintiff no. 1. Even though
PW1 has taken such contention that the written
statement schedule properties of defendant no. 4, 6, 7
are his self acquired properties, inorder to substantiate
this contention, he has not produced any documents.
Plaintiffs have not produced the balance sheet of the
partnership firm to show the actual profit made by the
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partnership firm and actual share in profit given to the
PW1. Even though PW1 has deposed that he had worked
as a manager in Ennem Polpax company from 1972 to
1976 and drawing salary of Rs 1,000 per month. In order
to substantiate these contentions taken in WS, he has not
produced any documents. In the written statement of
defendant no. 1 to 3, no such contentions are taken that
PW1 joined the partnership firm in the year 1970 and he
had income from partnership firm. If at all PW1 had such
share of profit from the partnership firm, he should have
produced the profit and loss account and balance sheet
of the partnership firm inorder to show the actual profit
earned from the partnership firm. PW1 in his examination
not even got marked single documents except
documents Ex.P1 to 15 marked during the course of
cross-examination of DW1 and 2, no other documents are
produced by the plaintiffs. Whenever any suit filed by the
plaintiffs, it is mandatory on the part of the plaintiffs to
produce atleast recent revenue documents. The provision
U /s 133 of Karnataka Land Revenue Act is very clear
which mandates to produce recent revenue documents.
Even though the suit properties situated withing the
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jurisdiction of BBMP, the BBMP records should be
produced before the court. But the plaintiffs have not
produced any such revenue documents and no
documents are marked in the chief examination of PW1.
PW1 has deposed that plaint schedule Item No. 6
purchased in the name of defendant no. 4 under
registered sale deed dated 27.07.1972 as per Ex.D26.
He has deposed that in Ex.D26 itself it is mentioned that
consideration amount of Rs 20,000 was paid in the
presence of defendant No. 1 Annayaiah for defendant no.
4. Hence it is clear that Item No. 6 of plaint schedule is
not the absolute property of defendant no. 4. It is the
property of partnership firm NM Anniah and company
comprising of defendant no. 1 Anniah his sister, Smt
Dasamma and himself. He has deposed that defendant
no 1 was managing this property through defendant no. 4
and in all the returns to the income tax department, this
property has been shown as property belongs to NM
Anniaiah HUF. He has deposed that item no. 9 of plaint
schedule was allotted to Smt. Dasamma as she has lost
her site in Koramangala First block which was purchased
in her name by partnership firm NM Annaiah and
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company. At the time of execution fo sale deed dated
9.09.2002, she was aged about 85 years and she was
represented in that sale deed by defendant no.4. Sale
deed marked at Ex.D34. Since Dasamma passed away
within a year and as in view of BDA norms, building has
to be build within 10 years from the date of allotment, it
was decided to get khataha of the property in favour of
defendant No. 2. inorder to facilitate to avail loan from
bank and financial institution and to put up a structure on
the said property. Consequently Ex.D55 gift deed dated
5.04.2012 was executed by second defendant in favour
of fourth defendant. PW 1 has deposed that Item No. 17
of plaint schedule property purchased from the earnings
of the business of the partnership firm Ms. NM Anniah
and company. Hence this property is liable to divide
equally between him and his brother defendant no. 4.
PW1 has deposed that Plaint schedule Item No. 37, 38, 40
are found to be non existent after the death of defendant
No. 1 and 2. The movable properties Item No. 39 is in
possession of defendant no. 4. Item No. 42 have already
been distributed by defendant no.2. The property
situated at Jayanagara has been self acquired property of
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defendant no. 1 which purchased under registered sale
deed dated 28.10.1970. This property gifted in favour of
plaintiff no. 2. He states that the property situated at
Madiwala is self acquired property of defendant no. 1 who
purchased the same under sale deed dated 4.05.1966 for
sum of Rs. 3,000. Defendant No.1 gifted the same to him
under gift deed dated 7.07.2004 as per Ex.D25. He has
deposed that counterclaim schedule Item No. 1 of
defendant No. 5 in which none of grandchildren,
defendant no. 5, 6 and 7 and plaintiff no. 1 get any share.
He has deposed that from his young age, he learned the
shares and stock trading and doing independent trading
from the year 1970 itself. He made profit in shares and
stocks. Two gift deeds dated 5.03.2004 and 7.07.2004 as
per Ex.D21 and Ex.D8 were inorder to compensate him
for his excess contribution to the family. Hence he prayed
to decree the suit only with respect to the plaint schedule
properties excluding Item No. 32, 33, 35 and 36.
23. Since the main dispute is with respect to the plaint
schedule item No.6, 9 and 17 and the counter claim
schedule item No.1 to 6, it has to be noted under which
instruments these properties purchased. The item No.1 of
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the couther claim schedule property purchased in the
name of plaintiff No.2. This property purchased under
the registered sale deed dated 15.04.1974. Item No.2 of
the counter claim schedule property purchased in the
name of defendant No.1 under the registered sale deed
dated 28.10.1970. Item No.3 of counter claim schedule
property purchased in the name of defendant No.1 under
the registered sale deed dated 04.05.1966. Item No.4 of
the counter claim schedule property purchased under
the registered sale deed dated 04.02.1968 in the name of
defendant No.1. Item No.5 of counter claim schedule
property, which was fallen to the share of defendant No.1
under the partition deed dated 31.03.1952. Item No.6 of
the counter claim schedule property was purchased in
the name of plaintiff No.2 under the registered sale deed
dated 23.10.1970. Item No.6 of the plaint schedule
property purchased in the name of defendant No.4. Item
No.9 of written statement schedule property granted by
the Bangalore Development Authority in the name of
defendant No.2. Item No.17 of the plaintiff schedule
property purchased in the name of defendant No.4 under
the registered sale deed. The plaintiff No.2 would contend
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that item No.1 and 6 of the counter claim schedule
property of defendant No.4, 6 & 7 are his self acquired
properties and he further contended that the item No.2 to
5 of the counter claim schedule property are the self
acquired properties of the defendant No.1 which are all
gifted. Out of which 2 properties gifted in name of
plaintiff No.1, one property gifted in the name of plaintiff
No.2 and one property gifted in the name of defendant
No.5. In the present suit the defendant No.5 would
contended that she is ready to give back the property in
item No.5 as it is a joint family properties.
24. The learned counsel for the defendant No.5 argued
that all the properties which are standing in the name of
defendant No.1, defendant No.2, plaintiff No.2 and
defendant No.4 are all joint family properties. He argued
that since the defendant No.1 got the properties under
the registered partition deed dated 31.03.1952 and also
continuing business fallen to his share, out of joint family
properties and continued the business, he has purchased
the properties in his name in the name of defendant
No.2, in the name of plaintiff No.2 and defendant No.4
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Hence, all these properties are joint family properties.
The learned counsel for the defendant No.5 relied upon
several judgments. He relied on the judgment of Hon’ble
Supreme court reported in (1965) AIR SC 289
(K.V.NARAYANASSMI IYER VS. K.V. RAMAKRISHNA
IYER AND OTHERS) to contend that when the joint
family having sufficient nucleus to acquire the property,
the property in the name of any member should be
presumed to have been acquired from the funds of joint
family. He relied upon the judgment of Hon’ble
Supreme Court reported in AIR 1972 SC 2531
(BAIKUNTHA NATH PARAMNIK (DEAD) BY HIS LRS
AND HEIRS VS. SASHI BHUSAN PARAMANIK), to
contend that when there is joint family property, then the
burden of proof as regards jointness or self acquisition
upon the person who asserts that it is a joint family
property. Proof of the existence of a joint family does not
lead to the presumption that the property held by
members of the family is in joint. IN a case where it is
established that the family possessed some joint property
which from its nature and relative value may have
formed the nucleus from which the property in question
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might have been acquired, the burden shifts to party
alleging self-acquisition to establish affirmatively that the
property was acquired without the aid of joint family
property. He relied upon the ruling of the Hon’ble
Supreme Court reported in AIR 1966 SC 411 Achuthan
Nair vs. Chinnamu Amma and others to contend that
under Hindu Law, when a property stands in the name of
a member of a joint family, it is incumbent upon those
asserting that it is a joint family property to establish it.
When it is proved or admitted that a family possessed
sufficient nucleus with the aid of which the member
might have made the acquisition, the law rises a
presumption that it is a joint family property and the onus
is shifted to the individual member to establish that the
property was acquired by him without the aid of the said
nucleus. This is a well settled proposition of law.
Appalaswamy vs Suryanarayanamurti AIR 1947 P
189 Babubhai Girdharlal vs Ujamlal Hargovandas AIR
1937 Bom Dattatraya Vs Mohan WP No. 8821/2013
d/d 30/9/2014 Bombay High Court (Aurangabad
bench) Coparcenary distinction with Joint Hindu family.
He relied upon the judgment reported in AIR 1970 SC
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14 N.V.Narendranath vs CWT to contend that, A Hindu
joint family consists of all persons lineally descended
from a common ancestor, and includes their wives and
unmarried daughters. A Hindu coparcenary is a much
narrower body than the Hindu joint family; it includes
only those persons who acquire by birth an interest in the
joint or coparcenery property, these being sons,
grandsons and great- grandsons of the holders of the
joint family property for the time being, Property acquired
during the jointness of the family Existence of joint Hindu
Family being not disputed, the property acquired during
the jointness of the family is the property of Joint Hindu
Family and belonged to all the members of the family. He
relied on the judgement between Ramchandra Dubey
and another vs. Dy. Director of Consolidation &
others AIR 1978 All 157 No presumption under Hindu
Law that a business standing in the name of any member
of the joint family is a joint family business to contend
that It is well established that there is no presumption
under Hindu Law that a business standing in the name of
any member of the joint family is a joint family business
even if that member is the manager of the joint family.
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Unless it could be shown that the business in the hands
of the coparcener grew up with the assistance of the joint
family property or joint family funds or that the earnings
of the business were blended with the joint family estate,
the business remains free and separate. The question
therefore whether the business was begun or carried on
with the assistance of joint family property or joint family
funds or as a family business is a question of fact and has
to be proved by evidence. Nadir Ali & ors vs Jt. Director of
Consolidation Sultanpur (2016) 3 ADJ 615. He relied upon
the ruling reported in Ramesh Verma (D) through LRS vs
Lajesh Saxena 2017 AIR SC 494 =(2017) 3 SCC 257
to contend that Hindu Succession Act – Sec. 6 deals with
the question of coparcener in a Mitakshara coparcener
dying after coming into operation of the Hindu succession
Act, without making any testamentary disposition of his
undivided share in the joint family property. The initial
part of Sec. 6 stresses that the Act does not interfere with
the special rights of those who are members of
Mitakshara property except to the extent that it seeks to
ensure the female heirs as specified in Class-I of
schedule, a share in the interest of a coparcener in the
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event of his death by introducing the concept of notional
partition immediately before his death. Proviso to Sec. 6
operates where the deceased has left surviving him, a
daughter or any female as specified in Class I of the
schedule. He relied upon the ruling reported in AIR 1997
SC 1333 – Sher Singh and others vs Gamdoor Singh
to contend that to contend that Hindu law – coparcenary
property existence of joint family not disputed property
held by family assumes character of coparcenary
property finding of court that every member of family
was entitled to 1/6th share in property – Proper. He relied
upon the ruling reported in AIR 1992 AP 270 – Purna Bai
and others vs Rachhoddas and others Hindu Law – joint
family – self acquired property of member – proof
members doing family business – properties purchased in
the name of members – plea that properties were
purchased by each member from his self-earnings sale
deeds and witnesses to prove purchase from self-earning
however not produced by members – held, properties
were joint family properties. He relied upon the ruling
reported in AIR 2003 SC 1880 – Madanlal (dead) by
LRs and others vs Yoga Bai (dead) by LRS to
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contend that Hindu Law partition – property in question
raised and developed by joint efforts of father and his
sons – it is joint family property – amenable for partition
among father and his sons. Hindu Law Joint
family – existence of property is not a necessary
incident. He relied upon the ruling reported in AIR 1926
Madras 273 Janakiram Chetty vs G.C.Nagamony Mudaliar
Hindu Law — partition possession of property is not
necessary to decide status. He relied upon the ruling
reported in AIR 1969 SC 1330 Ram (dead) by LRs – State
Bank of India vs Ghamandi to contend that The incidents
of coparcenership under the Mitakshara law are-(1) the
lineal male descendants of a person upto the third
generation, acquire on birth ownership in the ancestral
properties of such person;(2) Such descendants can at
any time work out their rights by asking for partition;(3)
till partition, each member has got ownership extending
over the entire property, conjointly with the rest;(4) as a
result of such co-ownership the possession and
enjoyment of the properties is common;(5) no alienation
of the property is possible unless it be for necessity
without the concurrence of the coparceners; and (6) the
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interest of a deceased member lapses on his death to the
survivors. He relied upon the ruling reported in AIR 1954
SC 379 Srinivas Krishnarao Kango vs Narayan
Devjoi Kango & others to contend that Hindu
Law – joint family – self-acquisition existence of joint
family property – burden of proof – proof of the existence
of a joint family does not lead to the presumption that
property held by any member of the family is joint and
the burden rests upon anyone asserting that any item of
property was joint to establish the fact. But where it is
established that the family possessed some joint property
which from its nature and relative value may have
formed the nucleus from which the property in question
may have been acquired, the burden shifts to the party
alleging self-acquisition to establish affirmatively that the
property was acquired without the aid of the joint family
property. – Important thing to consider is the income
which the nucleus yields. He relied upon the ruling
reported in AIR 1988 Cal 375 Girindra Nath Mukherjee &
others vs Soumen Mukherjee & others to contend that
Benami property purchased in name of minor sons by
father – minors have no means to acquire properties at
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relevant time consideration money proved to be paid by
father – sons sere not intended to be real owners of
properties the contrary father himself asserting his title
and possession held properties could be presumed to be
acquired by father for his own benefit and transactions
were benami transaction doctrine of advancement not
applicable.
25. On the other hand, the learned counsel for the
plaintiff argued that what is the ancestral property is
clearly described, defined, and explained by the Division
Bench of Hon’ble High Court in 2009 (2) KCCR 1206
(DB) (SRI.K.MADHAVA RAJA NAYAK VS. SRI. K.
SRIDHARA NAYAK AND OTHERS), wherein the Hon’ble
High Court vide para 16 and 17, it is held that co-
parcenary properties means and includes (1) ancestral
property (2) acquisition made by the coparcenrs with the
help of ancestral property (3) joint acquisitions of the
coparceners even without such help provided, there was
no proof of intention on their part that the property
should not be treated as joint family property and (4)
separate property of the coparceners thrown into
common stock. The term ancestral property is arising in
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Hindu law. That means only such property as is inherited
by a male from father, father’s father and father’s
father’s father and such inheritor’s son, son’s son and
son’s son’s son get an interest in it by birth. Hence,
unless there is a nucleus of ancestral property with the
aid of which the acquisitions are made, the acquisitions
cannot be included within the concept of coparcenary
property available fro partition between the members of
the joint family. The coparcenary property is the property
held by a coparcenary absolutely and free of all claims
from the rest of the coparceners which is known as
separate or self acquired property. He has relied upon
the judgment of Hon’ble Supreme court which is reported
in 2016 4 SCC PG 68 (UTTAM VS. SAUBHAG SINGH
AND OTHERS) and submitted that in this case the
Hon’ble Supreme Court held that, some other judgments
were cited before us for the proposition that joint family
property continues as such even with a sole surviving
coparcener, and if a son is born to such coparcener
thereafter, the joint family property continues as such,
there being no hiatus merely by virtue of the fact there is
a sole surviving coparcener. Dharma Shamrao Agalawe v.
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Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand,
(2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC
419, were cited for this purpose. None of these
judgments would take the appellant any further in view of
the fact that in none of them is there any consideration of
the effect of Sections 4, 8 and 19 of the Hindu Succession
Act. The law, therefore, insofar as it applies to joint family
property governed by the Mitakshara School, prior to the
amendment of 2005, could therefore be summarized as
follows:-
(i) When a male Hindu dies after the
commencement of the Hindu Succession Act,
1956, having at the time of his death an
interest in Mitakshara coparcenary property, his
interest in the property will devolve by
survivorship upon the surviving members of the
coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained
in Section 30 Explanation of the Act, making it
clear that notwithstanding anything contained
in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property
that can be disposed of by him by will or other
testamentary disposition.
(iii) A second exception engrafted on
proposition (i) is contained in the proviso to
Section 6, which states that if such a male
Hindu had died leaving behind a female relative
specified in Class I of the Schedule or a male
relative specified in that Class who claims
through such female relative surviving him,
then the interest of the deceased in the
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testamentary or intestate succession, and not
by survivorship.
26. (iv) In order to determine the share of the
Hindu male coparcener who is governed by
Section 6 proviso, a partition is effected by
operation of law immediately before his death.
In this partition, all the coparceners and the
male Hindu’s widow get a share in the joint
family property.
27. (v) On the application of Section 8 of the
Act, either by reason of the death of a male
Hindu leaving self-acquired property or by the
application of Section 6 proviso, such property
would devolve only by intestacy and not
survivorship.
28. (vi) On a conjoint reading of Sections 4, 8
and 19 of the Act, after joint family property
has been distributed in accordance with section
8 on principles of intestacy, the joint family
property ceases to be joint family property in
the hands of the various persons who have
succeeded to it as they hold the property as
tenants in common and not as joint tenants.
29. He relied on the judgment of Hon’ble Supreme
Court in CIVIL APPEAL No.5401/2025 (ANGADI
CHANDRANNA VS. SHANKAR & OTHERS), wherein in
para 17 of the judgment it is held that, it cannot be
disputed that the properties divided among Defendant
No.1 and his brothers through partition deed dated
09.05.1986, are joint family properties. However, as per
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Hindu law, after partition, each party gets a separate and
distinct share and this share becomes their self-acquired
property and they have absolute rights over it and they
can sell, transfer, or bequeath it as they wish.
Accordingly, the properties bequeathed through partition,
become the self-acquired properties of the respective
sharers. By relying on these citations, the learned
counsel for the plaintiff argued that the properties which
fallen to the share of defendant No.1 under the partition
deed dated 31.05.1952 becomes separate / self acquired
properties and the plaintiffs, defendants No.2 to 7 are not
having any share in the properties fallen to the share of
defendant No.1. He further argued that all the acquisition
made by the defendant No.1 subsequent to the partition
of the year 1952 is his self acquired property and
separate property.
30. On the other hand the learned counsel for the
defendants No.4, 6 & 7 argued that, the properties which
were fallen to the share of defendants under the
registered partition deed dated 31.03.1952 was also
shown in the partition deed dated 27.03.1945 marked at
Ex.D70 which was fallen to the share of Munivenkatappa,
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who is the father of the defendant No.1. he argued that
under Ex.D70 partition deed dated 27.03.1945
Munivenkatappa father of the defendant No.1 got 41
items of properties towards his share which included the
plaint schedule item No.15, 22 to 29 and item No.5 of
counter claim schedule property of defendants No.4, 6 &
7. He submitted that under Ex.D70 the land in
Sy.No.50/A, 50/B, 50/C, 50/D measuring 24 acres of land
and also in Sy.No.50/1, 50/2, 50/3 measuring 12 acres of
Kushki land totally 36 acres of land fallen to the share of
Munivenkatappa. Apart from this he also received
garden land bearing Sy.No.67/4, measuring 28 guntas of
land and Sy.No.67/6 measuring 25 guntas of land
situated at Baluvanahalli village in which 200 coconut
fruit yield trees. In addition to this he also got residential
premises, non-residential properties which were yielding
large rental income. He argued that after division on
27.03.1945 Munivenkatappa along with his four sons
including defendant No.1 continued the family business
and acquired large number of properties and at the time
of partition dated 31.03.1952 the properties enhanced
four times. Under partition deed dated 31.03.1952 vide
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Ex.D1 out of total property worth Rs.5,27,970/-, property
worth Rs.1,05,594/- fallen to the share of defendant No.1.
The defendant No.1 also continued the business. Hence,
out of properties fallen to his share and the business he
was able to acquired the properties after 1952. He
argued that the plaintiff in the plaint itself has stated that
his great grand father Munivenkatappa was successful
businessman which continued by defendant No.1 and the
defendant No.1 who succeeded the properties under the
partition deed dated 31.03.1952 acquired several
properties in his name, in the name of defendant No.2
and defendant No.4. The very admission given by the
plaintiff in the plaint as well as in the written statement
of the defendants No.1 to 3 is sufficient to hold that the
defendant No.1 has purchased the properties in his name
and in the name of defendant No.2 in the name of
plaintiff No.2 by using joint family property funds. Hence,
it cannot be held that the properties which were given to
the share of defendant No.1 under the registered
partition deed dated 31.03.1952 is his separate
properties.
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31. The learned counsel for the defendants No.4, 6 & 7
relied on the recent judgment of Hon’ble Superme Court
decided on 05.02.2026 in CIVIL APPEAL No.2129-2130
/ 2012 DECIDED ON 05.02.2026 (DORAIRAJ VS.
DORAISAMY (DEAD) THROUGH LRS AND OTHERs)
and submitted that facts of this suit and cited decisions
are similar and in this judgment the Hon’ble Supreme
Court upheld the judgment of Hon’ble High Court and
dismissed the Civil appeal. He relied on the judgment of
Hon’ble High Court of Karnataka in RFA No.1905 / 2005
decided on 09.12.2020 (C.N. LEELVATHI VS.
M.NARAYANAPPA AND OTHERS).
32. The learned counsel for the defendants No.4, 6 & 7
relied on the judgment of Hon’ble Supreme Court
reported in 2020(9) SCC-1 (VINEETA SHARMA VS.
RAKESH SHARMA AND OTHERS) and submitted that
the daughters are became coparceners by birth. He relied
on the judgment of Hon’ble Supreme Court in CIVIL
APPEAL No.3159 – 3160 /2019 (NEELAM GUPTA VS.
RAJENDRA KUMAR). He also relied on same judgment
relied by the learned counsel for the defendant No.5
reported in AIR AIR 1954 SC 379 (SRINIVASA KRISHNA
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RAO KANGO VS.NARAYAN DEVJI KANGO) and submitted
that since there is a property allotted to the defendant
No.1 under the partition of the year 1952 and these
properties and business which he continued was enable
him to acquire the properties it shall be presumed that all
the properties which purchased by the defendant No.1 in
his name in the name of his wife, defendant No.2, in the
name of plaintiff No.2 should be considered as joint
family properties.
33. I have appreciated rival contentions. I have already
mentioned what are all properties fallen to the share of
defendant No.1 under the registered partition deed dated
31.03.1952. DW2 in his further examination in-chief by
producing the documents given his further evidence. DW
2 has deposed that huge number of properties such as
agricultural, house property and movable properties
came to the share of his great grand father
Munivenkatappa under the registered partition deed
dated 27.03.1945. He has deposed that under partition
deed dated 27.03.1945 between Munivenkatappa and his
brother’s son N.M.Muniswamappa they divided the
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properties between them and in that partition his great
grand father Munivenkatappa got his share about 41
items of the properties including item No.5 of counter
claim schedule, item No.15 of the plaint schedule,
Sy.No.50/A, 50/B, 50/C, 50/D, measuring 24 acres of land
and also Sy.No.50/1, 50/2, 50/3 measuring 12 acres
kushki land, totally measuring 36 acres of Kushki land
besides other properties. In addition, his great grand
father also got sy.No.67/4, measuring 28 guntas of land,
Sy.No.67/6 measuring 25 guntas of land situated at
Belavana village, in which there were 200 coconut fruit
yielding trees. Total value of the properties fallen to the
share of Munivenkatappa was Rs.1,31,981.11 anas. In
order to substantiate this contention he has produced
and got marked Ex.D70 certified copy of registered
partition deed dated 27.03.1945. Ex.P70(a0 is the typed
copy of Ex.D70.
34. During the course of cross examination of DW 2 by
the learned counsel for the plaintiff DW 2 has denied the
suggestion that Ex.D70 is the concocted document. It is
pertinent to note that the document Ex.D70 is the
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certified copy of the partition deed dated 27.03.1945 is
30 years old document and it has evidentiary value
u/S.90 of Indian Evidence Act. DW2 has deposed that
the defendant No.1 under Ex.D1 got 8 properties towards
his share which include item no.15, 23 to 29of plaint
schedule and item No.5 of counter claim schedule
property. But PW 1 has falsely contended that his great
grand father Munivenktappa did not receive any
properties as ancestral properties. DW 2 has deposed
that the plaint schedule item No.23 to 29 were came to
be granted in favour of N.A.Muniswamappa (son of
N.A.Munishamappa elder brother son of his great grand
father N.A.Munivenkatappa) which are also joint family
properties. The same properties came to be allotted to
the share of great grand father N.A.Munivenkatappa
under the registered partition deed dated 27.03.1945. he
has also produced original grant certificate dated
14.04.1938 which is marked at Ex.D72. DW 2 has
produced original valuation certificate dated 20.08.1970,
which is marked at Ex.D73 and also produced certified
copy of the record of rights of the year 1970, which is
marked at Ex.D74, certified copy of the record of rights of
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the year 1976 marked at Ex.D75,certified copy of index
of the land of the year 1970, which is marked at Ex.D76.
The certified copy of the record of rights of the year 1970
which is marked at Ex.D77. DW 2 also produced and got
marked the documents Ex.D78 to D84 RTC of the year
1965-66 to 1969-70. Even though the plaintiff during the
course of cross examination of DW 2 would contend that
all these documents are created and concocted
documents in order to substantiate such contentions, the
plaintiffs have not produced any counter documents. All
these documents marked at Ex.D70 to D84 are 30 years
old documents which are having evidential value. The
oral evidence of DW2, which is supported by the
documents Ex.D70 to 84 is sufficient to hold that under
the partition of the year 1952 as per Ex.D1, the
defendant No.1 got ancestral properties as his share.
The plaintiff in his plaint itself stated that his great grand
father Munivenktappa was successful businessman
during his life time and his grand father defendant No.1
N.M.Annaiah succeeded the properties of
Munivenkatappa and developed the ancestral properties
inherited from Munivenkatappa by virtue of the partition
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deed dated 31.032.1952 and thereafter the defendant
No.1 acquired several immovable properties from nucleus
joint family income. When there is a specific pleadings
on the side of the plaintiff as well as defendants No.1 to 3
that the defendant No.1 N.M.Annaiah who had inherited
the properties from his father Munivenkatappa and he
had developed the properties and business and acquired
immovable properties from the nucleus of joint family
income, no other proof is required to say that the
defendant No.1 after 1952 partition started to purchase
the properties out of ancestral properties income and
also from by developing the business inherited from his
father Munivenkatappa. I have gone through the
decisions cited by the learned counsel for the plaintiff
reported in 2016 4 SCC PG 68 (UTTAM VS. SAUBHAG
SINGH AND OTHERS) and judgment of Hon’ble High Court
of Karnataka reported in 2009 (2) KCCR 1206 (DB)
(SRI.K.MADHAVA RAJA NAYAK VS. SRI. K. SRIDHARA
NAYAK AND OTHERS). There is no dispute regarding
principles laid down by the Hon’ble Supreme Court and
Hon’ble High Court in these cited decisions. But in the
present suit the plaintiff as well as defendants No.1 to 3
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themselves admitted in the pleadings that the defendant
No.1 who had succeeded the ancestral properties from
his father’s development including business development
and purchased the immovable property from nucleus of
joint family income, in his name and in the name of his
wife defendant No.2, in the name of defendant No.4, no
other proof is required. More than that when we
compared the documents Ex.D70 to D84 with Ex.D1
partition deed, one thing is very clear that the defendant
No.1 inherited the ancestral properties which were fallen
to the share of his father under the registered partition
deed dated 27.03.1945. The plaintiff No.1, defendant
No.5, defendants No.6 & 7 who are the grand children of
defendant No.1 are the third generation. Hence, in view
of the judgment of Hon’ble Supreme Court in VINEET
SHARMA‘s case the defendant No.5 acquired right over
the ancestral properties by birth. Likewise, the plaintiff
No.1, defendants No.6 & 7 are also acquired their rights
by birth. Since there is no documents on the side of the
plaintiff to substantiate that other than joint family
income the defendant No.1 had other income of his own,
it has to be presumed that the properties are purchased
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by the defendant No.1 in his name, in the name of his
wife and in the name of plaintiff No.2 and defendant No.4
are all joint family properties
35. The defendants No.4, 6 & 7 as well as defendant
No.5 have taken contention that the written statement
schedule item No.1 property is the joint family property
which purchased in the name of plaintiff No.2 by the
defendant No.1 by using joint family funds. The
documents Ex.D22 certified copy of the sale deed is
marked which would go to show that this property item
No.1 of written statement schedule purchased on
15.04.1974. PW 1 in his examination in-chief has
deposed that this property item No.1 was purchased by
him from his self earned money of Rs.17,000/-. In the
written statement of the defendants No.1 to 3 they have
taken contention that the defendant No.3 is qualified
well-educated person and during his young days, he was
working as Manager of the company and he was drawing
salary of Rs.1,000/- p.m. during those days. He was
working as Manager in Ennem Polpax company from
1972 to 1976. Out of his own income he had purchased
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this property. The learned counsel for the defendant
No.5 argued that at the time when this item No.1 was
purchased plaintiff No.2 was aged 19 years 5 months. At
that relevant point of time, the plaintiff No.2 did not had
any source of income to purchase the property. This
property was purchased in the name of plaintiff No.2 by
using joint family income. The learned counsel for the
defendant No.4, 6 & 6 submitted that at the time of
purchasing item No.1 of written statement schedule
property the plaintiff No.2 was hardly 22 years and he
was student and he had no source of income of his own.
In this suit, even though the plaintiff No.2 has taken such
contention that he was working as Manager in Ennem
Polpax company and he had his independent source of
income, he has not produced any documents. PW 1 has
claimed that he is Income Tax assessee. If at all he was
income tax assessee he should have produced income
tax returns statement. Even though the plaintiff No.1 has
taken contention that he had joint partnership firm in the
year 1970 itself and getting the share in the property,in
order to substantiate this contention also he has not
produced any documents. Admittedly, the plaintiffs and
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defendants No.1 to 7 living together in the same house
till 2006-07. PW 1 in his cross examination admitted the
suggestion that during the year 2006-07 all of them the
plaintiffs and defendants No.1 to 7 were residing in the
plaint schedule item No.1. They were not divided any
properties till the year 2015. When the plaintiffs and
defendants No.1 to 7 were living together in the same
house and messing in common kitchen it cannot be held
that the plaintiff No.2 and defendant No.4 are having
their separate income so as to purchase the properties
of their own. If at all the plaintiff No.2 and defendant
No.4 had any such separate income they should have
produced the bank statement to show that they were
getting separate income. But in this suit absolutely there
is no documents to show that the plaintiff No.2 had his
separate income so as to purchase the counter claim
schedule item No.1 of the defendants No.4, 6 & 7.
Hence, it has to be held that the counter claim schedule
item No.1 property of the written statement of
defendants No.4, 6 & 7 is the joint family property.
36. The counter claim schedule item No.2 of the
property purchased by the defendant No.1 under
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registered sale deed dated 28.10.1970. In this regard
document Ex.D20 certified copy of the sale deed is
marked. PW 1 has deposed that this property purchased
by his father from self earned income. On the other hand
DW1 and 2 have stated that it was purchased out of joint
family income. As I already noted that the defendant
No.1 who had inherited the ancestral property and the
business started to purchase the properties in 1956
onwards. There is no documents on the side of the
plaintiffs to show that the defendant No.1 had his own
income other than the income from the ancestral
properties and the business which he was continued after
partition. Hence, it can be held that the suit schedule
item No.2 also joint family property purchased by the
defendant No.1 out of joint family funds.
37. The counter claim schedule item No.3 was
purchased by the defendant No.1 under registered sale
deed dated 04.05.1966. In this regard document Ex.D23
is marked in the cross examination of DW 1. The counter
claim item No.4 property purchased by the defendant
No.1 under the registered sale deed dated 04.02.1968.
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This property in item No.4 was given to defendant No.1
under the sale certificate dated 04.02.1968 executed by
Yelahanka Town Municipal counsel, Bengaluru. Absolutely
there is no document produced by the plaintiffs to show
that the defendant No.1 had any other income other than
the income from the ancestral properties and from the
business which he continued from his father and from the
ancestral joint family funds. As I already observed that in
the plaint as well as in the written statement of
defendants No.1 to 3 they themselves stated that the
defendant No.1 who had succeeded ancestral properties
and business developed the same and purchased several
properties in his name, in the name of his wife and in the
name of defendant No.4. Under such circumstances,
without there being any evidence on the side of the
plaintiffs to show that there was any independent income
of defendant No.1 other than the income from the
properties inherited by the ancestors the defendant No.1
and he had any independent source of income, it cannot
be held that the counter claim schedule item No.3 and 4
are the self acquired properties of the defendant No.1.
38. With regarding to counter claim, schedule item No.5
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of defendants No.4, 6 & 7 is concerned this property was
fallen to the share of defendant No.1 under the registered
partition deed dated 31.03.1952. This court already
observed that this property originally belongs to father of
the defendant No.1. In this regard DW 2 has got marked
document Ex.D70. Hence it can be held that item No.5 of
counter claim of D4,6,7 is the ancestral and joint family
property.
39. In this suit, on the side of the plaintiffs in
examination in chief of PW1, no documents are marked.
During the course of cross-examination of DW1 and 2, 15
documents are marked on the side of the plaintiffs. Ex.P 1
is the notarized attested true copy of death certificate of
NM Anniah who died of 1.11.2020. There is no dispute
regarding death of defendant no. 1. Ex.P2 is the portion
of WS filed by defendant no. 1 to 3 which confronted to
DW1. Ex.P3 is the certified copy of orders passed on IA
No. 3 in OS No. 1927/2021 to show that the plaint filed by
DW1/defendant no. 5 came to be rejected under Order VII
Rule 11 of CPC. Ex.P4 is the certified copy of plaint in OS
No. 5958/2022 filed by the present defendant No. 5/DW1
against the present plaintiffs seeking partition with
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respect to the properties on which decree on admission is
passed in this suit. Ex.P5 is the certified copy of orders
passed on IA No. 1, 2 and 5 in OS No. 5958/2022 by
learned 39th Addl City Civil Judge(CCH 39) Bangalore
wherein by allowing IA No. 5 filed under Order VII Rule 11
CPC plaint came to be rejected on the ground that there
is no cause of action to file the second suit for partition
when there is a comprehensive suit in OS No.
1990/2018(present suit) is pending. Ex.P6 are 9
photographs with regarding to jewels. Ex.P7 is reply
notice dated 12.12.2022 issued by DW1 to the SHO of
Chanarayapatna Police Station. Ex.P8 is the certified copy
of order sheet in CC No. 2652/20223. Ex.P9 is the
certified copy of FIR in Crime No. 80/2021 registered by
Devanahalli Police against the DW1 based on the first FIS
lodged by the plaintiff no. 2. Ex.P10 is the certified copy
of chargesheet filed against DW1. Ex.P11 is the certified
copy of WS filed in OS No. 4858/2022 in suit filed before
CCH-6 Bangalore. Ex.P12 is the certified copy of plaint in
OS No. 4858/2022 filed by plaintiff no. 2 and his wife
against defendant no. 5 and 2 others. Ex.P13 is the
certified copy of IA No. 1 filed in OS No. 4858/2022.
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Ex.P14 is the certified copy of Memo filed in OS No.
4858/2022. Since all these documents Ex.P1 to Ex.P14
are admitted by DW1 in her cross-examination, hence
these documents are marked. Ex.P15 is the copy of
partnership deed marked in the cross-examination of
DW2 but DW2 has deposed that this document is
incomplete document. Thus on perusal of the documents
marked on the side of the plaintiffs, none of the
documents are helpful to the plaintiffs to say that written
statement schedule properties are self acquired
properties of defendant no. 1 and plaintiff no. 2. There is
absolutely no documents on the side of the plaintiffs to
show the plaintiff no. 2 had his separate income so as to
purchase the properties in his name.
40. PW1 has deposed that counterclaim Item No. 6 of
the property is his separate property as he acquired the
same when he was very young from his own earnings
and the money received from his uncle for assisting them
in their shares and stocks trading business and the
money lent to him by his father which was recovered
from his share in the partnership firm. Inorder to
substantiate such contention taken by PW1, he has not
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produced any documents. DW2 in his examination in
chief has deposed that Item No. 6 of his counterclaim
Schedule was purchased under registered sale deed
dated 23.10.1970. He has deposed that defendant no. 1
purchased this property in the name of plaintiff no. 2. At
the time of purchase of this property, plaintiff no. 2 was a
minor and he had no source of income at all. This
property came to be purchased by the defendant no. 1 as
a kartha of Hindu undivided joint family out of nucleus of
joint family income. Ex.D56 certified copy of the sale
deed is marked through DW2. The learned counsel for the
plaintiffs vehemently argued that since this property in
item No. 6 already acquired for road, it is not in existence
and it cannot be divided. He relied on the judgment of
Hon’ble Apex Court on special Reference No. 1/1974
reported in AIR 1974 SC Pg No. 1682. He submitted that
at Pg No. 1686, para No. 15 at 8th line, it is held that
“The Maxim of law impotentia excusat legem is
intimately connected with another maxim of law lex non
cogit ad impossibilia. Impotencia excusat legem is that
when there is a necessary of invincible disability to
perform the mandatory part of the law that impotentia
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excuses. The law does not compel one to do that which
one cannot possibly perform. “where the law create a
duty or charge, and the party is disabled to perform it,
without any default in him, and has no remedy over it,
there the law will in general excuse him.”
He argued that this court cannot partition Item No. 6 of
counter-claim Schedule property as same is non existent.
But the learned counsel for defendant No. 5 and counsel
for defendant No. 4, 6 and 7 argued that at the time of
execution of this sale deed dated 23.10.1970, the plaintiff
no. 1 was aged about 17 years. He was minor. The first
advance amount of Rs 20,000 was paid on 6.08.1965 to
purchase this property and second advance of Rs 49,311
was paid on 30.01.1967. At the time of payment of first
advance, plaintiff no. 2 was 13 years of age and at the
time of payment of second advance, plaintiff no. 2 was
aged 15 years. That itself shows the entire sale
consideration amount was paid by defendant no. 1. There
is some force in the arguments of the learned counsels
for defendant no. 4 to 7. It is not in dispute that plaintiff
no. 1 was born of 15.11.1952. As on the payment of first
advance on 6.08.1965, he was aged 13 years. As on
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payment of second advance on 30.01.1967, he was aged
15 years. Even as on the registration of sale deed on
23.10.1970, he was aged 17 years and 11 months. He
was minor. The contention of the plaintiff no. 2 is that he
started to earn in his young age is not believable. Plaintiff
no. 2 holding 2 graduation i.e., BCom and Bsc by
attending regular classes. Under such circumstances, it is
very difficult to believe the version of plaintiff no. 2 that
he had his own income during his minority. There is clear
mention in the sale deed Ex.D56 regarding consideration
amount passed from defendant no. 1. The defendant No.
1 who was the kartha of the family developed the
properties succeeded by his father and purchased several
properties in his name, in the name of defendant no.2 as
per the own plaint averments of the plaintiff. Under such
circumstances, it can be held that the counterclaim item
no. 6 of defendant no. 4, 6 and 7 was acquired by the
defendant no. 1 out of joint family fund. I have gone
through the decision cited by the learned counsel for the
plaintiff reported in AIR 1974 SC 1682. In my humble
view, this cited decision can be distinguished on facts.
Even though it is admitted fact that the property Item No.
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6 of counterclaim already acquired by the BBMP and the
amount already deposited, since inorder to deposit such
amount, the main base is the immovable property,hence
this court can divide the compensation amount. It is
pertinent to note that the plaintiff no. 1 and 2 have
already received 1/6th share in the deposited
compensation amount. It at all this compensation amount
exclusively belongs to plaintiff no. 2, what made the
plaintiff no. 1 to claim 1/6th share in the compensation
amount is not made known. The plaintiff no. 1 who
initiated this suit in the plaint claimed one sixth share in
the plaint schedule properties. The oral evidence of DW1,
DW2 and document Ex.D56, copy of sale deed would go
to show that the counterclaim item no. 6 is the joint
family property of the plaintiffs and defendant no. 4 to 7.
41. The learned counsel for the plaintiffs much argued
that the plaintiff no. 1 added plaint schedule Item No. 19
to 29 because with hope that the matter would amicably
settle. He argued that since there is a partition deed as
per Ex.D4 and Ex.D5 which are duly acted upon, these
properties item no. 19 to 29 are not available for
partition. The learned counsel for the defendant no. 5 as
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well as the defendant No. 4, 6 and 7 have submitted that
Plaint Item No. 19 to 29 are the subject matter of the
partition deed dated 31.03.1952 which are the ancestral
property of defendant no. 1. The learned counsel for
defendant no. 4, 6 and 7 submitted that when the
defendant no. 4 moved IA No 24 under Oder XII Rule 6
seeking to pass preliminary decree for partition and
seperate possession of these Item No. 19 to 29 of the
plaint schedule properties, on the basis of registered
partition deeds dated 15.10.2015, the defendant no.3
(now transposed as plaintiff no. 2 filed detained objection
by contending that both partition deeds dated
15.10.2015 cannot be construed as undisputed
documents. It is contended that these partition deeds are
incomplete documents and they have not been
completely acted upon. Hence by considering the
objection of the defendant No. 3, now transposed as
plaintiff no. 2, this court was pleased to reject IA No. 24.
There is some force in the arguments of the learned
counsel for defendant no. 4, 6 and 7. This court already
passed orders on IA No. 24 as per order dated
29.05.2023 and IA No. 24 came to be rejected by
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considering the objection raised by defendant no. 3( now
transposed as plaintiff no. 2) that partition deeds dated
15.10.2015 cannot be construed as undisputed
documents. Since the defendant no. 3(plaintiff no. 2)
himself while filing the objection on IA No. 24 raised such
contention that the partition deeds dated 15.10.2015 are
not acted upon, the plaintiffs cannot approbate and
reprobate. More than that the defendant no. 5, 6 and 7
and plaintiff no. 1 are not parties to the documents Ex.D4
and Ex.D5. Since the properties plaint schedule Item No.
19,20, 23 to 29 are ancestral properties, the defendant
No. 5 is entitled for equal share in these properties along
with her father plaintiff no. 2 and brother plaintiff no. 1 as
one branch in view of the judgment of Hon’ble Supreme
Court in Veenetha Sharma case. The plaint schedule Item
no. 19 to 29 are the joint family properties of the
plaintiffs and defendant no. 4 to 7.
42. So far as item No.6 and 17 of the plaint schedule
property is concerned, it is the contention of the
defendant No.4 is that it is his self acquired properties,
but the plaintiffs and the defendant No.5 have taken
contention that item No.6 and 17 of the plaint schedule
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properties are the joint family properties of the plaintiffs
and defendants. PW 1 in his examination in-chief has
deposed that this property in item No.6 is situated at
Sy,No.49/5 of Bommanahalli Village, Begur Hobli has
been purchased in the name of defendant No.4 for a sum
of Rs.20,000/- by the 1st defendant under the registered
sale deed dated 27.07.1972, which is marked as Ex.D26
through DW 2. He has deposed that in Ex.D26 itself it is
clearly mentioned in handwriting of Sub-Registrar in the
endorsement written by the Sub-Registrar, Bengaluru
South Taluk that amount of Rs.20,000/- was paid in his
presence by N.M.Annaiah for N.A.Ravigopal to
K.R.Rangappa the vendor of the sale deed. DW 2 in his
examination in chief has deposed that the property plaint
schedule item no.6 is absolutely belongs to his father
defendant No.4. He has deposed that his father is a B.Sc.
and BE graduate . He did is B.Sc. in the National College
and BE Electronics from BMS College of Engineering,
Basavanagudi. His father beside looking after the joint
family properties and joint family business and he was
also having separate avocation out of his skill as
Engineer and started earning from a young age. His
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father was into construction activity and earned
substantial income which constitute separate and self
acquisition out of his separate income. He has deposed
that his father purchased item No.6 & 17 of the plaint
schedule property out of his separate income. Hence,
these two properties are his father’s self acquired
properties. On the other hand, DW1 / defendant No.5
would contend that the properties which are purchased in
the name of defendant No.4 are purchased out of joint
family funds. The learned counsel for the defendant No.5
argued that plaint schedule item No.17 was purchased in
the name of 4th defendant by the defendant No.1 under
the registered sale deed dated 30.08.1993 out of joint
family funds. Except taking the care of joint family
properties standing in the name of defendant No.1
defendant No.4 had no other income. PW 1 in his
examination in-chief has deposed that item No.7 of the
plaint schedule property has been purchased from the
earnings from business of partnership firm M/s.
N.M.Annaiah and Co. As such it is the property belongs to
the plaintiff No.2 and defendant No.4. I have appreciated
rival contentions and perused the records. On perusal of
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document Ex.D26 there is clear shara made by the Sub-
Registrar, Bengaluru South Taluk in his handwriting that
amount of Rs.20,000/- was paid in his presence by
N.M.Annaiah for N.A.Ravigopal to K.R.Rangappa, the
vendor in the sale deed. The very such endorsement
made by the Sub-Registrar would indicate that the
consideration amount was paid by the defendant No.1
N.M.Annaiah, father of the plaintiff No.2 and defendant
No.4. According to the defendants No.4, 6 & 7, the
defendant No.4 is B.Sc., and B.E. graduate. This property
in item No.6 was purchased on 27.07.1972. It is not in
dispute that the defendant No.4 born on 09.02.1954.
Hence, at the time of purchase of item No.6 of the
schedule property the defendant No.4 was aged about 18
years 5 months. In order to get graduation like B.Sc.,
B.E. it requires at least 21 years. The purchase of this
item No.6 of the plaint schedule as on 27.07.1972
indicates that it was purchased when the defendant No.2
was student. There is absolutely no document or
evidence placed before the court to show that the
defendant No.4 was earning income of his own, except
the joint family funds. The endorsement made in Ex.D26
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sale deed dated 27.07.1972 would go to show that the
consideration amount of Rs.20,000/- was paid by the
defended No.1 or kartha of the family. Hence, this court
is of the opinion that the item No.6 of the plaint schedule
property is of the joint family properties of the plaintiffs
and defendants No.4 to 7. There is absolutely no
evidence on the side of the defendants No.4, 6 & 7 to
show that the item No.17 of the schedule properties also
purchased out of separate income of defendant No.4.
During the course of cross examination of PW1 and DW 1
nothing worth is elicited from their mouth to suggest that
the defendant No.4 had his separate income purchased
the plaint schedule item No.6 and 17 out of his own
income. On the other hand, the suggestion is made to PW
1 is that till 2006 all the plaintiffs and defendant No.1 to 7
were all living together in the same house and messing
together indicates that there was no any division taken
place in the family of the plaintiffs and defendants No.1
to 7. Under such circumstances, the presumption is that
the properties acquired are out of joint family funds.
Hence, this court is of the opinion that the plaint schedule
item no.6 & 17 are joint family properties of the plaintiffs
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and defendants No.4 to 7.
43. With regarding to plaint schedule item No.9 is
concerned, PW 1 in his examination in chief has deposed
that item No.9 of the plaint schedule property was site
bearing No.934 allotted to Dasamma as she has lost her
site in Koramangala 1st Block, which was purchased in her
name by the partnership firm N.M.Annaiah and co. of
which she was also partner. At the time of allotment of
the site she was aged about 83 years. At the time of
execution of sale deed dated 09.09.2002 she was aged
about 85 years and she was representing in that sale
deed by the defendant No.4. The copy of the sale deed is
marked through DW 2 as Ex.D34. PW 1 has deposed
that later within a year Dasamma passed away and as
per Bangalore Development Authority in any site allotted
by the Bangalore Development Authority building has to
be built within 10 years from the date of allotment. As
per Ex.D34 the property was allotted on 04.02.2000. This
property is located at the prime point in BTM Layout, II
stage. Dasamma passed away in the year 2005, as such
the remaining partners of N.M.Annaiah and co.
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consisting partners such as himself, his father
N.M.Annaiah, defendant No.1, his brother defendant No.4
have decided to get the Katha to the property in the
name of 2nd defendant who was also by then aged more
than 75 years. It was decided that it would be expedient
to get the property registered in the name of defendant
No.4 to facilitate availing loan from the bank and financial
institutions and to put up construction on the said
property. Consequently, Ex.D55 Gift Deed dated
05.04.2012 was executed by the defendant No.2, who is
legal heir of Dasamma in favour of the 4 th defendant.
Therefore, this property is joint family property belongs to
him and defendant No.4.
44. The learned counsel for the defendant No.5 argued
that this property in item no.9 of plaint schedule is the
joint family property. The sale deed was in favour of
Dasamma dated 09.09.2002. The defendant No.4 was
mere General Power of Attorney holder to get the sale
deed executed by Bangalore Development Authority . He
submitted that the sale consideration amount of
Rs.3,43,345/- was used out of joint family funds. The
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learned counsel for the defendants No.4, 6 & 7
vehemently argued that the property item No.9 which
was vacant site was subject matter of allotment made by
Bangalore Development Authority in favour of Dasamma.
He argued that perusal of Ex.D34 to 39 it is clear that
the allotment made in favour of Dasamma and she paid
the sale consideration to Bangalore Development
Authority. The defendant No.4 as General Power of
Attorney holder of Dasamma got sale deed registered in
his name. Subsequently, Dasamma’s name was mutated
in the office of BBMP. Upon her demise her only
daughter N.a.Janaki Bai @ N.A.Narayanamma i.e.
defendant No.2 succeeded to the estate of Dasamma
which included item No.9. The defendant No.2 executed
Gift Deed in favour of defendant No.4 which was
accepted by defendant No.4, hence, the defendant No.4
became absolute owner. He argued that as the property
was inherited by defendant No.2 in view of S.15 and 16 of
Hindu Succession Act, the same is absolute property of
the defendant No.2. Hence, this property item No.9 is
the separate property of defendant No.4.
45. I have appreciated rival contentions and perused
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the records. It is not in dispute that the defendant No.1
married his own sister’s (Dasamma) daughter N.A.Janaki
Bai @ N.A.Narayanamma, who is 2nd defendant in this
suit. It is not in dispute that the defendant No.2 acquired
or inherited through her mother item No.2, 3, 7, 8, 9, 10,
13, 14 & 16 of the plaint schedule properties. It is
pertinent to note that as this court allowed IA No.17 filed
u/Or.XII R.6 of CPC, a decree on admission was passed
with respect to all these properties i.e. schedule item
No.2, 3, 7, 8, 10, 13, 14 and 16. The plaintiff in the plaint
itself has stated that the defendant No.1 who developed
ancestral properties out of the joint family funds
purchased the properties in his name in the name of
defendant No.2 and in the name of defendant No.4. The
defendants No.1 to 3 in their written statement admitted
the averments made by the plaintiffs by admitting that
the defendant No.1 who succeeded joint family properties
developed the same and by developing his business
purchased the properties in his name, in the name of
defendant No.2 and in the name of defendant No.4. While
filing objection to IA No.17,D4,6,7 submitted that they
have no objection to decree the suit on admission . Even
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if we peruse the written statement contentions of the
defendants No.4, 6 & 7 except they disputed regarding
item No.6, 9 & 17 they have admitted all other plaint
schedule properties are joint family properties. Under
such circumstances, it can be safely held that even
though this property was allotted to the name of
Dasamma, who is the sister of defendant No.1 and sale
deed executed in her favour represented by General
Power of Attorney holder the defendant No.4, sale
consideration amount was flown from the joint family
funds. The defendant No.4 as General Power of Attorney
holder got the sale deed executed in his name through
Bangalore Development Authority . After the death of
Dasamma as this property mutated in the name of
defendant No.2 she executed Gift Deed in favour of
defendant No.4. When there is such circumstances, that
the defendant No.2 had inherited and acquired such
properties i.e. item No.2, 3, 7, 8, 10, 13, 14 and 16 of the
plaint schedule properties we cannot isolate this property
item No.9 as separate property of defendant No.2. The
defendants No.4, 6 & 7 have not produced any
documents before this court to show that Dasamma had
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her separate income, so as to purchase the property item
no.9. Certain documents are marked through DW 2,
which are marked as Ex.D34 to 39. Ex.D34 is the
certified copy of sale deed dated 09.09.2002, which
would go to show that Bangalore Development Authority
executed this sale deed in the name of Dasamma
represented by defendant No.4 as General Power of
Attorney holder N.A.Ravi Gopal. Ex.D35 is the copy of
death certificate of defendatn No.2 to show that she died
on 17.03.2020. Ex.D36 is the property encumbrance
certificate in form No.15. Ex.D37 is the encumbrance
certificate in form No.16. Ex.D38 is the property tax
receipt. Ex.D39 are e-Katha standing in the name of
defendant No.4. Even though this property was allotted
by Bangalore Development Authority in favour of
Dasamma sale deed executed in her favour, but there is
absolutely no evidence on the side of the defendants
No.4, 6 & 7 to show that sale consideration was paid by
her. On the contrary it would go to show that the sale
consideration was given by defendant No.1 from the joint
family funds. Hence, this court is of the opinion that the
property in item No.9 is the joint family property of
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plaintiffs and defendants No.4 to 7.
46. The learned counsel for the plaintiffs argued that
the property in item No.32, 33, 35, 36 of the plaint
schedule properties are self acquired properties of
plaintiff No.2 and are not available for partition. PW 1
has deposed that he was purchased item No.32 on
08.03.1974 from Venkata Boye and N.Munivenkatappa
for sum of Rs.4,000/-. He has purchased item No.33 of
the joint family property from Narayanappa and Pillappa
for sum of Rs.2,000/- under the registered sale deed
dated 14.06.1974. He has purchased item No.35 of the
plaint schedule from Munishamappa for Rs.2,000/- on
25.03.1974. He had purchased plaint schedule item
no.36 from Narasimappa S/o Nagarajappa and Nagaraju
for Rs.80,000/- on 25..07.1996. PW 1 has deposed that all
these properties item No.32, 33, 35 & 36 of the plaint
schedule properties are self accused acquired properties.
47. In order to substantiate such contention taken by
PW 1 and to show that item No.32,33,35,36 of plaint
schedule are his self acquired properties he has not
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produced any documents. According to PW 1 he had
purchased these properties item No.32, 33 and 35 during
the year 1974 and item No.36 in the year 1996. The
learned counsel for the defendants No.4, 6 & 7 argued
that in the year 1974 plaintiff No.1 / PW 1 was a student.
The plaintiff No.2/PW 2 completed his graduation
somewhere in the year 1976-77. he has no income of his
own in order to purchase these properties. It is not in
dispute that PW 1 is holding two graduations. In his cross
examination he has deposed that he is paying income tax
from the year 1970. If at all he had income tax returns
document he should have produced the saem. It is
undisputed fact that PW1 born in the year 1952. Hence,
in the year 1974 he was hardly aged about 22 years. If
at all he was not college going student at the time of
purchase of these properties item No.32, 33 and 35 of
plaint schedule he should have produced his degree
certificates and college marks cards in order show in
which year he had completed graduation. Even PW 1 has
not produced his bank statement in order to show that he
had sufficient amount in his bank account so as to enable
him to purchase these properties without the assistance
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of joint family funds. When it is admitted that till the year
2006-07 all the plaintiffs and defendants No.1 to 7 were
living under same roof, presumption is that they are
acquired properties by using the joint family funds. PW 1
in his cross examination stated that his date of birth is
15.11.1952. He states that in the year 1968 he was aged
about 17 years. Even though in his cross examination
PW 1 has stated that he is having income tax returns
documents since from the year 1970 and he is ready to
produce the same before the court, but he has failed to
produce income tax returns before the court. Under
such circumstances, an adverse inference can be drawn
against PW1 is that since he has not having such
documents to show that he is filing the income tax
returns from the year 1970 for that reason he has
withheld to produce the documents. PW 1 in his cross
examination admitted the suggestion that he has not
produced any documents before this court to show that
he had his independent income during the year 1974.
Under such circumstances, self serving oral evidence of
PW 1 is that these properties item No.32, 33, 35 and 36
of the plaint schedule are his self acquired properties are
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purchased by him by using self earned money is not
acceptable. On the other hand, the plaint averments as
well as contentions of the written statements of
defendants No.1 to 3 would go to show that the
defendant No.1 by using joint family nucleus purchased
several properties in his name, in the name of defendant
No.2 and in the name of defendant No.4 are also
indicates that he had purchased these properties by
using joint family funds. Hence, this court is of the
opinion that these properties item No.32, 33, 34 & 36 of
the plaint schedule properties are the joint family
properties of the plaintiffs and defendants No.4 to 7.
48. With regard to the contentions of the defendant
No.5 with respect to item No.1 of her counter claim
schedule property is concerned it is to be noted that
same property is mentioned by the plaintiffs in the plaint
as item No.18. This court already drawn decree on
admission with regard to plaint schedule properties
including item no. 18 of plaint schedule. Since this court
already drawn preliminary decree on admission dated
12.08.2022 this court cannot give contrary finding with
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regarding to the plaint schedule properties item No.1 to
5,7, 8, 10 to 16, 18, 30, 31 and 34. With regarding to
remaining immovable properties mentioned by the
defendant No.5 in the counter claim schedule, the decree
on admission already passed. Hence, this court need not
give finding with regarding to properties under which
preliminary decree on admission passed on 12.08.2022.
The learned counsel for plaintiffs argued that item No.37,
38, 40 of plaint schedule are not in existence. He
submitted that with regarding to item No.40 and 41
orders already passed in P&Sc No.66/2022 as per order
dated 01.04.2022, which is attained finality. Hence, item
no.40 and 41 of the plaint schedule properties also not
available for partition.
49. The plaintiffs even though claimed that except
items No.1 to 5, 7, 8, 10 to 16, 18, 20, 31, 34, all other
plaint schedule properties are ancestral and joint family
properties. But during the course of arguments, the
learned counsel for the plaintiffs argued that the plaint
schedule item No.6, 9, 17, 37, 38, 39 and 42 are only
available for partition. This court in the above paragraphs
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given finding regarding item No.19 to 29, 32, 33, 35, 36.
The learned counsel for the plaintiffs while addressing
arguments submitted that the plaint schedule item
No.40 and 41 are already decided in P&Sc No.66/2022.
Such arguments addressed by the learned counsel for the
plaintiffs regarding the order passed in P&Sc. No.66/2022
is not disputed by the learned counsel for the defendants.
Hence, one thing is very clear that the plaint schedule
item No.40 stocks, debentures, bonds are all standing in
the name of Smt.N.A.Janaki Bai and suit item No.41 fixed
deposits, bank balance savings account, current account
are standing in the name of N.A.Janaki Bai are not
available for partition. In this suit even though the
plaintiffs have claimed their right over the stocks, shares,
debentures, bonds of bank standing in the name of
N.M.Annaiah showing it as item No.37 and fixed deposits,
bank balance, savings account of different banks
standing in the name of N.M.Annaiah and showing it as
item No.38 of plaint schedule properties and all antique
collections, other items and valuable items held by
N.M.Annaiah including vehicles which is mentioned as
item No.39 of the plaint schedule and all gold jewels and
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other items of valuable items held by defendant No.2
N.A.Janaki Bai, which is shown as item No.42, in order to
show such immovable properties are available for
partition, the plaintiffs have not produced any
documents. No doubt, 9 photographs of jewels are
marked at Ex.P6. But in the evidence PW 1 has deposed
that some of these jewels are not gold jewellery and
these jewellery were already shared by the defendant
No.2 during her life time. Even though the defendant
No.5, in her written statement and defendants No.4, 6 &
7 in their written statement mentioned several gold
items, but they have also not produced any documents to
show the existence of such gold items and stock,
debentures, vehicles. In order to show such movables
are available for partition. The defendant No.5 as well as
defendants No.4, 6 & 7 have not produced any
documents. Hence, this court is of the opinion that when
there is no any documents to show that there exist such
items mentioned in the plaint schedule item No.37 to 42,
no decree for partition can be passed. More than that this
court already passed an order in P&Sc No.66/2022
regarding certain shares and bank accounts.
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50. It is proved by adducing evidence of DW 2 and
producing the document at Ex.D70 that the partition was
taken place between the father of the defendant No.1
and his brothers family and in that partition dated
27.03.1945, 41 items of the properties came to the share
of father of the defendant No.1. The plaint schedule items
No.23 to 29 were subject matter of the partition of the
year 1945. In that partition dated 27.03.1945
Sri.Munivenkatappa got his share about 41 items of
properties which include counter claim item No.5 of
defendants No.4, 6 & 7 and also plaint schedule item
No.23 to 29. The total 36 acres of kuski land was given
to the share of Munivenkatappa who is great grand father
of plaintiff No.1 and he also got the land bearing
Sy.No.67/4 measuring 28 guntas, Sy.No.67/6 measuring
25 guntas situated at Baluvana Village in which there
were 200 fruit yielding coconut trees. Munivenkatappa
got total worth of Rs.1,31,981-11 anas of the property in
the partition deed dated 27.03.1945. The plaintiff No.1,
defendant No.5, defendants No.4 to 7 are the great grand
children of Munivenkatappa who are the third
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generations. The plaintiff No.1 himself in his plaint
clearly stated that his great grand father Munivenkatappa
was successful businessman, during his life time. The
defendant No.1 succeeded the ancestral properties under
the partition deed dated 31.03.1952. and developed the
same and purchased the properties in his name, in the
name of his wife defendant No.2 and in the name of
defendant No.4. Even on perusal of the judgment relied
by learned counsel for the plaintiffs in ANDAGI
CHANDRANNA VS. SHANKAR AND OTHERS ((2025) 4
S.C.R. 1417 case, the Hon’ble Supreme Court in para 14
held that, in Hindu law, for a property to be considered as
an ancestral property, it has to be inherited from any of
the paternal ancestors upto three generations. When we
consider the plaintiff No.1, defendants No.5 to 7 that their
great grand father Munivenkatappa there are three
generations. The Hon’ble Supreme Court in the said
judgment in para 15 by referring earlier judgment of
Hon’ble Supreme Court in ROHIT CHAUHAN VS.
SURINDER SINGH AND OTHERS, it is held that ” “11. ….In
our opinion coparcenary property means the property
which consists of ancestral property and a coparcener
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would mean a person who shares equally with others in
inheritance in the estate of common ancestor.
Coparcenary is a narrower body than the joint Hindu
family and before the commencement of the Hindu
Succession (Amendment) Act, 2005, only male members
of the family used to acquire by birth an interest in the
coparcenary property. A coparcener has no definite share
in the coparcenary property but he has an undivided
interest in it and one has to bear in mind that it enlarges
by deaths and diminishes by births in the family. It is not
static. We are further of the opinion that so long, on
partition an ancestral property remains in the hand of a
single person, it has to be treated as a separate property
and such a person shall be entitled to dispose of the
coparcenary property treating it to be his separate
property but if a son is subsequently born, the alienation
made before the birth cannot be questioned. But, the
moment a son is born, the property becomes a
coparcenary property and the son would acquire interest
in that and become a coparcener”. If this principle laid
down by the Hon’ble Supreme Court applies to the
present case, admittedly, the plaintiff No.2 born on
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15.11.1952 i.e. soon after partition deed dated
31.03.1952. The defendant No.4 born on 09.02.1954.
Prior to birth of plaintiff No.2 and defendant No.4 the
defendant has not alienated any of the properties fallen
to his share. The plaintiff No.1 himself in the plaint
stated that the defendant No.1 who had inherited the
property from his father developed the same and
purchased the properties in his name, in the name of his
wife, defendant No.2 and in the name of defendant No.4
out of joint family nucleus. Such pleadings of the
plaintiff No.2 made in para III (1) and (2) are admitted by
the defendant No.1 to 3 in their written statement.
Subsequently, the defendant No.3 transposed himself as
plaintiff No.2. But the fact remains, prior to birth of
plaintiff No.2 and defendant No.4, the defendant No.1 has
not alienated any of the properties fallen to his share in
the partition deed dated 31.03.1952 becomes
coparcenary properties consisting of defendant No.1,
plaintiff No.2 and defendant No.4. After the birth of
plaintiff No.1, defendants No.5 to 7 they have also
become coparceners as they are of the third generations
from N.A.Munivenkatappa. In my humble view decision
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cited by the learned counsel for the plaintiffs in UTTAM
VS. SOUBHAGYA SINGH AND OTHERS which is regarding
S.8 of Hindu Succession Act is not applicable to the
present suit. In this suit, we can made applicable S.6 of
Hindu Succession Act. The defendant No.5 who is
daughter acquires right by birth in view of the judgment
of Hon’ble Supreme Court in VINEET SHARMA’S case. The
plaintiffs have not produced any documents to show that
the defendant No.1 and plaintiff No.2 have any separate
income of their own, without the aid of the joint family
funds to purchase the counter claim item No.1 to 6 of
counter claim of defendants No.4, 6 & 7. Likewise,
defendant No.4 also not produced any cogent evidence
to show that item No.6, 9 and 17 of the plaint schedule
properties is separate properties. Hence, I answer
Issue No.1 partly in the AFFIRMATIVE, Issue No.2 in
the NEGATIVE, issue No.3 in the NEGATIVE, issue
No.8 in the AFFIRMATIVE, issue No.15 in the
AFFIRMATIVE and issue No.16 in the NEGATIVE.
51. ISSUES No.4, 5, 6, 7 & 9: The defendants
No.4, 6 & 7 have sought for the relief to declare that the
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Gift Deed dated 12.06.2015 subsequent rectification
deed dated 15.06.2016 and 07.04.2017 with respect to
item No.4 of counter claim schedule executed by D1 in
favour of Plaintiff no.1 Gift Deed dated 05.03.2004
executed by the defendant No.1 in favour of plaintiff
No.2, the Gift Deed executed by the defendant No.1 in
favour of plaintiff No.2 with respect to item No.2 of
written statement schedule, alleged Gift Deed executed
by defendant No.1 in favour of plaintiff No.2 in relation to
item no.3 of the written statement schedule, the alleged
Gift Deed dated 05.04.2012 are not binding on these
defendants. The defendants also prayed to declare that
the alleged gift deed dated 12.06.2019 executed by
defendant No.3 (now transposed as plaintiff No.2) in
favour of plaintiff No.1 with respect to item No.1 of
counter claim schedule is not binding on these
defendants. In the present suit, some of the Gift Deeds
are marked in the examination of DW1, since DW
1/defendant No.5 seeking partition in all the properties,
with respect to plaint schedule and written statement
schedule certain Gift Deeds are marked through DW1.
Ex.D3 is the certified copy of the Gift Deed dated
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06.02.2024, Ex.D7 is the certified copy of Gift Deed
dated 12.06.2019, Ex.D8 is the certified copy of Gift Deed
dated 07.07.2004, Ex.D9 is the certified copy of Gift Deed
dated 12.06.2015. During the course of cross
examination of DW1 by the learned counsel for the
defendants No.4, 6 & 7 certain documents confronted to
her and marked on the side of defendants No.4, 6 & 7.
Ex.D10 is the certified copy of the lease agreement dated
21.01.2019, Ex.D11 is the certified copy of the lease
agreement dated 17.02.2020, Ex.D12 is the certified
copy of lease agreement dated 17.02.2020. Ex.D14 to 19
are photographs. Ex.D20 is the certified copy of the sale
deed dated 28.10.1970. Ex.D21 is the certified copy of
the Gift Deed dated 05.03.2004. Ex.D22 is the certified
copy of sale deed dated 15.04.1974. Ex.D23 is the
certified copy of the sale deed dated 04.05.1966, Ex.D24
is the certified copy of the deed of rectification dated
15.06.2010, Ex.D25 is the certified copy of the
rectification deed dated 07.04.2017 Some documents
Gift Deeds are also marked through DW 2. Ex.D55 is the
certified copy of Gift Deed dated 05.04.2012.
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52. The learned counsel for the plaintiffs argued that
item No.1 of the counter claim schedule property is the
self acquired property of plaintiff No.2 who purchased the
same under the registered sale deed dated 15.04.1974.
As a owner and in possession of this property the plaintiff
No.2 executed a registered Gift Deed dated 12.06.2019
in favour of the plaintiff No.1. After the Gift Deed plaintiff
No.1 is in possession of this property by exercising all the
acts of ownership. He argued that since this is self
acquired property of the plaintiff, the defendants cannot
challenge the Gift Deed . He further argued that item
No.2 of the counter claim schedule property is the self
acquired property of the defendant No.1 who purchased
the same under the registered sale deed dated
28.10.1970. Hence during his life time, on 05.03.2004 he
gifted this property in favour of the plaintiff No.2 by
executing registered Gift Deed dated 05.03.2004. He
argued that the defendant No.4 also affixed his signature
as witness to this Gift Deed . He argued that u/S.58 & 59
of Limitation Act, as the time is barred the defendants
cannot challenge the Gift Deed dated 05.03.2004. He
relied on the judgment of Hon’ble Supreme Court in Civil
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Appeal No.5180/2025 arising out of SLP No.13459/2024
(NIKHILA VIDYANG MEHTA VS. HITESH P. SANGHVI). He
also argued that without cancelling the registered
document, the relief cannot be granted. He submitted
that the cancellation of instrument based on provision of
S.31 of Specific Relief Act. He also argued that in order
to file suit challenging the limitation period is 3 years.
But the defendant No.4, 6 & 7 challenged this Gift Deed
after more than 11 years 3 months. Hence, it is barred
by period of limitation. He relied on the judgment of
Hon’ble Supreme Court in SLP No.2998/2022 between
(RAJEEV GUPTA VS. PRASHANTH GARG AND OTHERS).
53. The learned counsel for the plaintiffs argued that
Item No. 3 of the counter claim schedule property is also
self acquired property of the defendant no. 1 which
purchased by defendant no. 1 under registered sale deed
dated 4.05.1966. During the lifetime of defendant no.1,
he gifted this property in favour of plaintiff no. 2 under
registered gift deed dated 7.07.2004. He argued that this
gift deed 7.07.2004 cannot be challenged of assailed
because for 2 grounds. Firstly, it is self acquired property
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of defendant no. 1. Secondly, the claim of the defendants
barred by period of limitation under Article 58 and 59 of
Limitation Act. He further relied the same judgment of
Hon’ble Supreme Court in Civil Appeal No. 5180/2025
arising out of SLP(C) No. 13459/2024 between Nikhila
Divyang Mehatha and anr. V/s Hitesh P Sangavi and
others by referring Para No. 24 and 25. He further by
referring the judgment of Hon’ble Supreme Court in civil
Appeal No. 14807/ 2024 arising out of SLP © No.
18977/2016 between Mukund Bhavan Trust and others
V/s Srimant Chatrapathi Udayana Raje Prataph Singh
Bonsle and others argued that without cancellation of
registered documents, the relief cannot be granted. He
further relied on the judgement of Hon’ble Supreme court
in Civil Appeal No. 11061/2024 arising out of SLP (c) No.
2998/2022 between Rajeev Guptha and others V/
Prashant Grag and others to contend that whether a
person had valid title and power to transfer a property
can be examined only if the civil suit had been instituted
by the plaintiff within the period of limitation. He argued
that Item No. 4 of the counter-claim schedule property
was purchased by defendant no. 1 under registered sale
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deed dated 4.02.1968 from his self earnings. Hence
during his lifetime, on 12.06.2015, he has gifted this
property in favour of the plaintiff no. 1 for the service
rendered by plaintiff no. 1 when he had suffered heart
attack on 15.11.2022 and given all medical treatment
and taken care of him. He argued that since the Item No.
5 of counterclaim came to the share of first defendant
under partition deed dated 31.03.1952, it also become
his self acquired property. He argued that defendant no.
4 himself affixed his signature as a witness to the gift
deeds dated 5.03.2004 and 7.07.2004. hence he is
estopped from challenging the gift deeds. Hence the
defendant no. 4, 6 and 7 cannot challenge the gift deed
executed by defendant no. 1 in favour of defendant no. 5
with respect to this property.
54. On the other hand, the learned counsel for the
defendant no. 5 argued that the defendant no. 5 herself
in her written statement stated that this property Item
No.5 of counterclaim of defendant no. 4, 6 and 7 is
ancestral joint family property, she is not admitting gift
deed and stated that it is also liable for partition. He
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argued that all the properties purchased by the defenant
no. 1 after partition of the year 1952 which purchased in
his name, in the name of plaintiff no. 2, defendant no. 2,
defendant no.4 are all purchased out of joint family
funds. He argued that at the time of partition dated
31.03.1952, plaintiff no. 2 was in the womb. Plaintiff no. 2
born on 15.11.1952, child in womb also get the share.
Since all the properties purchased subsequent to the
partition of the year 1952 out of joint family fund, the
defendant no. 1 who is the coparcener, so also plaintiff
no. 2 who is also coparcener have no right to execute the
gift deeds.
55. The learned counsel for the defendant no. 4, 6, 7
argued that the counterclaim schedule Item No. 1 to 6
are all joint family properties. Counter claim schedule
Item NO. 1 and 6 were purchased in the name of plaintiff
no. 2 and counter claim schedule Item no. 2 to 4
purchased in the name of defendant no. 1 out of joint
family fund. Counterclaim schedule Item No. 5 which was
allotted to the share of defendant No. 1 under partition
deed dated 31.03.1952. Hence all these properties are
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ancestral and joint family in nature. He submitted that
according to Hindu law, a kartha of Hindu Undivided
family cannot make a gift of ancestral and joint family
property and such gift is null and void. He argued that
defendant No. 1 had no authority or competence to make
any gift in favour of plaintiff no.1, Plaintiff no. 2 and
defendant no.5. The plaintiff no. 2 also has no authority
to execute gift in favour of plaintiff no. 1. All the gift
deeds being null and void have no legal sanctity in the
eye of law. Even the plea of acquiescence would not
apply in such situation as documents are void ab initio.
He further argued that the defendant no. 6 and 7 are not
the parties of the alleged gift deeds. He submitted that
the defendant No. 4 not signed the gift deed as
consenting witness. He argued that the provision under
section 58 and 59 of Limitation Act does not applies.
Since there is a suit filed for partition, the provision U/Ss.
58, 59 cannot be made applicable. The defendant no. 6
and 7 who are not parties to the gift deeds, came to
know about the same only at the time of filing the
pleadings. The learned counsel for the defendant no.4, 6
and 7 relied on the judgment of Hon’ble High Court of
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Karnataka in RFA No. 1905 of 2005 decided on 9.12.2020
between CN Leelavathi V/s M Narayanappa and others.
56. I have appreciated the rival contentions and
perused the records. Even though the certified copy of
gift deeds marked through DW1 and DW2, both the
parties i.e. plaintiffs and defendants have not made any
efforts to examine any one of the attesting witnesses
signed on the gift deeds. The gist deeds are the
compulsorily attestable documents. The provision U/s 68
of Indian Evidence Act ( Section 67 of BSA), it is very
clear that if a document is required by law to be attested,
it shall not be used as evidence until one attesting
witness atleast have been called for the purpose of
proving its execution, if there be an attesting witness
alive and subject to the process of court and capable of
giving evidence provided that it shall not be necessary to
call an attesting witness in proof of execution of any
document not being a will which has been registered in
accordance with the provisions of the Indian registration
Act unless its execution by the person by whom it
purports to have been executed is specifically denied. No
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doubt in this suit, the defendant no. 1 and plaintiff no. 2
have not disputed regarding execution of the gift deed.
But the defendant no. 4 to 7 have taken contention that
defendant no. 1 had suffering from grave ill health and he
was under medical treatment. Hence taking undue
advantage of the same, plaintiffs have got created the
gift deeds. PW1 has deposed that defendant no. 1 had
suffered a heart attack on 15.11.2002. At that time,
plaintiff no. 1 gave immediate medical treatment and
taken him to hospital. Thereafter plaintiff no. 1 had given
all medical treatment and took regular medical care.
Hence by appreciating the medical care given by plaintiff
no. 1, defendant no. 1 executed gift deed dated
12.06.2015 with respect to counter claim schedule Item
No. 4. The learned counsel for the defendant No. 5 during
the course of cross-examination of PW1, put a suggestion
to him that in Ex.D8, it is mentioned as ” the donor out of
love and affection and on account of the dedicated
service rendered by the donee and his family members
has executed the gift deed”. He submitted that even in
Ex.D21 gift deed with regarding to counter claim Item
No.3 also, it is mentioned as ” the donor out of love and
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affection and on account of the dedicated service
rendered by the donee and his family members has
executed the gift deed”. The learned counsel for
defendant no. 5 submitted that it was not only plaintiff
no. 1 and 2 rendered service to the defendant no. 1 and
2, the family members also made service to defendant
No. 1 and 2. On perusal of the plaint averments, the
plaintiff in his plaint itself stated that during past one
decade, the health of defendant no. 1 and 2 has
deteriorated. That means, the defendant no. 1 was not
having good health as on 12.06.2015. The plaintiffs have
not produced any documents of medical treatment of
defendant No.1 to show his health condition. The
plaintiffs have not stated on which date the plaintiff no. 1
completed MBBS graduation. . While giving finding on
Issue No. 1 to 4, 8, 15 and 16, this court has given
finding that the Item No. 1 to 8 counter claim schedule
properties of defendant No. 4, 6 and 7 are joint family
properties purchased out of joint family fund. Hence the
plaintiffs and defendant No. 4 to 7 are having equal share
in Item No. 1 to 8 of counter claim schedule properties. In
the judgment of Hon’ble High Court of Karnataka cited by
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the learned counsel for the defendant No. 4, 6 and 7 in
CN Leelavathi‘s Case, RFA No. 1905 of 2005, decided on
9.12.2020, the Hon’ble High Court of Karnataka in para
no.9 , Page no. 25 of the judgment wherein it is held that
the law is well settled that gift by a coparcener of his
undivided coparcenary interest to another coparcener or
to stranger without the consent of other coparcener is
void. The Hon’ble. High Court while giving finding
regarding the limitation point is concerned, held that
even though in that case, gift is executed in the year
1981 and the plaintiffs have filed the suit in the year
1993, it is held that Article 109 of Limitation act cannot
apply as the plaintiffs have pleaded that they came to
know about the alleged gift deed only in the year 1993. a
suit for declaration is to be filed within 3 years from the
date of accrual of cause of action, since the suit is filed
within 3 years from the date of accrual of cause of action,
hence the contention that the suit is barred by time is
baseless. In my humble view, the principles of this cited
decision of SN Leelavathi case is aptly applicable to the
present suit. In the present suit, defendant no. 5/DW1
also sought for the counterclaim, claiming the share in
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the properties mentioned as Item No. 1 to 6 of counter-
claim of defendant no. 4, 6 and 7. Admittedly, except the
gift deed executed by defendant no. 1 in her favour with
respect to item no. 5, she is not signatory to remaining
gift deeds executed by defendant No. 1 and plaintiff no.2.
The defendant No. 6 and 7 who are also filed the
counterclaim claiming the share in these properties also
not signatory to any of the gift deeds under challenge.
During the course of cross-examination of DW2 by the
learned counsel for the plaintiff, no point is elicited from
his mouth to suggest that he was aware of the Ex.D8 and
Ex.D21 gift deeds of the year 2004 itself. No doubt in his
cross-examination, he has admitted the dates of the gift
deed mentioned in Ex.D8 and Ex.D21. When question
asked to him regarding putting of signature by his father
to these gift deeds, then he answered that when he
asked defendant no.1 and 2 regarding the signature of
defendant no. 4, then defendant no. 1 and 2 told him that
it was done purely to obtain a loan to build a house. DW2
has deposed that the defendant no. 1 and 2 told him that
properties can only be partitioned and not to be gifted.
Since there is no evidence on the side of the plaintiffs to
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show that DW1 and DW2 knowing very well regarding
execution of Ex.D8 and 21 kept silent even after 3 years
without challenging the same, under such circumstances,
it cannot be held that the the gift deeds as per Ex.D8 and
21 challenging the same is barred by period of limitation.
Even though there is a signature of defendant No. 4 in
these 2 gift deeds, since defendant No. 5 to 7 are not
signatories to these gift deeds, it cannot be held, the
counter-claim prayer of defendant no. 4, 6, 7 praying to
declare gift deeds are not binding on them is barred by
limitation. In my humble view, the decisions cited by the
learned counsel for the plaintiffs of Hon’ble Apex court in
Civil Appeal No. 5180/2025, Civil Appeal No. 14807/2024,
civil Appeal No. 11061/ 2024 can be distinguished on
facts. In view of my finding on Issue no. 1 to 3, 8, 15 and
16, as this court of the view that the counterclaim Item
No. 1 to 6 of schedule of Defendant No. 4, 6 and 7 are the
ancestral and joint family properties, the defendant no. 1
and plaintiff No. 2 being the coparceners of their
undivided coparcenary interest has no power or authority
to gift the properties. Hence I answered Issue No. 4, 5, 6,
7 and 9 in the affirmative.
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57. ADDL. ISSUE No.1:- The plaintiffs in Item No. 6 of
the schedule excluded one complex namely Balaji
Complex by mentioning the measurement as 4,800 Sq Ft
as same is purchased by private person from joint family.
Neither the plaintiff no. 2 who was then defendant no. 3,
nor defendant No. 4 to 7 have disputed regarding
exclusion of this Balaji complex. During the pendency of
this suit, the defendant No. 8 to 10 moved IA seeking to
implead them as a defendants in this suit. This court was
pleased to reject their IA. But defendant No. 8 to 10 have
approached the Hon’ble High Court of Karnataka by
preferring WP No. 30232 / 2025. The Hon’ble High Court
of Karnataka allowed WP No. 30232/2025 as per order
dated 9.12.2025. Hence the defendant no. 8 to 10 are
impleaded in this suit. Only contention of the defendant
no. 8 to 10 is that their purchased property measuring
7,200 Sq Ft should be excluded instead of 4,800 Sq Ft
mentioned in Plaint Item No. 6. Defendant No. 8 who has
examined as DW3 in his affidavit filed for examination in
chief has reiterated the written statement contentions.
Documents Ex.D85 to 97 are marked through him. He
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has deposed that he and defendant No. 9 and 10 have
purchased sites measuring 60 x 40 Ft each under 3
registered sale deeds dated 18.02.1995. Thereafter they
have joined all 3 sites together which totally measures
7,200 Sq Ft and have put up construction in 26,000 Sq Ft
with ground plus 3 floors. Ex.D85, Ex.D86. Ex.D87 are the
certified copies of sale deed to show that defendant No. 8
to 10 have purchased 3 sides from defendant No. 4 under
sale deeds dated 18.02.1995. Ex.D 85(A) Ex. D. 86(A) ,
Ex.D87 (a) are readable copies of certified sale deed.
Ex.D88, Ex.D90 are the khatha certificate. Ex.D89 is the
khatha extract. Ex.D92 is property tax receipt from the
year 2021-22 to 2025-26. Ex.D93 to Ex.D95 are 3
building license. Ex.D96 is 3 photographs of building.
Ex.D97 is document for having obtained loan issued by
KSFC. During the course of cross-examination of DW3 by
the learned counsel for the plaintiffs and defendant No. 4,
6 and 7, nothing worth is elicited from his mouth to
discard his examination in chief version regarding
purchase of total extent of 7,200 Sq Ft and constructed
the Balaji Complex therein. Since the plaintiffs as well as
defendant No. 4 to 7 have not disputed regarding the
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Item No. 6 which measuring 1 acre 20 guntas excluding
the Balaji Complex. As it is proved by the impleaded
defendant no. 8 to 10 that the Balaji complex is situated
in an area of 7,200 Sq Ft and not only in 4,800 Sq Ft as
mentioned in Item No.6, this court has to exclude 7,200
Sq Ft instead of 4,800 sq ft mentioned in item no. 6 of the
plaint. The defendant No. 8 to 10 have purchased this
property measuring 7,200 sq ft in the year 1995 under
registered sale deed dated 18.02.1995. the plaintiffs and
defendant No. 4 to 7 have not challenged these 3 sale
deeds dated 18.02.1995. Hence this court of the opinion
that the defendant no. 8 to 10 proved that they are the
bonafide purchasers of 7,200 Sq Ft instead of 4,800 Sq Ft
mentioned in Item No 6 of plaint schedule. Hence I
answered Addl. Issue No. 1 in the AFFIRMATIVE.
58. ISSUE No.10 & 11: The defendants No.4, 6 & 7
have taken contention that encumbrance by raising loan
from the bank in respect of item No.4 of written
statement / counter claim property is not binding on
them. DW2 has deposed that item No.4 of the written
statement schedule property was vacant site, which was
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purchased by the defendant No.1 in Municipal auction
under the registered sale deed, out of the income derived
by him from several ancestral properties and same is
joint family property. But the defendant No.1
clandestinely gifted the same in favour of the plaintiff
No.1 which is not at all binding on these defendants
No.4 , 6 & 7. he has deposed that the plaintiff No.1 has
been dealing with the property and he has leased out
several portions of this property in favour of the tenants
and collecting heavy rents and also collected huge
security deposits from the tenants and utilizing the same
for his benefit. No doubt, in this case, the lease
agreements are marked during the course of cross
examination of DW1, DW2 also produced documents. It
is an admitted fact that the plaintiff No.1 by mortgaging
this property obtained loan and constructed the building.
Since these defendants have also claimed the mesne
profits in this suit, mere raising loan from the bank in
respect of the item No.4 cannot be held that this
encumbrance made by plaintiff No.1 for the development
of the property is not binding on the defendants No.4, 6 &
7. Since it is held that this property item No.4 is the joint
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family property, any development made by one of the co-
sharers is binding on the remaining co-sharers. Hence, I
answered issue No.10 in the NEGATIVE.
59. With regard to issue No.11, defendants No.4, 6 & 7
have taken contention that registered will executed by
defendant No.3 in respect of item No.2 of the written
statement is not binding on them. It is now settled
principle of law is that any Will executed by any of the
parties will come into force only after the death of that
person. Since as on the date of this judgment, the
defendant No.3 is alive, any such will executed by the
defendant No.3 will not affect the right / share of the
defendants No.4, 6 & 7 in item No.2 of the written
statement schedule property. Hence, without much
discussion I answered issue No.11 in the NEGATIVE.
60. ISSUE No.17: Originally, the plaintiff No.1 has
field this suit against the defendants for the relief of
partition and separate possession. The plaintiff by valuing
this suit u/S.35(2) of Karnataka Court Fees and Suits
Valuation Act paid the court fees at Rs.200/-, since the
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plaintiff in his plaint has taken contention that the suit
schedule properties are the joint family properties and he
is in joint possession of the suit schedule properties. The
court fees paid by the plaintiff appears to be correct. The
defendants No.1 to 3 sought for the relief of partition and
they have also paid the court fees of Rs.200/- each by
valuing the suit u/S.35(2) of Karnataka Court Fees and
Suits Valuation Act, which also appears to be correct. The
defendants No.4, 6 & 7 counter claim for declaration and
partition and permanent injunction. These defendants
have valued the suit for prayer of declaration u/S.24(d) of
Karnataka Court Fees and Suits Valuation Act and by
valuing the counter claim at Rs.1,000/- each paid court
fees of Rs.400/-. By valuing the suit for partitoin u/S.35(2)
of Karnataka Court Fees and Suits Valuation Act paid
court fees of Rs.200/- each, in all Rs.400/-. For the relief
of permanent injunction they have valued the suit at
Rs.1,000/- each and court fees of Rs.100/- is paid
u/S.26(c) of Karnataka Court Fees and Suits Valuation Act
. Thus, the defendants No.4 and 7 have paid total court
fees of Rs.900/-. The defendant No.5 also paid the court
fees.
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61. It is undisputed fact that item No.6 of the counter
claim schedule is already acquired and the BBMP
deposited amount of Rs.6,45,39,439/-. So far as relief of
partition with respect to immovable property and relief of
declaration and consequential relief of permanent
injunction is concerned, it appears that the court fees
paid is sufficient. Since the defendants No.4 to 7 also
claimed share in the compensation amount of
Rs.6,45,39,439/- deposited by BBMP, they have to pay
paid court fees of 1/6th share each on that amount.
Hence, this court is of the opinion that the defendants
No.4 to 7 shall pay court fees of 1/6th share in the
amount of Rs.6,45,39,439/- deposited by the BBMP.
Hence, I answered issue No.17 partly in the
AFFIRMATIVE.
62. ISSUE No.12, 13, 14, 18, 19 & 20: It is pertinent
to note here that while giving finding on issue no. 15, this
court has not given finding regarding Item No. 1, 5, 6, 10
and 14 of counter claim of the defendant no. 5. Hence
with regarding to these properties, this court discussed
under this issue no. 19. Admittedly, this court has already
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passed preliminary decree on admission by allowing IA
No. 17 filed under Order XII Rule 6 of CPC as per decree
dated 12.08.2022 with respect to plaint schedule item no.
1 to 5, 7, 8, 10 to 16, 18, 30, 31 and 34 for which the final
decree proceeding in FDP No. 92/2023 is pending for
adjudication. The plaint schedule Item no. 18 is the 50%
of the shares together standing in the name of defendant
no. 1, 3, 4 (in equal percentages), in the running business
of M/S AV Exhibitors which is in possession and
management of 2 theaters in Bangalore namely Sampige
Theater and Savitha Theater as per the partition deed
dated 1.04.1992. Hence 50% of shares with respect to
business of Ms AV Exhibitors already decreed. The
defendant no. 5 by way of counterclaim Item No. 1
mentioned as 50% share in the land and building situated
at Sampige Road Malleshwaram(Sampige and Savitha
Theater). The documents Ex.D6, certified copy of sale
deed dated 23.10.1970 marked through DW1. During the
course of cross-examination of DW1, she has admitted
the suggestion that NM Venkathesh is 50% co owner of
this property mentioned in Ex.D6. She has also admitted
the suggestion that NM Venktesh and his children are not
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the parties in this suit. It is the contention of the
defendant no.5/DW1 is that this property Item No. 1
purchased by defendant no. 1 along with his brother NA
Venktesh under registered sale deed dated 23.10.1970,
at that time, the plaintiff no. 2 and defendant No. 4 were
minors. It is the contention of the defendant no. 5 is that
out of sale consideration amount of Rs 5,00,040/-, the
50% of said amount i.e., 2,50,020 paid by defendant no.
1 Sri Annaiah. It is not in dispute that the partnership firm
formed and through the partnership firm, the business by
name M/s AV Exhibitors running 2 theaters Sampige and
Savitha. These 2 theaters are situated in this Item No. 1
of the written statement Schedule property. Since this
court already passed the decree on admission regarding
the plaint schedule Item NO. 18, this court cannot again
give finding regarding Item No. 14 of WS of defendant no.
5. Since these theaters Sampinge and Savitha are
situated in very same land bearing Item No. 1 of Written
Statement schedule of defendant no.5, this court of the
opinion that again we need not pass a decree with
respect to the same property. More than that, this
property in Item No. 1 of written Statement Schedule
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jointly purchased by defendant no. 1 and his brother NM
Venktesh. Hence without there being NM Venkatesh and
his children are made as parties, it is not possible to
decide to who is entitled to how much share in the landed
and building where Sampige and Savitha Theaters are
situated. Hence this court of the opinion that at this
stage, the item no. 1 is not partiable. With regarding to
Item No. 5 of the written statement schedule of
defendant No. 5 is concerned, DW1 in her examination in
chief has stated that this property is divided portion of
Item No. 4 mentioned by her in the schedule which was
gifted by plaintiff no. 2 to plaintiff no. 1. According to the
defendant no. 5, the Item No. 3 of the counterclaim of
defendant no. 4, 6 and 7 is equivalent to Item No. 4 of
her counterclaim schedule. This court has already given
finding regarding Item No. 3 of the counterclaim schedule
of defendant no. 4, 6 and 7 and also given finding
regarding gift deed executed by defendant no. 1 in
favour of plaintiff no. 2 and gift deed executed by plaintiff
no. 2 in favour of plaintiff no. 1. Hence it is not necessary
to give finding again. With regarding to Item No. 6 of
written statement schedule of defendant no. 5 is
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concerned, even though she has mentioned Item No. 1 in
her written statement, but in her examination in chief,
DW1 has not stated anything about this item property.
The learned counsel for the plaintiffs while addressing the
arguments submitted that all other items of schedule
properties decree of admission already passed. The
defendant no. 5 has not produced any documents with
regarding to item No. 6 of her written statement schedule
properties. Hence this court of the opinion that Item No. 6
of WS of defendant no. 6 is not available for partition.
With regarding to Item No. 10 of the written statement
schedule of defendant No.5, even though DW1 has
deposed that BMRCL awarded compensation with respect
to land bearing BBMP Khatha No 457/17/5 in Sy No. 17/5
of Roopena Agrahara Begur Hobli, Banglore south
towards compensation about 5000 sq ft of land and the
plaintiff no. 2 and 4 have received the compensation
amount, the defendant no. 5 has not produced any
documents of the same to show the actual amount of
compensation awarded. Without there being any
particulars regarding the compensation, this court cannot
pass any decree on compensation given by BMRCL.
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According to defendant no. 5, Item No. 11 to 13
mentioned in her WS and Item No. 7 and 8 mentioned by
defendant No. 4, 6, 7 in their WS are one and the same.
Neither the defendant no. 5, nor defendant no. 4, 6 and 7
have produced any documents with regarding to bank
balance of defendant no. 1 and also not produced
regarding shares, stocks, debentures, bonds standing in
the name of defendant no. 1. The defendants also not
produced any documents regarding existence of gold,
silver, diamond jewelries and articles mentioned in their
written statement. The plaintiffs also not produced any
documents with regarding to the movable properties
mentioned in the plaint schedule. The defendants have
also not produced any vehicle documents to show
existence of any vehicles inorder to make partition. In the
absence of any documentary evidence, the court cannot
pass decree regarding the movable properties on
presumption and assumptions.
63. The learned counsel for the plaintiffs while
addressing the argument, argued that plaint schedule
Item No. 19 to 29 already partitioned under the
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documents Ex.D4, Ex.D5 partition deed. This court
already given finding regarding these properties Item No.
19 to 29 mentioned in plaint schedule while giving finding
on Issue no. 1 to 3, 8 to 15, 16. Added to that finding, on
plain reading of the documents Ex.D4 and Ex.D5 certified
copies of partition deed itself shows that all the
properties mentioned in these documents Ex.D4 and
Ex.D5 are ancestral and joint family properties. These
properties are the subject matter of the partition of the
year 1945 and also the subject matter of the partition
deed dated 31.03.1952. The learned counsel for the
plaintiffs while addressing the arguments submitted that
the judgment passed on admission dated 12.08.2022 not
challenged by the parties of this suit. Hence this court
again cannot give finding with regarding to the plaint
schedule Item No. 1 to 5, 7, 8, 10 to 16, 18, 30, 31 and
34. It is true that this court already passed decree on
admission my allowing IA No. 17. Hence this court need
not give finding regarding already decreed properties.
While passing decree on admission, this court observed
that since the plaintiff no. 1 and defendant No. 5 are the
children of defendant no. 3, (now transposed as Plaintiff
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No.2), they will get share only through defendant NO.
3(now transposed as Plaintiff No.2). Observing so, the
objection filed by defendant No. 5 not considered. But it
is to be noted that while passing judgment on admission
dated 12.08.2022, this court has not given any such
finding that the plaintiff no. 1, defendant No. 5,
Defendant no. 6 and 7 are not at all entitled any share in
decreed properties. This court observed that the plaintiff
no. 1 and defendant No. 5 being children of defendant
no. 3 will get share through defendant no.3. Since the
judgment on the admission passed by this court attained
finality, this court need not give finding regarding plaint
schedule Item No. 1 to 5, 7, 8, 10 to 16, 18, 30, 31 and
34. In view of my finding on issue no. 1 to 3, 8, 15, 16,
the plaintiffs and defendant no. 4 to 7 are entitled for
partition and separate possession of 1/6th share each in
plaint schedule Item No. 6, 9, 17, 19 to 29, 32, 33, 35, 36
and counter-claim schedule Item No. 1 to 6 of
counterclaim schedule properties of defendant No. 4, 6, 7
which are equivalent to Item No. 2, 3, 4, 7, 8, 9 of
counterclaim of defendant No. 5 as these properties are
ancestral and joint family properties of plaintiffs and
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defendant No. 4 to 7 and they are all coparceners. Hence
this court of the opinion that so far as partition in these
properties are concerned, plaintiffs and defendant No. 4
to 7 have equal shares.
64. In the present suit, DW1 and 2 have produced
certain sale deeds and Gift Deeds. Ex.D3 is the Gift Deed
dated 06.02.2024.Ex.D7 is the Gift Deed dated
12.06.2019, Ex.D8 is the Gift Deed dated 07.07.2004.
Ex.D9 is the Gift Deed dated 12.06.2015. Ex.D20 is the
certified copy of sale deed dated 28.10.2015, Ex.D20 is
the certified copy of the Sale Deed dated 28.10.1970.
Ex.D21 is the certified copy of Gift Deed dated
05.03.2004. Ex.D22 is the copy of Sale Deed dated
15.04.1974. Ex.D23 is the copy of Sale Deed dated
04.05.1966. Ex.D26 is the copy of Sale Deed dated
27.07.1972. Ex.D34 is the copy of Sale Deed dated
09.09.2002. Ex.D55 is the certified copy of GD dated
05.04.2012. Ex.D56 is the certified copy of Sale Deed
dated 23.10.1970. In view of my finding on issues No.1
to 3, 8, 15 & 16 this court held that these properties
purchased in the name of defendant No.1, plaintiff No.2,
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defendant No.4 are joint family properties purchased out
of joint family funds. While answering issue No.4 to 7
and 9 this court held that since the defendants No.1 and
plaintiff No.2 are the coparceners they are not having any
right to execute Gift Deed with respect to written
statement schedule item No.1 to 6 of written statement
of defendants No.4, 6 & 7. This court also held that the
plaint schedule item No.6, 9, 17 are also joint family
properties of plaintiffs and defendants No.4 to 7. The
documents Ex.D28 certified copy of the judgment in
O.S.No.6617/2010 is produced and got marked through
DW 2. On perusal of this judgment passed in
O.S.No.6617/2010, which is filed by defendatn No.4 Ravi
Gopal against the Commissioner of Bangalore
Development Authority , it would go to show that even
though it is held that the plaintiff proved that he is
absolute owner of the suit schedule property therein i.e.
property CMC No.290/1 and 5, 6, 7, 8, 9 and 10, Katha
No.359, old Sy.No.49/5 measuring 1:18 residential 3 sites
situated at Bommanahalli as a owner, but the court
dismissed the suit on the ground that the property
already acquired by the Bangalore Development
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Authority, it is held that after acquisition of the suit
schedule property it vested with the defendant
(Bangalore Development Authority) and suit for
declaration of title and consequential relief of permanent
injunction is not maintainable. In the present suit also it
is is made it clear that acquired portion of the land is not
entitled for partition. The remaining properties i.e. item
No.6, 9,17, 19 to 29, 30 to 33, 35 & 36 and written
statement schedule item No.1 to 6 of written statement
of the defendants No.4, 6 & 7 which are all also claimed
in written statement of the defendant No.5 are all joint
family properties of the plaintiffs and defendants No.4 to
7 and they are having equal shares i.e. 1/6th share each
in these properties. As this court already held that in
view of the documents Ex.D70 registered partition deed
dated 27.03.1945 certain properties i.e. schedule item
No.23 to 29 were the subject matter of that partition also.
These properties were fallen to the share of the great
grand father of the plaintiff No.1, defendants No.5 to 7.
The defendant No.1 got the same properties under the
registered partition deed dated 31.03.1952 as per Ex.D1.
DW 1 in her evidence clearly stated that the defendant
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No.1 continued business of his father and except that he
is having income from continued business, and income
from ancestral properties he had no other income. DW 1
has clearly deposed that her father plaintiff No.2 and also
uncle defendant No.4 have no other avocation except
income derived from the joint family property and they
have no exclusive source of income. In the present suit
neither the plaintiff No.2 nor defendant No.4 have
produced any documents to show that they had any
independent income of their own. Even though PW 1 has
taken contention that he is an income tax assessee from
the year 1970, for obvious reasons best known to him he
has not produced any documents of income tax returns.
Even the plaintiffs and the defendants have also not
produced any documents to show how much amount was
earned out of partnership firm. There is absolutely no
evidence on the side of the plaintiffs and defendant No.4
is that they had any independent income of their own, so
as to purchase the properties in their name. Hence, this
court has given finding that these properties plaint
schedule item No.6, 9 17, 19 to 29 32, 33, 35 & 36 and
counter claim schedule item No.1 to 6 of the written
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statement of defendants No.4, 6 & 7 which is already
claimed by the defendant No.5 in her written statement
are all joint family properties and the plaintiffs and
defendants No.4 to 7 are entitled equal share in the
properties.
65. In view of my finding on Issue no. 4 to 6, 7 and 9, as
it is proved that the gift deeds are not binding on
defendant No. 4, 6 and 7, this court of the opinion that
these defendants are entitled for declaratory reliefs as
prayed for. The defendant no. 4, 6 and 7 have also
sought for the relief of permanent injunction to restrain
the plaintiffs and defendant No. 5 from alienating the
written statement schedule properties. These defendants
have also sought for the relief of permanent injunction to
restrain the plaintiffs from proceeding further with
construction in Item No. 4 of WS. So far as construction is
concerned, as this court opined that the plaintiffs and
defendants are in joint possession and are the
coparceners, and properties are joint family properties,
any construction will not effect the rights of the parties.
More than that, the plaintiffs and defendants have not
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sought the relief to reimburse the amount of
development made in these properties. Hence this court
of the opinion that the defendant No. 4, 6 and 7 are not
entitled for such relief to restrain construction. So far as
relief of permanent injunction for non alienation is
concerned, this court already granted temporary
injunction. If prior to drawing final decree, the plaintiffs
and defendant No.5 alienates the property by way of
sale, mortgage, then it will lead to multiplicity of
proceedings. Hence this court of the view that the
defendant No. 4, 6 and 7 are entitled for the relief of
permanent injunction to restrain the plaintiffs and
Defendant.No.5 from alienating the properties by way of
sale or mortgage. The defendant No. 4, 6 and 7 are not
entitled for remaining prayer of permanent injunction.
The plaintiffs as well as defendant No. 4 to 7 are entitled
for enquiry regarding the mesne profit of their respective
share in the properties. Hence I answered Issue no 12 in
the affirmative, Issue no. 13 partly in the affirmative,
Issue no. 14 partly in the affirmative, Issue no. 18 partly
in the affirmative, Issue no. 19 partly in the affirmative,
Issue no. 20 partly in the affirmative.
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66. Issue No. 21:- In view of my finding on Issue No. 1 to
20 and Addl Issue No. 1, I proceed to pass the following:-
ORDER
The suit of the plaintiffs and counter claim of the
defendant No.5, and counter claim of defendant no. 4, 6
and 7 are decreed as follows.
The plaintiffs and defendant no. 4 to 7 are entitled
for partition and separate possession of 1/6th share each
in plaint schedule Item no. 6, 9, 17, 19 to 29, 32, 33, 35,
36. The plaintiffs and defendant no. 4 to 7 are entitled for
1/6th share each in Item No. 1 to 6 of counter claim
schedule properties of defendant No. 4, 6, 7 (which is
equivalent to Item No. 2, 3, 4, 7, 8, 9 of counter claim of
defendant No.5). The prayer of the defendant No. 5
regarding the remaining item of the schedule are
rejected.
The prayer of defendant No. 4, 6, 7 with respect to
item no. 7 and 8 of their written statement schedule is
rejected.
The prayer of the plaintiffs regarding remaining
plaint schedule item no. 37 to 42 is rejected.
With regarding to Item No. 6 of the plaint schedule,
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an area of 7,200 Sq Ft wherein a complex of defendant
No. 8 to 10 is in existence namely Balaji complex is
excluded by holding that they are the bonafide
purchasers of 7,200 Sq.Ft.
With regarding to compensation of counter claim
item no.6, since the order is already passed permitting
the plaintiffs to withdraw 1/6th share each amount, the
defendant No. 4 to 7 are entitled for the remaining
compensation amount of 1/6th share each.
It is hereby declared that the gift deed dated
12.06.2015, rectification deed dated 15.06.2016, and
7.04.2017 executed by defendant no. 1 in favour of
plaintiff no. 1 in relation to Item No. 4 of counter-claim
schedule are not binding on defendant no. 4, 6 and 7. It is
hereby declared that gift deed dated 5.03.2004 executed
by defendant no. 1 in favour of plaintiff no. 2 with respect
to item no. 2 of the written statement schedule is not
binding on defendant no. 4, 6 and 7. It is declared that
gift deed dated 7.07.2004 executed by defendant no. 1 in
favour of plaintiff no. 2 with respect to item no. 3 of
written statement schedule property is not binding on
defendant no. 4, 6 and 7. It is hereby declared that the
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gift deed dated 5.04.2012 executed by defendant No. 1
in favour of defendant No. 5 with respect to item no. 5 of
written statement schedule property is not binding on
defendant no. 4,6 and 7. It is declared that the gift deed
dated 12.06.2019 executed by plaintiff no. 2 in favour of
plaintiff no. 1 with respect to written statement schedule
item no. 1 not binding on the defendant no. 4, 6 and 7.
The plaintiffs and defendant No. 4 to 7 are entitled
for enquiry regarding mesne profit in final decree
proceeding with their respective 1/6th shares in the
properties.
The permanent injunction is granted restraining the
plaintiffs and defendant No.5 from alienating,
encumbering, mortgaging the counter claim schedule
Item No. 1 to 6 of counter claim of defendant no. 4, 6 and
7 till drawing final decree.
The defendant No. 4 to 7 shall pay court fee with
respect to their 1/6th share of compensation of
counterclaim Item No. 6 of counterclaim of Defendant No.
4, 6 and 7.
Parties shall bear their own cost.
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Draw preliminary decree accordingly.
(Prepared by P.O. in the home office and some part of the
judgment dictated to SG-I, transcribed by him, corrected
and then pronounced by me in the open court on the 6th
day of APRIL 2026).
(MOHAN PRABHU),
LV Addl. City Civil & Sessions Judge,
Bengaluru.
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ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PLAINTIFF/S:
PW1 Sri.N.A.Venugopal LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANT/S: DW1 Smt.Amulya DW2 Sri.Adarsha Ravigopal DW3 Sri.a.R.Shivaram Reddy
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF
PLAINTIFF/S:
Ex.P-1 Death Certificate Ex.P-2 Portion of writtens tatmeent filed by D1, 2 and 3 Ex.P-3 Certified copy of orders in O.S.No.1927/2021 Ex.P-4 Certified copy of plaint in O.S.No.1927/2021 Ex.P-5 Certified copy of order on IA No.1 and 2 in O.S.No.5958/2022 Ex.P6 None photographs Ex.P7 Reply notice Ex.P8 Order sheet in C.C.NO.2652/2023 Ex.P9 First Information Report Ex.P10 Head of charge sheet in Cr.No.80/2021 Ex.P11 Written statement in O.S.No.4858/2022 Ex.P12 Plaint in O.S.No.4858/2022 Ex.P13 Certified copy of IA No.I Ex.P14 Certified copy of memo Ex.P15 Partnership deed dated 01.02.1973 192 O.S.No. 1990/2018
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF
DEFENDANT/S
Ex.D-1 Registered Partiton deed dated 31.03.1952
Ex.D2 Certified copy of judgment on admission
Ex.D3 Certified copy of Gift Deed dated 06.02.2024
Ex.D4 Certified copy of Partiton deed dated
15.10.2015
Ex.D5 Certified copy of partition deed dated
15.10.2015
Ex.D6 Certified copy of sale deed dated 23.10.1970
Ex.D7 Certified copy of Gift Deed dated 12.06.2019
Ex.D8 Certified copy of Gift Deed dated 07.07.2004
Ex.D9 Certified copy of Gift Deed dated 12.06.2015
Ex.D10 Certified copy of lease agreement dated
21.01.2019
Ex.D11 Certified copy of lease agreement dated
17.02.2020.
Ex.D12 Certified copy of lease agreement
Ex.D13 Certified copy of Memorandum of deposit of
title deeds executed by the plaintiff No.1 in
favour of SBI.
Ex.D14 to 6 photographs
19
Ex.D20 Certified copy of sale Deed of the year dated
28.10.1970
Ex.D21 Certified copy of Gift Deed dated 05.03.2004
Ex.D22 Xerox copy of sale deed dated 15.04.1974
Ex.D23 Certified copy of sale deed dated 04.05.1966.
Ex.D24 Certified copy of rectification deed dated
15.06.2016
Ex.D25 Another certified copy of rectification deed
dated 07.04.2017
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Ex.D26- Certified copy of Sale deed dt: 27.07.1972.
Ex.D27- Certified copy of Mutation Register Extract.
Ex.D28- Certified copy of Judgment in O.S
No.6617/2010.
Ex.D29- Certified copy of Decree in O.S
No.6617/2010.
Ex.D30- Copy of Judgment in R.F.A No.1353/2018.
Ex.D31- Downloaded copy of Withdrawal memo in
R.F.A No.1353/2018.
Ex.D32- Certified copy of order sheet in O.S
No.105/2023.
Ex.D33- Certified copy of plaint in O.S No.105/2023.
Ex.D34- Certified copy of Sale deed dt: 09.09.2002.
Ex.D35- Notarized attested copy of Death certificate
of Dasamma.
Ex.D36- Certified copy of E.C in form No.15.
Ex.D37- Certified copy of E.C in form No.16.
Ex.D38- Six Tax paid receipts.
Ex.D39- E-Katha standing in the name of 4th
defendant.
Ex.D40- Sale deed dt: 30.08.1993.
Ex.D41- R.T.C of Sy No.37 of the year 2025-26.
Ex.D42- R.T.C of Sy No.40 of the year 2025-26.
Ex.D43- R.T.C of Sy No.41 of the year 2025-26.
Ex.D44- Copy of Mutation.
Ex.D45- Seven R.T.Cs.
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Ex.D46- Mutation extract.
Ex.D47- R.T.C.
Ex.D48- Mutation.
Ex.D49- R.T.C.
Ex.D50- Mutation.
Ex.D51- R.T.C.
Ex.D52- Mutation.
Ex.D53- R.T.C.
Ex.D54- Mutation.
Ex.D55- Certified copy of Gift deed dt: 05.04.2012.
Ex.D56- Certified copy of Sale deed dt: 23.10.1970.
Ex.D57- Certified copy of Katha certificate.
Ex.D58- Certified copy of Katha extract.
Ex.D59- Certified copy of E.C.
Ex.D60- Certified copy of E.C.
Ex.D61- Certified copy of Notice dt: 03.12.2009
issued by B.B.M.P.
Ex.D62- Certified copy of order dt: 13.04.2012 in W.P
No.42047/2011.
Ex.D63- Certified copy of order dt: 08.01.2014 in
W.P No.42047/2011.
Ex.D64- Certified copy of order sheet in Misc.
No.634/2014.
Ex.D65- Certified copy of order dt: 30.01.2020 in
Misc. No.634/2014.
Ex.D66- 22 Photographs.
Ex.D66(a)- C.D of Ex.D66 photographs.
Ex.D66(b)- The Certificate U/s.65(b) of Evidence Act.
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Ex.D-70 Certified copy of Registered Partition Deed dt:
27.03.1945.
Ex.D-70(a) Typed copy of Ex.D70.
Ex.D-71 Original Schedule Description list dt:26.07.1937
standing in the name of N.M.Munishamappa.
Ex.D-72 Original Grant Certificate dt: 14.04.1938.
Ex.D-73 Original Valuation Certificate dt: 20.08.1970.
Ex.D-74 Certified copy of Record of Rights of the year 1970.
Ex.D-75 Certified copy of Record of Rights of the year 1976.
Ex.D-76 Certified copy of Index of Land of the year 1970.
Ex.D-77 Certified copy of Record of Rights of the year 1970.
Ex.D-78 RTC of the year 1965-66 to 1969-70.
Ex.D-79 RTC of the year 1965-66 to 1969-70.
Ex.D-80 RTC of the year 1965-66 to 1969-70.
Ex.D-81 RTC of the year 1965-66 to 1969-70.
Ex.D-82 RTC of the year 1965-66 to 1969-70.
Ex.D-83 RTC of the year 1965-66 to 1969-70.
Ex.D-84 RTC of the year 1965-66 to 1969-70.
Ex.D-85 Certified copy of Sale deed dt: 18.02.1995.
Ex.D-85(a) Readable copy of Ex.D85.
Ex.D-86 Certified copy of Sale deed dt: 18.02.1995.
Ex.D-85(a) Readable copy of Ex.D86.
Ex.D-87 Certified copy of Sale deed dt: 18.02.1995.
Ex.D-87(a) Readable copy of Ex.D87.
Ex.D-88 Katha Certificate.
Ex.D-89 Katha Extract.
Ex.D-90 Katha Certificate.
Ex.D-91 Katha Extract.
Ex.D-92 Property Tax receipt from the year 2021-22 to 2025-
196
O.S.No. 1990/2018
2026.
Ex.D93 to 95 Building License three in number.
Ex.D96 Three Photographs of building.
Ex.D97 Document for having obtained loan issued by
K.S.F.C.
LV Addl. City Civil & Sessions Judge,
Bengaluru.
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