Bangalore District Court
Barathi B S vs Devaraj B S on 10 July, 2026
1
O.S.No.4166/1995
KABC010018081995
IN THE COURT OF THE XXXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, AT BENGALURU (CCH-39)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
C/c. XXXVIII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 10th day of July, 2026
O.S.No. 4166/1995
Plaintiff : Smt. B. S. Bharathi,
W/o. B. Sadanand,
Aged about 75 Years
-Vs. Resident of No. 473,
10th Main, 6th 'A' Cross,
R.M.V. Extension,
Bangalore 560080.
(By Sri. VHB. Advocate)
Defendants: 1. B.S. Devaraj
S/o. B. Siddannaiah,
Since deceased by his LR's
1a. Smt. Vedavathi,
W/o. B.S. Devaraj,
Aged about 90 Years,
R/o. No. 455, 10th Main,
6th A Cross RMV Extension,
Bangalore 560080.
1b. B.D. Basavanna,
S/o. B.S. Devaraj,
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O.S.No.4166/1995
R/o. Diwans Estate,
Balupet,
Sakaleshpura Taluk,
Hassan District.
1c. Dr. B.D. Shashidhar,
S/o. B.S. Devaraj,
Since dead by his LR's
1c(a) Smt. Sanjeevini
W/o. Late B.D. Shashidhar
Aged about 62 Years
1c(b) Sri. Ajay
S/o. Late. B.D. Shashidhar
Aged about 35 Years
1c(c) Smt. Sahana
D/o. Late B.D. Shashidhar
Aged about 34 Years.
All are resident of H. No. 456,
11th Main Road,
6th A Cross,
RMV Extension,
Sadashivanagar,
Bengaluru-560 080.
1d. B.D. Prabhu Shankar,
S/o Devraj,
Aged about 57 years,
R/at.No.455, 10th Main,
6th 'A' cross,
RMV Extension,
Bengaluru-80
2. B.S. Mallikarjun,
S/o. B. B.Siddannaiah,
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O.S.No.4166/1995
Aged about 68 Years,
Coffee Planter,
Ballupet,
District Hassan.
3. Manoharamma
W/o. B. Siddalah
(Dead)
4. Tangamma
D/o. B. Siddannaiah
Since dead represented by LR's
4a. Yuvaraj
S/o. Kallegouda
Age Major, at Post Kesagodu,
Taluk Belur,
Dist. Hassan 573215.
4b. Lingaraju
S/o. Kallegouda
Age Major, At post Kesagodu,
Taluk Belur,
Dist. Hassan 573215.
4c. Nagaraju
S/o. Kallegouda
At Post Kallahalli,
Kentur Tq. Alur,
Dist. Hassan 573213.
4d. Radha
W/o. N.S. Raju
C/o. B.B. Neelakantappa,
Dept of Computer Engineering
Malnad College of Engineering.
Hassan 573201.
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O.S.No.4166/1995
4e. Rukmini
W/o. B.M. Devappa,
At Post Banavase,
Ballupet,
Tq. Sakleshpura,
Dist. Hassan-573214.
4f. Kamakshi,
W/o. M.M. Jayadev,
At. Post, Mugallihalli,
Tagare Tq. Belur,
Dist. Hassan 573215.
5. Kusuma
W/o. S. Gurudev,
Aged about 9 Years,
No. 472, 10th Main,
R.M.V. Extension,
Bangalore 80.
6. Sundari
W/o. S. Gangadhar
Since dead Represented by LR's
6(a) Arun Prasad,
S/o. Late S.Gangadhar,
Aged about 53 years
6(b) Roopa Prasad,
D/o Late S.Gangadhar,
Aged about 49 years
6(c) Ganesh Prasad,
S/o Late S.Gangadhar
Aged about 45 years
All are residing at :
Jal Sapna Apartment,
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O.S.No.4166/1995
Flat No.203, 4th Cross,
80ft Road, RMV 2nd Stage,
Bengaluru- 560054
7. B.D. Vedavati
W/o. B.S. Devaraj,
Aged 90 years,
Resident of 455,
11 Main Road, 6th 'A' Cross,
R.M.V. Extension, Bangalore-80
8. B.S. Suguna
W/o. B.S. Mallikarjun,
Aged 60 years,
Resident of Ballupet,
Dist. Hassan
9. Shailendra Babu
S/o. Siddaramanna,
Age Major,
R/o. No. 70 Vth Cross,
1st Block, R.M.V. IInd Stage,
Bangalore -94.
D1 : By Sri. RMV.
D2 : By Sri.JK. Advocates)
28.06.1995
Date of Institution of the suit
Partition & Separate
Nature of the suit Possession
Date of the commencement
of recording of the Evidence. 25.07.2003
Date on which the judgment
10.07.2026
is pronounced.
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O.S.No.4166/1995
Month/s Days
Total duration 31 0 12
JUDGMENT
1. The Plaintiff one B.S. Bharathi has maintained the present
suit for the relief of Partition & Separate Possession to an extent
of 1/7th share and consequential relief of mesne profits and to
declare the transactions that are taken place between the
members of the family as not binding on the Plaintiff.
2. The brief facts of the case of the Plaintiff is that, the
Plaintiff is the daughter of Late Sri. B.Siddannaiah and that
B.Siddannaiah S/o. Rastemane Mallegowda had two wives. He
had married the 2nd wife Manoharamma, the 3rd Defendant
herein after the demise of his 1st wife and the 1 st wife is said to
have given birth to two children namely Tangamma and Devaraj,
the Defendants 1 and 4. The Defendant No.3 gave birth to 3
daughters and one son. They are Smt. Kusuma, the Defendant
No.5, Bharati B.S. the Plaintiff herein and Smt. Sundari the
Defendant No.6 and B.S. Mallikarjuna, the Defendant No.2. And
Defendant No.7 by name Smt. Vedavati is the wife of Defendant
No.1. And Defendant No.8 is the wife of Defendant No.2.
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O.S.No.4166/1995
3. It is also the case of the Plaintiff that the Plaintiff and
Defendant Nos.1 to 6 constituted Hindu Joint Family governed
under Mitakshara law. And that late B.Siddannaiah had Inherited
properties from his family by way of a partition and was also a
coffee planter. And that out of the properties inherited, he had
purchased the properties out of Joint Family funds and the
properties shown in schedule-A to D are the joint family
properties. And that the family of the Plaintiff is said to be quite
rich and that the father of the Plaintiff B.Siddannaiah is said to
have improved the coffee plantation and was also an income
tax, wealth tax assessee and thereby Siddannaiah would
purchase the properties out of the joint family in the name of the
minor sons and created Sale Deeds in favour of his daughters-
in-law the Defendant No.7 & 8 and also in the name of his
second wife Manoharmma the Defendant No.3 herein in order to
manage his huge income.
4. And that the suit properties mentioned in Schedule ‘A’ to
the plaint, though stands in the name of different individuals
such as Defendants 1 to 3, Defendant No. 7 and 8, they are all
joint family properties since all the members belong to the joint
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O.S.No.4166/1995
family. In order to avoid avoid income tax and also for
augmenting the income of the Joint Family and to regulate the
tax payment, the Plaintiff has contended of her father having
created documents in the name of the members of the Joint
Family. And that the properties mentioned in Schedule-B are the
properties purchased by the Joint Family in their individual name
out of the joint family funds. And that the properties mentioned in
Schedule “B” are also the joint family properties and created by
way of nominal sale deeds.
5 And that one acre of land was also purchased by the
members of the family Siddanniah and B.Basappa, the younger
brother of Siddanniah, which was acquired by the then
Development Board. And Siddanniah’s and his brother B.
Basappa had filed a case against the then Development board.
And during the pendency of the said litigation, the Development
Board had formed 12 plots in one acre of land. And it was
decided to allot those 12 plots to the members of Siddanniah’s
family and at that time Siddanniah and his family members
though to get the registration of 3 plots in the name of B.S.
Devaraju, the Defendant No.1, and 3 plots in the names of
Mallikarjuna and 3 plots to the family of B.G. Somappa, the
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O.S.No.4166/1995
cousin of B.Siddanniah and the remaining 3 plots to B.Basappa,
the younger brother of Siddanniah. And thereby, the properties
ie., items 1 to 6 in Schedule “C” are also claimed to be the Joint
Family properties.
6. The Plaintiff has also contended that house No.471 to 473
were allotted and subsequently registered in the name of
Mallikarjun, the Defendant No.2. And that the House Nos. 455,
456 and 435 were decided to be allotted in the name of the
Defendant No.1 and the same was registered in the name of his
son. And that at time of allotment of the said site in the name of
the Defendant No.2, the Defendant No.2 was a minor, hardly
aged 10 years. And that item No.7 and 8 that are reflected in
the Schedule “C” properties are also joint family properties,
these properties were purchased by the Defendants out of the
joint family funds and for the purpose of convenience formed a
partnership in respect of item No.7 and a company for item No.8
of the schedule “C” were also formed and that the Partners of
partnership firm and the Directors of the company are none
other than the family members. And that, Item No.9 of the
Schedule “C” is an ancestral house and item No.10 of
C-schedule is a newly constructed house out of the joint family
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O.S.No.4166/1995
funds. And that item No.1 in the schedule “D” are all the joint
family jewels and silver articles belonging to the joint family
which were in existence since the times of their forefathers.
7. It is also the case of the of the Plaintiff that apart from the
properties mentioned in Schedule “A” the Plaintiff’s father, Late
Siddanniah was holding properties in Daitapur of Hassan District
in Survey No.36/2, measuring 51 Acres and Survey No.1/3
measuring 38 guntas which were sold to 3rd parties to purchase
other valuable properties. Likewise 8 Acres 18 guntas of land in
Survey No.15 of Tippapur village, Hassan District was also sold
and Survey No.33 of the Navilahalli village, out of 23 acres 6
guntas except 29′ x 45′ entire extent is said to have been sold
and that survey No.20 out of 13 acres 7 guntas of Navilahalli
village, 2 acres 20 guntas is said to have been sold. And the
amount has been utilized by the Defendants 1 and 2 to purchase
other valuable properties.
8. And that the Plaintiff is residing in house No. 473 at item
No.1 in Schedule “C” Property as a member of the joint family
ever since 1974 along with her husband and sons and till date
the Plaintiff is residing in the said house without any Interruption.
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O.S.No.4166/1995
And that item No. 3 to the Schedule “C” is in occupation of
Defendant No.5 who is residing there along with her husband
and children. And Defendant No.2 for the purpose of income tax
and for regularization of the business accounts has got a
nominal sale deed executed by the husband of the Defendant
No.5. Likewise the Defendant No.2 had regularized the Plaintiff
to give Rs.450/- per month to show that the amount as the rent
of the house No.473 for some period, stating that he had to
adjust his business accounts. And the Plaintiff being sister
agreed for the same. And the Defendant No.2 after 2 years or
so, had intimated the Plaintiff that his accounts have been
adjusted and there was no necessity of any further adjustment.
And that the Plaintiff is residing in the said house No.473 as a
member of the joint family.
9. And that the 2nd Defendant with an intention to sell the
house No.473 to the 3rd parties wherein the Plaintiff is residing
as joint family members, in this connection the income tax
authorities are said to have come near the building to inspect the
same on 20.06.1995 and thereby the Plaintiff came to know that
the Defendant No.2 is trying to alienate the Property in order to
avoid the share of the Plaintiff. Therefore, based upon the
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O.S.No.4166/1995
cause of action that is said to have arisen on 23.06.1995 when
the Defendants evaded to give possession of 1/7th share of the
Plaintiff in the Suit Schedule Properties, the Plaintiff has
approached this Court by way of the present suit.
10. The Defendant No.1 and 7 have filed their written
statement and have contended that the suit of the Plaintiff is
misconceived and not maintainable and there is no existence of
Joint Family and that the Plaintiff is not at all a joint owner in
respect of the Suit Schedule Property. And that the Plaintiff is
not entitled to any relief claimed for in the suit. And that the
Plaintiff has suppressed true and real facts and has filed the
above suit and denying that the Plaintiff and Defendants 1 to 6
constituted Hindu Joint Family governed under the Mithakashara
Law, these Defendants have denied that late Siddanniah has
inherited properties from his father Rasthemane Mallegowda as
a member of Joint Family in a partition. And further admitted of
the fact that late Sri Siddannaiah was a coffee planter and
denied the other aspects of the plaint more particularly that
schedule-A, schedule-B and schedule-C & D properties are
acquired by way of Joint Family funds and out of coffee
plantation. And further denied that the Plaintiff and her family
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was rich and became very rich out of coffee plantation and
further denied of Siddannaiah having acquired huge properties
in the name of the members of the Joint Family. Thereby the
entire written statement is with regard to denial. And also denied
of the Suit Schedule Properties being Joint Family properties.
11. The written statement of Defendant No.1 and 7 are more
or so the denial of the entire case of the Plaintiff and contended
at para-20 that the Court fee paid is insufficient since the Plaintiff
is not in possession of the suit properties and that she is residing
in the Property bearing No.473 as a tenant. And that the Plaintiff
has not approached the Court with clean hands and has
suppressed the true facts and that the Plaintiff is making unjust
claim.
12. And that Defendant No.1 and 7 have specifically
contended that B.S. Siddannaiah was the kartha of the Joint
family consisting of and himself and his two sons i.e., the 1 st
Defendant and 2nd Defendant and on 30.06.1956 there was a
partition effected amongst the members of the said Joint Family
and that the Plaintiff was allotted with 1/17th share and the same
has been paid to her through her mother as the Plaintiff was a
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O.S.No.4166/1995
minor at that time by way of a registered partition deed dated
30.06.1956, and the 3rd Defendant has acknowledged the receipt
of the same under the said partition deed. And that on
30.05.1958 a supplementary partition deed also came to be
executed by virtue of which the Plaintiff is said to have have got
Rs. 20,000/- and the Plaintiff who was minor at that time was
represented by her natural guardian/mother, who was also a
party to the said supplemental partition deed and that the
Plaintiff having received was was being paid in the said
Registered partition deed has suppressed the said facts.
13. It is also contended by these Defendants that B.S.
Siddannaiah had executed a settlement deed 27.10.1956
settling his share in favour of his two sons later by way of a deed
dated 28.12.1966 the revoked the settlement deed dated
27.10.1956. And that said B.S. Siddannaiah is said to have
demised on 06.09.1980 and he had executed a registered Will
dated 30.01.1980 and a codicil dated 06.08.1980. And that the
Defendant No.1 and 7 ever since the date of partition the
Defendant No.1 has been in exclusive possession and
enjoyment of the properties allotted to their shares by virtue of
the partition. And that the 1 st Defendant has been residing
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separately since 1974 and he is paying separate income tax and
this fact of partition is been made known to all the family
members and it was not at all a secrete. And that the Plaintiff’s
marriage was performed in the year 1968 and ever since the
date of her marriage, she has been living with her husband
separately and the partition is said to have taken place in the
year 1956 and the members have taken their respective shares
and are in exclusive possession thereof as absolute owners.
And that the Plaintiff has never been in joint possession of any of
the properties belonging to Defendants No.1 and 7 and that
there is no joint family property available for partition.
14. And that the Defendant No.7 is the wife of 1st Defendant
and unnecessarily only with an intention to harass the
Defendants No.1 and 7, this Defendant No.7 is also made a
party to the suit and further specifically contended that the suit of
the Plaintiff is not maintainable and that there is no Joint Family
which has remained undivided and that the suit properties are
not at all the Joint Family properties and the properties are not
available for partition in any manner and that the Plaintiffs
ceased to be a member of Joint Family after her marriage and
that she belongs to her husband’s family ever since the date of
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her marriage. That the suit is hopelessly barred by limitation
since the partition is said to have taken place as on 30.06.1956.
Hence, on these and other grounds the Defendants 1 and 7
have sought for dismissal of the above suit.
15. Defendant No.1c(a) to 1c(c) have filed their written
statement contending that the suit of the Plaintiff is barred by
limitation and that the Plaintiff has followed illegal and unfair
methods and has filed the suit only with an intention to cure the
effect of limitation and hence sought for dismissal of the above
suit.
16. Defendant No.3, 4, 5 & 6 have filed their written statement
and have denied the averments of the plaint and contended that
there was a Family Partition effected in the year 1956 and that
after the said partition, the Defendants are enjoying the
properties that has fell to their shares and the Plaintiff was given
a share by way of supplemental partition in the year 1958 and
that the partitions had taken place and that in view of the the
said partition, the suit properties have lost its identity as Joint
Family properties and that the suit is not maintainable and the
entire remaining paragraphs are denied and contended that the
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Plaintiff has no right to seek for partition since the partition
effected in the Joint Family have all acted upon and that there is
no cause of action to the suit. Hence, on these and other
grounds the Defendants 3, 4, 5 and 6 have sought for dismissal
of the above suit.
17. Defendant No.2 and 8 have filed their written statement
and have denied the averments of the Plaint and the G.Tree put
forth by the Plaintiff is also denied and contended that the
Plaintiff and the Defendants 1 to 6 does not constitute any
Hindu Joint Family and also contended that B.S. Siddannaiah is
said to have demised on 07.09.1980 and that he had left a Will
which is Registered as on 30.01.1980 and that a codicil is also
executed and it is a Registered Will and after the lapse of 15
years from the date of said Will and the death of said B.S.
Siddannaiah, the Plaintiff has come out with the present suit and
that the Plaintiff is not a legatee under the said Will. And that
after the partition the Property acquired by the Defendants are
their individual properties and that the Plaintiff nor any one has
got any claim on the same. And that the Court fee paid is
insufficient and that B.S. Siddannaiah nor his children have got
any right, claim in the properties that was purchased by
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Defendant No.8 and that item No.4 and 6 belong to the 1 st
Defendant exclusively since it has been allotted by BDA in their
respective name. And that the Joint Family has got nothing to do
with item No.7 and 8 of C-schedule Property and the averments
of the plaint in so far as claiming that it is the Joint Family
Property, whereby these Defendants have casted strict burden
of proof on the Plaintiff to prove that the said item No.9 and 10 of
C-schedule properties are also the Joint Family properties. And
denying that the Plaintiff is residing in item No.1 of the C-
schedule Property as a Joint Family member on the other hand
these Defendants have contended that the Plaintiff is a tenant
for a sum of Rs.450/- rent per mensem.
18. And further these Defendants have contended that, the 2nd
Defendant has already sold the premises No.173 which is the
first item in ‘C’ Schedule property and the Plaintiff is aware of the
same yet he has challenged the said sale. And that 1 st
Defendant and the 2nd Defendant and late Siddanniah had
constituted a Hindu Undivided joint family and as a co-parcener
they had effected partition by means of a Registered Partition
deed dated 30.6.1956. And after 30.6.1956 there is no joint
family consisting of Plaintiff and Defendants No.1 to 6. And as
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such the entire theory put forth by the Plaintiff so far as the
constitution of Joint Family and the suit Property being Joint
Family properties are all false and that on 30.5.1988 a
supplement partition deed is said to have been executed and
Plaintiff being the party to the said partition deed has received
certain amount. And that the Property was in respect of
remaining property under the partition deed dated 30.6.1956.
And after the said partition, the Plaintiff has declared the said
amount in her Income Tax Return as she has acquire the said
amount by wqy of partition in the family and was continuously
assessed under the Income Tax for the said amount. And that
Plaintiff has come out with a false claim that she is a membes of
the joint family though a family partition is said to have taken
place. And that in the year 1964, that is as on 31.3.1964 said
Siddanniah has sold the property in favour of the 1st and 2nd
Defendant. And thus the Defendant 1 and 2 have became the
absolute owner of the property purchased under a sale deed
dated 31.3.1964. And that the 8th Defendant had acquired 5
acres out of 30 acres 70 guntas in Survey No.46 of Mallathalli
village, Alur Taluk, by means of a registered gift deed dated
22.6.1977. In fact, the Defendants No.1 and 2 possess certain
properties jointly purchased by them and that they effected the
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partition of these properties which they held jointly by means of
registered partition deed dated 16.6.1977. And as such, the
properties are standing in the name of Defendants 2 & 3 and
that it has got nothing to do with the Joint Family.
19. And further contended that the sale deed and the gift deed
standing in the name of Defendant No.2 and 3 and the partition
deed effected in between the Defendants 1 and 2 and their
father in the year 1956 and supplemental partition of the year
1958 and the partition between the 1st and 2nd Defendant in
respect of the same properties held jointly by them in the year
1977 and the Will of the year 1980 are all binding on the Plaintiff.
And that the said deeds have come into existence and that after
the lapse of statutory period the Plaintiff has filed a false suit
which is barred by limitation. And that the Property by 2 nd
Defendant in the year 1977 under a partition was subsequently
partitioned by the 2nd Defendant, his wife and son under
registered a partition deed dated 15/8/1981. And that on these
circumstances these Defendants claim that by virtue of adverse
possession also they have become the absolute owners of the
said Properties and that the Plaintiff had full knowledge of these
facts and only with an intention to harass the Defendants has
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come out with a false claim. Hence, on these and other grounds
these Defendants No.2 & 8 have sought for dismissal of the
above suit.
20. The legal representatives of Defendant No.6 ie.,
Defendant No.6(a), (b) & (c) have filed their written statement
after coming on record and have contended that the property
was acquired under a partition and thereby it is the self-
acquired property of the said member and that partition
admittedly took place as on 30.06.1956 and the
Supplementary Deed dated 30.05.1958 was also executed by
and between the parties to the said deed and that the Plaintiff
represented by her mother was party to the said partition and
therefore it was necessary for the Plaintiff to file a suit seeking
the relief of setting aside the said partition deed and
supplementary partition deed since no such relief is sought the
Plaintiff is not entitled for declaration of her right and that
under the Hindu women rights to property Act 1933 as well
Siddannaiah and the male members were entitled to have a
share and the Plaintiff had no right in the property and that
Siddanaiah had only 1/4th share and even the said property
was the self-acquired property and that as per the Hindu
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Succession Act, Section 8, the grandchildren are not the legal
heirs and therefore under Section 8 as well, the Plaintiff is not
entitled and further contended that even under the Amended
provisions of the Hindu Succession Act 2005, the partition
effected prior to 31.12.2004 are binding and it cannot be
reopened and that in the case of Vineeta Sharma v/s. Rakesh
Sharma reported in (2020) 9 SCC 1 as well there is a direction
to this court to dispose off the matter within 6 months and that
As per Koshy Abraham v/s. Smt. B.K. Jayalakshmi and others
the suit is barred by time and the suit for cancellation of deed
must be filed within 3 years from the date of execution of the
said deed or from the date when the ward attains majority.
And that under Article 110 of Limitation Act, the suit must have
been filed within 12 years and that the partition having been
acted upon, the entries made in the document produced by the
Plaintiff such as the record of rights and index are not liable to
be reopened now and also specifically contended that the
property at Rajmahal Villas Extension was purchased by
Basappa and that Siddannaiah has no right to the property
and the allotment of sites in favour of 2nd Defendant cannot be
questioned by the Plaintiff and there is no pleading at all in this
behalf and admittedly the property was purchased by
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Basappa, the brother of Siddannaiah. The allotment is made
at the instance of Basappa and therefore no rights could be
claimed in respect of the property belonging to the junior uncle
of the Plaintiff and the suit in respect of those properties i.e.
the contention raised with regard to the said items mentioned
in C-Schedule is not maintainable at all. And that the Plaintiff
has not described the properties allotted to the share of
Siddannaiah by way of partition and there is no properties
mentioned in the partition of the year 1932 and the property
described in the Schedule-A to D. Hence, on these and other
grounds the Defendants 6(a) to (c) have also sought for
dismissal of the above suit.
21. Based upon the above pleadings of the parties, my
learned predecessor in office has framed the following issues :-
ISSUES
1. Whether the Plaintiff proves that all the properties
described in schedule A, B, C and D to the plaint are all
Joint Family properties acquired from out of the income
from ancestral and Joint Family properties?
2. Whether the Plaintiff proves that, the partition or
settlement deeds that have come into existence between
family members in respect of schedule properties, are
24
O.S.No.4166/1995sham documents and have not been acted upon, by the
parties?
3. Whether the Defendants prove that the properties
described in schedule A to D to the plaint are not Joint
Family properties?
4. Whether Defendants prove that they are the absolute
owners of their respective properties out of schedule A to
D in respect of which the Sale Deeds have been
executed in their favour?
5. Whether the Defendants prove that Sri Siddannaiah
died leaving behind the Will dated 6/8/1980 bequeathing
all his properties?
6. Whether the Defendants prove that during the lifetime
of Siddannaiah there was a family partition in the year
1956, and thereafter each one of the sharers started
enjoying their respective properties allotted to their
shares?
7. Whether the Defendants prove that under the
Supplementary Partition Deed of the year 1958, Plaintiff
has been given her share and since then she has been in
possession and enjoyment of the properties allotted to
her share, as such, the documents has been acted upon?
8. Whether the Defendant No.8 prove that as the
Plaintiff was married prior to 1990, she has no right to
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O.S.No.4166/1995demand share in any of the properties?
9. Whether the Defendants prove that the Plaintiff is not
in joint possession of any of the schedule properties, as
such, the Court Fee paid on the plaint is insufficient?
(Already answered in the Negative by virtue of order
dated 19/08/2013)
10. Whether the Plaintiff is entitled for the relief of
partition and delivery of possession of 1/7th share in the
schedule properties?
11. To what order and decree parties are entitled to?
Additional Issue dated 06.12.2013
1. Whether the suit is barred by limitation?
Additional Issue dated 12.01.2024
1. Whether the suit is barred by limitation?
22. Based upon issue No.9 ie., with regard to the Court fee is
concerned, there is already a finding as on 19.08.2013.
23. The Plaintiff in order to substantiate her claim has
examined her husband one B. Sadanand as PW.1 and also she
has subsequently got examined herself as P.W.2 and one
26
O.S.No.4166/1995
Chandrashekar as P.W.4. and got marked Ex.P1 to P66
documents. Per contra Defendants examined themselves as
DW.1 and got examined DW.2 as well and got marked Ex.D1 to
D40 documents.
24. Learned Counsel for both sides have relied upon citations
in support of their claim and have also addressed their written
arguments and oral arguments as well. Perused the same.
25. My findings to the above issues are as under :-
Issue No.1 .. In the Negative
Issue No.2 .. In the Negative
Issue No.3 .. In the Affirmative
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 Negative
Issue No.10 .. No, Not entitled.
Addl. Issue No.1 dated 06.12.2013 : .. In the Negative
Addl. Issue No.1 dated 12.01.2024 : .. In the Negative
Issue No.11 .. As per final order for the following:
REASONS
26. Issue Nos.1, 2 & 3 :- Issue No.1 is casted upon the
27
O.S.No.4166/1995
Plaintiff to prove that all the properties described in Schedule A,
B, C and D to the plaint are all joint family properties acquired
from out of the income from ancestral and joint family properties.
And further the burden under Issue No. 2 is also casted upon
the Plaintiff to prove that the Partition or the Settlement Deeds
that are come into existence between the family members in
respect of the Schedule properties are sham documents and
have not been acted upon by the parties. Contrary to the same,
the contention of the Defendants is that the A to D Schedule
properties are not the Joint Family properties. Therefore, if
Plaintiff is successful in establishing Issue No. 1 and 2, the
Defendant will fail in establishing the Issue No. 3 and further
Issue No. 3 is a negative issue whereby cogent evidence cannot
be led by the Defendant to prove that there is no Joint Family.
The Defendant cannot prove a non-existing fact. Therefore the
entire burden of establishing the nature of the Suit Schedule
Property is casted upon the Plaintiff. As such, the Issues 1 and
2 will have a consequence on the findings of Issue No. 3.
Therefore, the Issues 1 to 3 are taken together for common
consideration. A-schedule properties consists of about 28 items
of land in different survey numbers of Hassan District.
B-schedule consists of 6 survey numbers of properties situated
28
O.S.No.4166/1995
at Hassan District. C-schedule consists house Properties
including Republic hospital and old ancestral house at Ballupete
and at RMV Extension. And D-schedule properties are movable
properties consisting of 10 Cars, 2 Tractors and Lorries and
jewelries of gold and silver articles worth Rs.10,00,000/-.
27. Plaintiff has maintained the above suit seeking 1/7th share
in the Suit Schedule Properties and reiterating the plaint
averments has contended that the Suit Schedule Properties are
the Joint Family properties. Before discussing the ocular
evidence, it is necessary to look to the documentary evidence
relied by both the Plaintiff and the Defendants herein.
28. Ex.P1 is the notarized Power of Attorney executed by
B.S. Bharathi in favour of her husband. Ex.P2 is the certified
copy of Sale Deed dated 07.09.2000 executed by B.M.
Siddannaiah Siddesh S/o. B.S.Mallikarjun in favour of
B.D.Basavanna S/o. B.S. Devaraj. In the recitals of the said
document it is reflected that, schedule-A site was allotted to B.S.
Mallikarjun, the father of the vendor herein by the CITB and that
he was in possession and handed over to one B.S. Mallikarjun
vide memo dated 11.05.1965. And further the said recitals of the
29
O.S.No.4166/1995
said document reads that on 15.08.1981 there was a partition in
the family of B.S. Mallikarjun, wherein all the family properties
were divided amongst himself, his son and his wife, namely B.S.
Siddesh and Smt. Suguna Mallik by virtue of Partition Deed
dated 15.08.1981. A-schedule Property is the Property bearing
No.471, situated at 10th Main Road, Rajmahal Vilas Extension,
Bengaluru, measuring East to West 47.3 feet, North to South 60
feet, in all measuring 2838 sft., consisting of a residential
house.
29. Ex.P3 is against another certified copy of a Sale Deed
dated 07.09.2000 executed by B.M. Siddannaiah Siddesh S/o.
B.S.Mallikarjun in favour of B.D. Prabhu Shankar S/o. B.S.
Devaraj. And the document also recites the same recitals as
that of Ex.P2. But the Property is reflected as Property bearing
No.471, situated at 10th Main Road, Rajmahal Vilas Extension,
Bengaluru, measuring East to West 47.3 feet, North to South 60
feet, in all measuring 2838 sft., consisting of a residential
house.
30. Ex.P4 is the Sale Deed dated 07.09.2000 executed by
B.M. Siddannaiah Siddesh S/o. B.S.Mallikarjun in favour of B.D.
30
O.S.No.4166/1995
Shashidhar S/o. B.S. Devaraj, reflecting the same recitals as
that of Ex.P2 in respect of Property bearing No.471, situated at
10th Main Road, Rajmahal Vilas Extension, Bengaluru,
measuring East to West 47.3 feet, North to South 60 feet, in all
measuring 2838 sft., consisting of a residential house.
31. Further, Ex.P5 to 20 are the the Index of lands. Ex.P21 is
the letter addressed by B.S. Bharathi to the Member, Income Tax
Appropriate Authority, Bengaluru, seeking issuance of NOC for
transfer by sale of Property bearing No.473 dated 22.06.1995,
whereby she has represented the Income Tax Authority that the
as Joint Family Property belonging to family members of late
B.Siddanniah. This is furnished in order to establish the cause
of action to the suit, which is dated 22.06.1995.
32. Ex.P22 is the receipt issued by BWSSB. Ex.P23 to 26 are
the electricity bills. Ex.P27 to 29 are the telephone bills, which
reflects that B.S. Bharathi is residing at Rajamahal Vilas,
Sadashivanagar in one of the properties ie., No.473. Ex.P27
also reflects of the telephone bill dated 06.09.1980.
33. Ex.P30 is the certified copy of the deed dated 15.11.1962.
Typed copy of Ex.P30 is also produced which is dated
31
O.S.No.4166/1995
15.11.1962. The recitals of the said document reads as under :-
“ರಸ್ತೆ ಮನೆ ಮಲ್ಲ ೇಗೌಡರ ಮಕ್ಕ ಳು ಬಿ. ಶಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರಿಗೆ
ಇದೇ ಬಾಳು ಗ್ರಾ ಮದಲ್ಲಿ ರುವ ಬಿ.ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರ ಮಗ
ಸಮಾರು ಓಂಬತ್ತು ವರುಷದ ಬಿ.ಎಸ್, ಮಲ್ಲಿ ಕಾರ್ಜುನ
ಮೈನರ್ ಗಾರ್ಡಿಯನ್ ತಾಯಿ ಮನೋಹರಮ್ಮ ಬರೆದುಕೊಟ್ಟ
ಕ್ರ ಯಪತ್ರ ಏನೆಂದರೆ ನಿಮಗೆ ಅರವತ್ತು ವರ್ಷವಯಸು
ತುಂಬಿದ ಪ್ರ ಯುಕ್ತ ನಡೆಸಲಿರುವ ಶಾಂತಿಕಾರ್ಯದಲ್ಲಿ ನೀವು
ಮಾಡಬೇಕಾದ ಸಂಧರ್ಬ ಓದಗಿರುವುದರಿಂದಲೂ ಈ ಬಗ್ಗೆ
ನಿಮ್ಮ ಸ್ವಾ ಧೀನದಲ್ಲಿ ಈ ಊರಿನ ಸುತ್ತ ಮುತ್ತ ಬೂಧಾನಕ್ಕೆ
ಕೋಡಲು ಜಮೀನು ಇಲ್ಲಿ ದ್ದ ರಿಂದಲೂ ನಿಮ್ಮ ಅಪೇಕ್ಷೆ ಮೇರೆಗೆ
ಸದರಿ ಬೂಧಾನಕ್ಕಾ ಗಿ ನಾನು ನಿಮಗೆ ನನ್ನ ಬಾಬ್ತು ಈ ಕೆಳಗೆ
ಪೆಡ್ನು ಲಿನಲ್ಲಿ ಕಾಣಿಸಿರುವ ಜಮೀನನ್ನು ಎರಡು ನೂರು
ರೂಪಾಯಿಗಳಿಗೆ ಶುದ್ಧ ಕ್ರ ಯಕ್ಕೆ ಕ್ಯೂ ಟ್ಟಿ ರುತ್ತ ೇನೆ. ಕ್ರ ಯದ
ಮೊಬಲಗು ಎರಡು ನೂರುರೂಪಾಯಿಗಳನ್ನು ನಮ್ಮ ಮತ್ತು
ನಿಮ್ಮ ಪುಸ್ತ ಕಗಳಲ್ಲಿ ಜಮಾ ಖರ್ಚು ಮಾಡಿಕೊಳ್ಳು ವುದರ
ಮೂಲಕ ಪೂರ್ತಿಯಾಗಿ ನನಗೆ ಸಂದಾಯವಾಗಿರುತ್ತೆ . ತನಗಾಗಿ
ಮತ್ತು ಮೈನರ್ ಬಿ.ಎಸ್. ಮಲ್ಲಿ ಕಾರ್ಜುನರವರ ಪರವಾಗಿಯೂ
ಸಹ ಗಾರ್ಡಿಯನ್ ಮನೋಹರಮ್ಮ .” which fact is
highlighted by the Plaintiff counsel in the Arguments.
34. Ex.P31 is the is the mutation. Ex.P32 is the Sale Deed
32
O.S.No.4166/1995dated 15.11.1962, Typed copy of Ex.P32 is also produced which
is dated 15.11.1962. The recitals of the said document reads as
under :-
“ರಸ್ತೆ ಮನೆ ಮಲ್ಲಿ ಗೆಗೌಡರ ಮಕ್ಕ ಳು ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರಿಗೆ ಇದೇ
ಬೆಳ್ಳು ಪೇಟೆಯಲ್ಲಿ ರುವ ಬಿ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರ ಮಗ ದೇವರಾಜ
ಬರೆದು ಕೂಟ್ಟ ಕ್ರ ಯಪತ್ರ ಎನಂದರೆ ನಿಮಗೆ ಅರವತ್ತು ವರ್ಷ
ವಯಸ್ಸು ತುಂಬಿದ ಪ್ರ ಯುಕ್ತ ನಡೆಸಲಿರುವ ಶಾಂತಿ
ಕಾರ್ಯದಲ್ಲಿ ನೀವು ಭೂದಾನ ಮಾಡಬೇಕಾದ
ಸಂದರ್ಭವಾಗಿರುವುದರಿಂದಲೂ ಆ ಬಗ್ಗೆ ನಿಮ್ಮ
ಸ್ವಾ ಧೀನದಲ್ಲು ಈ ಊರಿನ ಸುತ್ರ ಮುತ್ತ ಭೂದಾನಕ್ಕೆ
ಯೋಗ್ಯ ವಾದ ಜಮೀನು ಇಲ್ಲ ದ್ದ ರಿಂದಲೂ ನಿಮ್ಮ ಅಪೇಕ್ಷೆ
ಮೇರೆಗೆ ಸದರಿ ಭೂದಾನಕ್ಕಾ ಗಿ ನಾನು ನಿಮಗೆ ನನ್ನ ಬಾಬು ಈ
ಕೆಳಗೆ ಶೆಡ್ಯೂ ಲಿನಲ್ಲಿ ಕಾಣಿಸಿರುವ ಜಮೀನನ್ನು ಮೂರುನೂರು
ರೂಪಾಯಿಗಳಿಗೆ ಶುದ್ಧ ಕ್ರ ಯಕ್ಕೆ ಕೂಟ್ಟ ರುತ್ತ ೇನೆ ಕ್ರ ಯದ
ಮೂಬಲಗು ಮೂರು ನೂರು ರುಪಾಯಿಗಳನ್ನು ನಿಮ್ಮ ಮತ್ತು
ನಮ್ಮ ಪುಸ್ತ ಗಳಲ್ಲಿ ಜಮಾ ಖಚು೯ಮಾಡಿಕೂಳ್ಳು ವುದರ
ಮೂಲಕ ಪೂರ್ತಿಯಾಗಿ ಸಂದಾಯವಾಗಿರುತ್ತ ದೆ ಬಾಕಿ ಎನೂ
ಬರಬೇಕಾಗಿಲ್ಲ ಕ್ರ ಯ ಸ್ವ ತ್ತು ಯಾರಿಗೂ ಯಾವ
ವಿಧವಾಗಿಯೂ ಪರಭಾತ ಅಗಿರುರುವುದಿಲ್ಲ ಇದರ ಬಗ್ಗೆ
ಯಾವ ತಕರಾರು ಇರುವುದಿಲ್ಲ . ಅಂತಹ ತಕರಾರೇನಾದರು
ಊದ್ಭ ವಿಸದಲ್ಲಿ ನಾನೇ ಪರಿಹರಿಸಿಕೋಡುತ್ತ ೇನೆ.”
33
O.S.No.4166/1995
35. Ex.P33 is the certified copy of the Sale Deed dated
15.11.1962, Typed copy of Ex.P33 is also produced which is
dated 15.11.1962. The recitals of the said document reads as
under :-
“ಬಾಗೆ ನಂಜೈಯನವರ ಮಕ್ಕ ಳು ಸೋಮ್ಯ ಯನವರಿಗೆ ಇದೇ
ಹೋಬಳಿ ಬಾಲುಪೇಟೆಯಲ್ಲಿ ರುವ ಕಾಫಿ ಪ್ಲಾ ಂಟರ್ ರಸ್ತೆ ಮನೆ
ಮಲ್ಲ ೇಗೌಡರ ಮಗ ಬಿ. ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನು ಬರೆದು ಕೂಟ್ಟ ದಾನ
ಪತ್ರ . ನನಗೆ ಅರವತ್ತು ವರ್ಷ ವಯಸ್ಸು ತುಂಬಿದ ಪ್ರ ಯುಕ್ತ
ನಡೆಸುವ ಶಾಂತಿ ಕಾಯಕದ ಅಂಗವಾಗಿ ಭೂ ದಾನ
ಮಾಡಬೇಕಂತ ಅಪೇಕ್ಷೆ ಇರುವದರಿಂದ ಜಂಗಮರಾದ ನಿಮಗೆ
ಈ ಕೆಳಗೆ ಕಂಡ ಖುಷಿಕಿ ಜಮೀನನ್ನು ನಿಮಗೆ ಧಾನವಾಗಿ
ಕೂಟ್ಟು ಈ ದಿನವೇ ನಿಮ್ಮ ಸುಪರ್ದು ವಹಿಸುರುತ್ತ ೇನೆ .”
36. Ex.P34 is the certified copy of the Sale Deed dated
03.10.1964, Typed copy of Ex.P34 is also produced which is
dated 15.11.1962. The recitals of the said document reads as
under :-
“ಬಿ.ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರ ಮಕ್ಕ ಳು ಒಂದನೇ ಬಿ.ಎಸ್.ದೇವರಾಜು,
ಎರಡನೇ ಬಿ.ಎಸ್. ಮಲ್ಲಿ ಕಾರ್ಜುನ ಇವರುಗಳಿಗೆ ಹಾಲಿ ದಕ್ಷಿ ಣ
ಕನ್ನ ಡ ಜಿಲ್ಲಾ ಮಂಗಳೂರು ತಾಲ್ಲೂ ಕು ಕಸಭಾ ಮಂಗಳೂರು
34
O.S.No.4166/1995ಟೌನನಿನ ರಂಗನಾಡಿಯಲ್ಲಿ ವಾಸವಾಗಿರುವ ಮತ್ತು ಹಿಂದೂ
ಸ್ಕೂ ಲಿನ ಹತ್ತಿ ರವಿರುವ ಮನೆ ನಂಬರ್ 200 ರ ಎರಡುನಾರಲ್ಲಿ
ವಾಸವಾಗಿರುವ ಎಲ್. ಡಿಸೋಜರವರ ಮಗ ಆರ್ ಎಫ್
ಡಿಸೋಜ ಬರೆದು ಕೊಟ್ಟ ಜಮೀನು ಕ್ರ ಯಪತ್ರ ಹಾಲಿ ಕ್ರ ಯ
ಕೊಡುವ ಸ್ವ ತ್ತು ದಾಮೂರು ಪಟೇಲರಿಂದ ನಾನು
ಸ್ವ ವಂತವಾಗಿ ಕೊಂಡಿರುತ್ತೆ . ಇದು ನನ್ನ
ಸೃವರ್ಯಾಜಿತದ್ದಾ ಗಿರುತ್ತ ದೆ. ಅದಾಗಿ ನನ್ನ ದಾಗಿರುತ್ತೆ ಅಂದರೆ
ಹಾಲಿ ಕ್ರ ಯಕ್ಕೆ ಕೆಳಕಂಡ ಪೆಲ್ ಸ್ವ ತ್ತು ನನಗೆ
ದೂರವಾಗಿರುವುದರಿಂದಲೂ ಮತ್ತು ಸ್ವ ತ್ತಿ ನ ಮೇಲೆ ಹಾಸನದ
ಮನಸೀಫ್ ಕೋರ್ಟನಲ್ಲಿ ವ್ಯ ವಹಾರವಿರುವುದನ್ನು
ತೀರಿಸುವುದ್ದ ೇಶದಿಂದಲೂ ಈ ದಿನ ಒಂದು ಸಾವಿರದ
ನಾಲ್ಕು ನೂರು ರುಪಾಯಿಗಳಿಗೆ ಶುದ್ಧ ಕ್ತ ಯಕ್ಕೆ ಕೊಟಿರುತ್ತ ೇನೆ.”
37. Ex.P35 is the mutation register. Ex.P36 is again another
deed dated 15.06.1977, the recitals of the said deed reads as
under :-
“ಕಾಫಿ ಪ್ಲಾ ಂಟರ್ ಶ್ರ ೀ. ಬಿ. ಶಿದ್ದಾ ಣ್ಣ ಯ್ಯಾ ನವರ ಧರ್ಮ ಪತ್ನಿ
ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ , ಶ್ರ ೀ ಬಿ.ಎಸ್. ದೇವರಾಜರವರ
ಧರ್ಮ ಪತ್ನಿ ಶ್ರ ೀಮತಿ ವೇದಾವತಿಯವರು ಮಾಡಿಕೊಂಡ
ವಿಭಾಗ ಪತ್ರ ವೇನಂದರೆ ಈ ಪತ್ರ ದ ‘ಎ’ ಮತ್ತು ‘ಬಿ’
ಷೆಡ್ಯೂ ಲಿನಲ್ಲಿ ನಮೂದಿಸಿರುವ ಸ್ವ ತ್ತು ಗಳು ನಮ್ಮಿ ಬ್ಬ ರ ಜಂಟಿ
35
O.S.No.4166/1995ಹಕ್ಕು ಬಾಧ್ಯ ತೆ ಕಿಮ್ಮ ತ್ತು ಸ್ಥ ವಾಧೀನಾನುಭವದಲ್ಲಿ ಇರುವುದು
ಸರಿಯಷ್ಟೆ . ಈ ಸ್ವ ತ್ತು ಗಳನ್ನು ನಾವುಗಳು ತಾರೀಖು 25-04-68
ರಂದು ಶ್ರ ೀ ಶಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರಿಂದ ಕ್ರ ಯಕ್ಕೆ ಪಡೆದು ಪೂರ್ಣ
ಹಕ್ಕು ಮತ್ತು ಸ್ವಾ ಧೀನ ಹೊಂದಿದವರಾಗಿರುತ್ತ ೇವೆ. ಈ ಎಲ್ಲಾ
ಸ್ವ ತ್ತು ಗಳಲ್ಲೂ ನಮ್ಮ ಗಳಿಗಿಬ್ಬ ರಿಗೂ ತಲಾ ಅರ್ಧ ಹಿಸ್ಸೆ ಹಕ್ಕು
ಇರುತ್ತೆ . ಈಗ ನಾವುಗಳು ಉಭಯತ್ರ ಹಿತ ದೃಷ್ಟಿ ಯಿಂದಲೂ
ನಮ್ಮ ಸ್ವ ಇಚ್ಛೆ ಯಿಂದಲೂ ಈ ಸ್ವ ತ್ರ ಗಳ್ಳ ನ್ನು ಉತ್ತ ಮ
ಮದ್ಯ ಮವಾಗಿ ವಿಭಾಗ ಮಾಡಿಕೊಳ್ಳ ಬೇಕೆಂದು
ತೀರ್ಮಾನಮಾಡಿಕೊಂಡಿರುತ್ತ ೇವೆ.”
38. Ex.P37 is a mutation register. Ex.P38 is the certified copy
of the deed, typed copy of which is furnished. It is dated
15.06.1977. The recitals of the said document reads as under :-
“ಕಾಫಿ ಪ್ಲಾ ಂಟರ್ ಬಿ. ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರ ಮಕ್ಕ ಳು ಒಂದನೇ
ನಲ್ಲ ವತ್ತಾ ರು ವರ್ಷದ ಬಿ.ಎಸ್. ದೇವರಾಜ ಮತ್ತು ಎರಡನೇ
ಸುಮಾರು ಇಪ್ಪ ತ್ತ ಮೂರು ವರ್ಷ ವಯಸ್ಸು ಳ್ಳ ಬಿ.ಎಸ್.
ಮಲ್ಲಿ ಕಾರ್ಜುನ ಇವರುಗಳು ಮಾಡಿಕೊಂಡ ವಿಭಾಗ ಪತ್ರ
ಎನೆಂದರೆ ಓಂದನೇ ದೇವರಾಜ ಆದ ನಾನು ಮತ್ತು ಎರಡನೇ
ಮಲ್ಲಿ ಕಾರ್ಜುನ ಆದ ನಾನು ಸೇರಿ ಈ ಪತ್ರ ದ ಎ ಮತ್ತು ಬಿ.
ಪೆಡ್ಯೂ ಲಿನಲ್ಲಿ ನಮೂದಿಸಿರುವ ಸ್ವ ತ್ತು ಗಳನ್ನು ಇದುವರೆಗು
ಜಂಟಿಯಾಗಿ ಹಕ್ಕು ಸ್ವಾ ಧೀನ ಹೊಂದಿ ಅನುಭವಿಸಿಕೋಂಡು
36
O.S.No.4166/1995ಬಂದಿರುವುದು ಸರಿಯಷ್ಟೆ ನಾವುಗಳು ಎ.ಷೆಡ್ಯೂ ಲಿನಲ್ಲಿ
ಒಂದರಿಂದ ಏಳರವರಿಗಿನ ಸ್ವ ತ್ತು ಗಳನ್ನು ಮತ್ತು ಬಿ.
ಷೆಡ್ಯೂ ಲಿನಲ್ಲಿ ಒಂದನೇ ಐಟಂ ಸ್ವ ತ್ತ ನ್ನು ನಮ್ಮ ಗಳ
ತಂದೆಯವರಿಂದ ಶ್ರ ೀ. ಬಿ. ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರಿಂದ ಕ್ರ ಮವಾಗಿ
ತಾರೀಕು 18-4-1959 ಮತ್ತು 31-3-64 ರಂದು ರಿಜಿಸ್ಟು ಕ್ರ ಯ
ಪತ್ರ ದ ಮಾಲ್ಕಿ ಹಕ್ಕು ಸ್ವಾ ಧೀನವನ್ನು
ಹೊಂದಿದವರಾಗಿರುತ್ತ ೇವೆ.”
39. Ex.P39 is a mutation register. Ex.P40 is the certified copy
of the deed dated 15.06.1977. It is the Sale Deed executed in
favour of the wife of Siddannaiah by name Manoharamma and
his son Mallikarjun. Ex.P41 is the mutation. Ex.P42 is a deed
dated 15.06.1977 which is executed in favour of Manoharamma,
Siddannaiah and Mallikarjun. Ex.P43 is mutation register Ex.P44
is the deed dated 15.06.1977 in between Siddannaiah,
Manoharamma in favour of Vedavathi, Mallikarjun and Devaraj.
Ex.P45 is another mutation register. Ex.P46 is the deed dated
15.06.1977, the typed copy of which is also produced. The
recitals of the said document reads as under :-
“ಬಾಳುಪೇಟೆಯಲ್ಲಿ ರುವ ಬಿ. ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರ ಮಗ ಬಿ.ಎಸ್
ದೇವರಾಜುರವರ ಮಕ್ಕ ಳಾಧ ಬಿ ಡಿ ಬಸವಣ್ಣ ಬಿ ಡಿ ಶಶಿಧರ ಬಿ
37
O.S.No.4166/1995ಡಿ ಪ್ರ ಭುಶಂಖರ್ ಮತ್ತು ಬಿ ಏನ್ ದೇವರಾಜ್ ರವರ ಪತ್ನಿ ಬಿ ಡಿ
ವೇದಾವತಿ ಇವುಗಳಿಗೆ ಇದೆ ಬಾಳ್ಳು ಪೇಟೆಯಲ್ಲಿ ರುವ ರಸ್ತೆ ಮನೆ
ಮಲ್ಲ ೇಗೌಡರ ಮಕ್ಕ ಳು ಬಿ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ಮತ್ತು ಇವರ ಮಗ ಬಿ
ಎಸ್ ಮಲ್ಲಿ ಕಾರ್ಜುನ ಇವರುಗಳು ಬರೆದುಕೊಟ್ಟ ರಿಲೀಸ್
ಯಾನೆ ಹಕ್ಕು ನಿವೃತ್ತಿ ಪತ್ರ .”
40. Ex.P47 is the mutation register. It is in respect of the
Property bearing No.193 and 191 measuring 22 guntas and 5
guntas. Ex.P48 is the deed dated 13.07.1977. Ex.P49 is
another another deed dated 22.06.1977. Ex.P50 is the mutation
register reflecting the entry with regard to gift by Manoharamma
W/o. Siddannaiah in favour of Smt. Hemalatha and B.D.
Basavanna and the said mutation also reflects of another Gift
Deed dated 13.07.1977 executed by Devaraju in favour of
Sugunamani and B.S. Mallikarjun. Ex.P51 is another deed
dated 16.04.1958 excuted by Sri. Raja Jayachamarajendra
Odeyar Bahaddur Maharaj of Mysore. Ex.P52 is the certified
copy of reconveyance of site in Rajamahal Vilas Extension
addressed by B. Basappa, Coffee Planter, in favour of the
Chairman, CITB. Bengaluru. Ex.P53 is another letter addressed
by B. Basappa with regard to the conveyance of land acquired
in Rajmahal Vilas Extension. The recitals of the said document
38
O.S.No.4166/1995
would read as under :-
“Proposed to be conveyed ie., site Nos.435 to 438, 455 to
458 and 470 to 473 said to have been reconveyed.”
41. Ex.P54 is another letter addressed by B. Basappa to the
Chairman, CITB, Bengaluru, with regard to transfer of site
reconveyed in Rajmahal Vilas. Whereby recitals of the said
document would read as under :-
“I have already paid layout charges for 12 sites in
Rajmahal Vilas reconveyed in my favour as the land was
purchased in my name being head of Joint Family, I
request you to kindly transfer the sites in favour of persons
as noted below : B. Shivappa, B. Mallappa, B. Palaksh,
B.Siddanniah, B.S. Devaraj, B.G. Somappa, B.S.
Gurunath.”
42. Ex.P55 is another letter dated 28.07.1964 addressed by
B. Basappa to the Chairman, CITB, Bengaluru, with regard to
transfer of site reconveyed in Rajmahal Vilas. Whereby site
Nos. 471, 472, 473 is conveyed to B.S. Mallikarjun. 435,, 455,
456 conveyed to B.S. Devaraj, they are Defendant No.2 and 1
39
O.S.No.4166/1995
respectively.
43. Ex.P56 is another letter addressed by B.S. Mallikarjun,
since minor represented by Siddannaiah to the Chairman, CITB,
Bengaluru, the recitals of the said document would read as
under :-
“With reference to your endorsment No.435 to 438 and
455 to 458 dated 24.08.1964 addressed to B. Basappa,
Coffee Planter, Bailupet, Hassan District, I wish to say that
I have not received any such endorsement for the transfer
of site Nos.471, 472, and 473 in Rajmahal Vilas, in my
favour. I request you kindly to send the same.”
44. Ex.P57 is another letter addressed by B. Basappa to the
Chairman, CITB, Bengaluru, with regard to transfer of site
reconveyed in Rajmahal Vilas. Ex.P58 is the Sale Deed of
Defendant No.9 which is dated 06.07.1995. Ex.P59 is the
orders of Hon’ble High Court of Karnataka in HRRP No.111/1999
C/w. HRRP No.657/1999 filed by B.S. Bharathi as against S.
Shailendra Babu and Mallikarjun, with regard to the proceedings
initiated under the Karnataka Rent Control Act. Whereby there is
an observation in the said orders of the Hon’ble High Court of
40
O.S.No.4166/1995
Karnataka as under :-
“It is undisputed that the respondents in the original
petition are the sister and brother. The property is situated
in Sadashivanagar, a prime residential locality of
Bangalore. The property was originally belonged to the
father of the respondents. Subsequently, there was a
division between the father of the respondents and their
uncle. Their uncle wrote to the erstwhile C.I.T.B., to allot
three sites including the present petition premises in
favour of the respondent No.2 B.S. Mallikarjuna.
Accordingly, C.I.T.B. allotted these three sites in his name
when he was a minor. It is stated that his father
constructed three separate residential premises upon
these three sites. The petition premises is in occupation of
one sister, viz., the first respondent, who is the present
petitioner. Another residential premises is in the
occupation of another sister of Mallikarjuna, The third one
is let out by him. And with an observation that the
admission made by the present Plaintiff that her B. S.
Mallikarjuna had received a cheque for a sum of Rs. 450/-
every month for the period of 2 years for the purpose of
41
O.S.No.4166/1995Income Tax was not considered as admission. In turn it
was and issue that has to be decided by a competent City
Civil Court.”
45. Ex.P60 is the Sale Deed dated 09.10.1972, it is in respect
of vacant site bearing No.472 situated at Rajmahal Vilas
Extension executed in favour of S. Gurudev S/o. Shivappa by
B.S. Mallikarjun S/o. B. Siddannaiah. Ex.P61 is the certified
copy of Sale Deed executed by B.S. Devaraj in favour of Smt.
A.R. Valliammai, Nachammai and others in respect of item
Nos.1 to 7 at Daithapura village of Hassan along with certain
house properties. Ex.P62 is again another Sale Deed dated
12.03.1980 executed by Smt. B.D.Vedavathi W/o. B.S. Devaraj
in favour of Valliammai and others in respect of some wet land
properties. Ex.P63 is the certified copy of Sale Deed which is
dated 12.03.1980 executed by B.B. Hemalatha in favour of
Valliammai and others in respect of land situated in Navilahalli
village with the name Kamadhenu Estate situated in Sy.No. 33
measuring 11 acres 5 guntas. Ex.P64 is another deed, Ex.P65
is the mutation register. Ex.P66 is another deed of indenture
dated 28.12.1966 executed by Coffee Planter B. Siddannaiah. It
is a deed of settlement (ವ್ಯ ವಸ್ಥಾ ಪತ್ರ ).
42
O.S.No.4166/1995
46. It is also necessary to look to the documents relied by the
Defendants. Ex.D1 is the book on “Rasthemane Mallegowda
and his brother Guruvegowda” authored by Chandrashekar
Dhulekar. Ex.D2 is the certified copy of a partition deed dated
14.06.1957. Ex.D3 is another deed which is a Supplemental
Partition Deed of the year 1958. Ex.D4 is another deed, which is
a Registered Will, executed by Siddannaiah. Ex.D5 is a letter
dated 06.08.1980. Ex.D6 is an Agreement which is recited as
Agreement/ಅನುಮತಿ ಪತ್ರ . Ex.D7 is another deed executed by
B. S. Mallikarjun, as he is a minor represented by his father B.
Siddannaiah. It is a registered deed. Ex.D8 is another registered
deed executed by B. Siddannaiah, Manoharamma and Vedavati.
It is dated 25.04.1968. Ex.D9 is another certified copy of a deed
dated 27.10.1956. Ex.D10 is the charge cancellation letter.
Ex.D11 is the certified copy of the suit in 523/1983 in between B.
Devambamma, Chandrashekar, Sadananda being Plaintiffs and
S.B. Nanjundaiah, B. Bramaramba and B. Ambikamba being the
Defendants. Ex.D11(a) is the typed copy of Ex.P11. Ex.D12 is
the deposition of one T.S. Rangappa in the said suit. Ex.D12(a)
is the typed copy of Ex.D12. Ex.D13 is the letter addressed by
the Corporation bank. Ex.D14 is the challan for payment of
43
O.S.No.4166/1995
advance tax under the Income Tax Act by Devaraj. Ex.D15 to 32
are the receipts of payment of Wealth Tax and other taxes.
Ex.D33 is the Deed of Partnership. Ex.D34 is the Sale Deed.
Ex.D35 is the letter addressed by Deepa Associates to the
Manager, Karnataka Bank. Ex.D36 & 37 are the share
certificates. Ex.D38 and 39 are the registers. Ex.D40 is the
certified copy of the Sale Deed Ex.D40(a) is the typed copy of
Ex.D40.
47. The crucial document that needs an appreciation is
Exhibit D2, the document relied by the Defendants which is
dated 30.06.1956. The recitals of the document reads as
under :-
“ಬಾಳು ಪೇಟೆ ರಸ್ತೆ ಮನೆ ಮಲ್ಲೆ ೕಗೌಡರ ಮಕ್ಕ ಳು 1 ನೇ
ಸಿದ್ದ ಣ್ಣ ಯ್ಯ 2 ನೇ ಇವರ ಮಗ ಬಿ.ಎಸ್. ದೇವರಾಜ ಎರಡನೇ
ಮಗ ಬಿ.ಎಸ್. ಮಲ್ಲಿ ಕಾರ್ಜುನ ಮೈನರ್ ಗಾರ್ಡಿಯನ್ ತಂದೆ
1 ನೇ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ಇವರುಗಳು ಸೇರಿ ಮಾಡಿಕೊಂಡ ವಿಭಾಗ
ಪತ್ರ ಯಾನೆ ರೆಜಿಸ್ಟ ರ್ ಪಾರಿಖತ್ ಏನೆಂದರೆ ನನಗೆ ಬಿ.ಎಸ್.
ದೇವರಾಜ ಮತ್ತು ಬಿ.ಎಸ್. ಮಲ್ಲಿ ಕಾರ್ಜುನ ಎಂಬ ಇಬ್ಬ ರು
ಗಂಡು ಮಕ್ಕ ಳು ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ ಎಂಬ ಧರ್ಮ ಪತ್ನಿ ,
ಭಾರತಿ ಮತ್ತು ಸುಂದರ ಎಂಬ 3 ಜನ ಅವಿವಾಹಿತರಾದ
ಮೈನರ್ ಹೆಣ್ಣು ಮಕ್ಕ ಳು ಇರುತ್ತಾ ರೆ. ಎಲ್ಲ ರೂ ತಹಲ್
44
O.S.No.4166/1995ಅವಿಭಕ್ತ ಕುಟುಂಬದವರಾಗಿ ಸಂತುಷ್ಟ ದಲ್ಲಿ ಯೇ ಇರುತ್ತೆ ೕವೆ.
1 ನೇ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನಾದ ನನಗೆ ವೃದ್ದಾ ಪ್ಯ ವು
ಸನ್ನಿ ಹಿತವಾಗಿರುವುದರಿಂದ ಕಾಲಾನುಗುಣವಾಗಿ ಏಕ
ಕುಟುಂಬದವರಾದ ನಮ್ಮ ಗಳಿಗೆ ಆಸ್ತಿ ಗಳ ವಿಚಾರವಾಗಿ ಮುಂದೆ
ಯಾವ ವಿಧವಾದ ಮನಃ ಕ್ಲೆ ೕಷವೂ ಉಂಟಾಗದಿರಬೇಕೆಂಬ
ಕಾರಣಕ್ಕೆ ವಿಭಾಗ ಮಾಡಿಕೊಳ್ಳ ಲಾಗಿದೆ. ”
48. So, thereby Siddannaiah himself has effected a partition in
respect of the properties that were held jointly in between
himself and his minor children. In the said recitals, he has
emphasized that the properties described in the schedule were
all joint family properties.
49. It is also crucial to note that though the said partition is
effected as on 30.6.1956, the minor children of Siddannaiah
were shown as minors and the guardian of the said minors was
Manoharamma, their mother. Since the present Defendants i.e.
B.S. Devraj and B.S. Manlikarjun, as of then were minors.
50. Hence taking note of the same, the further recitals of this
Exhibit D2 which is a crucial document, it is reflected as under :-
“ಈ ಶೆಡ್ಯೂ ಲಿನಲ್ಲಿ ತಪಸೀಲು ಮೇರೆ ಹಿಸೆ ಮಾಡಿಕೊಂಡಿರುತ್ತೆ ೕವೆ.
45
O.S.No.4166/1995
ಅವಿವಾಹಿತ ಹೆಣ್ಣು ಮಕ್ಕ ಳು (unmarried daughters) 1 ನೇ
ಕುಸುಮ 2 ನೇ ಭಾರತಿ, 3 ನೇ ಸುಂದರಿ ಇವರಿಗೆ ತಲಾ 5000 ರೂ.
ನಗದು ಅಂದರೆ ಕುಟುಂಬದ ಒಟ್ಟು ಆಸ್ತಿ ಯ ಬೆಲೆ 1/17 ಭಾಗ ಈ ಮೊಬಲಗನ್ನು ಆಯಾಯ ಹೆಣ್ಣು ಮಗಳ ಹೆಸರಿನಲ್ಲಿ ಸೇವಿಂಗ್ಸ್ ಬ್ಯಾ ಂಕ್ನಲ್ಲೂ ಡೆಪಾಸಿಟ್ ಮಾಡುವುದರ ಮೂಲಕ ಪಾವತಿಯಾಗತಕ್ಕ ದ್ದು . ಈ ಆಸ್ತಿ ಗೆ ಇವರುಗಳ ತಾಯಿ ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ ನನ್ನು ಗಾರ್ಡಿಯನ್ ಆಗಿ ನೇಮಕ ಮಾಡಿರುತ್ತೆ . ಉಳಿದ ನಾವು 3 ಜನ ಗಂಡಸರು ತಂದೆ ಮತ್ತು ಇಬ್ಬ ರು ಮಕ್ಕ ಳು
ತಲಾ 4/17 ಸಮ ಹಿಸ್ಸೆ ತಲಾ 20 ಸಾವಿರ ರೂ. ಬೆಲೆ ಬಾಳುವ ಸ್ಥಿ ರ
ಆಸ್ತಿ ಗಳನ್ನು ಈ ಕೆಳಕಂಡಂತೆ ವಿಲೆ ಮಾಡಿಕೊಂಡಿರುತ್ತೆ ೕವೆ.”
51. Accordingly Siddannaiah has received about 25 items of
property. Likewise B.S. Devraj and B.S. Mallikarjun have also
acquired the share in the said partition. The Plaintiff though
claims that these properties are joint family properties, has not
challenged the very said deed of 30.06.1956. Further the
Defendants have also placed Exhibit D3 which is a deed of
Supplementary Partition Deed, whereby out of the share that
was fallen to Siddannaiah, Siddannaiah in turn has executed the
Deed of Supplementary, but nowhere this Partition Deed of 1956
is cancelled and subsequently out of the properties that were
fallen to his share, Siddannaiah has also executed a Will vide
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O.S.No.4166/1995
Exhibit D4.
52. Further it is also crucial to note that vide Exhibit D4,
Siddannaiah has also executed a Will which is a registered
deed. In the recitals of the said Will, Siddannaiah has contended
as under :-
” ನನಗೆ ಒಟ್ಟು 2 ಜನ ಗಂಡು ಮಕ್ಕ ಳು. ಈ ಹಿಂದೆಯೇ ಅವರಿಗೆ
ಎಲ್ಲಾ ರೀತಿಯ ಪಾಲು ಕೊಟ್ಟು ಅವರುಗಳು ತಮ್ಮ ಸಂತ್ವ
ವ್ಯ ವಹಾರ ಮಾಡಿಕೊಂಡಿರುತ್ತಾ ರೆ. ಹೆಣ್ಣು ಮಕ್ಕ ಳು ಈಗಾಗಲೇ
ಲಗ್ನ ವಾಗಿ ಅವರವರ ಗಂಡನ ಮನೆಯಲ್ಲಿ ಸುಖವಾಗಿರುತ್ತಾ ರೆ.
ನಾನು ನನ್ನ ಎಲ್ಲಾ ಜವಾಬ್ದಾ ರಿಗಳನ್ನು ನನ್ನ ಶಕ್ತಿ ವಿುೕರಿ
ನಿರ್ವಹಿಸಿರುತ್ತೆ ೕನೆ. ಈ ಹಿಂದೆ ದಿ.27.10.1956 ರಲ್ಲಿ ಆಲೂರು
ಸಬ್ ರೆಜಿಸ್ಟಾ ರ್ ಅವರ ಕಛೆರಿಯಲ್ಲಿ ವ್ಯ ವಸ್ಥಾ ಪತ್ರ ವನ್ನು
ರೆಜಿಸ್ಟ ರ್ ಪತ್ರ ಮುಖೇನ ರದ್ದು ಮಾಡಿರುತ್ತೆ ೕನೆ. ನನ್ನ
ಸ್ವಾ ಧೀನದಲ್ಲಿ ಅನೇಕ ಆಸ್ಥಿ ಗಳು ನನ್ನ ಹೆಂಡತಿ ಮಕ್ಕ ಳು ಮತ್ತು
ನನ್ನ ಸೊಸೆ ವೇದಾವತಿ ಅವರುಗಳಿಗಾಗಿ ಬೇರೆ ಬೇರೆ
ತಾರೀಖುಗಳಲ್ಲಿ ವಿಕ್ರ ಯಿಸಿ ಉಳಿದಿರುವ ಸ್ಥಿ ರ ಆಸ್ತಿ ಗಳು ಇತರೆ
ಚಿರ ಸ್ವ ತ್ತು ಗಳು ನನ್ನ ಮರಣಾನಂತರ ಈ ಕೆಳಕಂಡವರಿಗೆ
ಸೇರತಕ್ಕ ದೇ ವಿನಃ ಬೇರೆ ಯಾರಿಗೂ ಸೇರತಕ್ಕ ದ್ದ ಲ್ಲ .”
53. In the said Will also, it reflects of the properties that are
47
O.S.No.4166/1995
effected by way of alienation to himself, to his wife, to his
children and to his daughter-in-law as well. Therefore, as on the
execution of this Will, he had also executed deeds which created
rights in favour of his wife, children and daughter-in-law.
54. The Defendants have also placed a Partition Deed i.e. the
typed copy of which i.e. Exhibit D11(a) is produced, whereby as
on 16.10.1932 Rastemane Mallegowda, son of Devegowda has
entered into a Deed of Settlement ( ವ್ಯ ವಸ್ಥ ಪತ್ರ ) wherein certain
properties are given to Siddannaiah as 1st party and others.
Further Ex.D12 is a deed executed as on 29.03.1970, the said
recitals of the document goes to show that certain properties
were ancestral properties and certain properties were self
acquired properties.
55. And the documents relied by the Defendant ie., Ex.D1
which is a book that has seen its light in the year 2000. The G-
tree of B. Siddannaiah is seen at page 45. B. Siddannaiah
through Manjamma i.e. the first wife had children by name
Gangamma, Thangyamma, Devraju and Sidhu, who is demised.
Further Devaraj (Son one) through his wife Vedavathi, has got
Basavanna, Shashidhar and Prabhushankar as children.
48
O.S.No.4166/1995
Further at page 48, the G. Tree of B. Siddannaiah through
second wife Smt. Manoharamma is reflected, whereby Kusuma,
Bharati the Plaintiff herein, Sundari and Mallikarjun, who are
reflected as his children and Kokila and Siddesh being the
children of Mallikarjun. At page 53 a photograph of Mallikarjuna
Swami Temple is reflected, which is said to have been put up by
B. Siddannaiah at Ballupete. At page 55 the photograph of a
foundation stone is reflected, which is said to have been put up
by Guruvegowda’s son Gurrappa, Mallegowda’s sons B.
Siddannaiah, Malleshappa, Basappa having put up the said
Dispensary in memory of Rastemane Mallegowda. The entire
book speaks of the flourishing & glorious livelihood and legacy of
Rastemane Mallegowda and his children. So also the B.
Siddannaiah, the father of the Plaintiff herein.
56. The recitals of page 72 calls for a careful appreciation.
“ಹೀಗಾಗಿ ಅಂದಿನ ದಿನ ಬಾಳ್ಳು ವಿನಲ್ಲಿ ಅನುಕೂಲಸ್ಥ
ಕುಟುಂಬದ ವ್ಯ ಕ್ತಿ ಯಾಗಿ ಎದ್ದು ಕಾಣುತ್ತಿ ದ್ದ , ಮಲ್ಲ ೇಗೌಡರಿಗೆ
74 ವರ್ಷಗಳಾದಂತೆ ಈ ಆಸ್ತಿ ಯ ಜವಾಬ್ದಾ ರಿಯನ್ನು ಆದಷ್ಟು
ಹಗುರ ಮಾಡಿಕೊಂಡು ಬಸವ ತತ್ವ ಶರಣ ಸಿದ್ಧಾ ಂತ, ಪೂಜೆ,
ಧಾರ್ಮಿಕ ಚಿಂತನೆಗಳತ್ತ ಅಂತರಂಗ ತುಡಿಯಲಾಯಿಸಿತು.
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O.S.No.4166/1995
ಆದ್ಯಾ ವುದೋ ಭಕ್ತಿ ಎಂಬ ಬಳ್ಳಿ ಜೀವರಸಗೊಳ್ಳ ಲು
ಕರೆದಂತಾಯಿತು. ಕೂಡಲೇ ತಮ್ಮ ಮಕ್ಕ ಳಾದ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ,
ಮಲ್ಲ ೇಶಪ್ಪ , ಬಸಪ್ಪ ತಮ್ಮ ಗುರಪ್ಪ ನವರಿಗೆ 1932 ರಲ್ಲಿ ಹಿಪ್ಪೆ
ಮಾಡಿ ಹಂಚಿಬಿಟ್ಟ ರು. “ಹಂಚಿ ತಿಂದವ ಸುಖಿ”, ಎಂಬ ಭಾವ
ಅವರಲ್ಲಿ ಮೂಡಿತ್ತು .”
57. Therefore, with this concept way back in the year 1932
itself the said late Siddanaiah and his father had entered into a
partition deed whereby Siddanaiah received the property to his
share and out of the property that was fallen to his share the
said Siddanaiah has executed a partition dated 30.06.1956.
“ಈ ಫಲವಾಗಿ 1903 ರಲ್ಲಿ ಹಳೆಬಾಳುವಿನಿಂದ ಹೆದ್ದಾ ರಿಯ
ಎಡಪಕ್ಕ ಕ್ಕೆ ರಸ್ತೆ ಮನೆ ಬಸವೇಗೌಡರ ಜತೆಗೂಡಿ ಪ್ರ ಥಮ
ಹಂತದಲ್ಲಿ ಎರಡು ಮನೆಗಳನ್ನು ‘ಕಟ್ಟಿ ಸಿಕೊಂಡರು. ರಸ್ತೆ
ಅಂಚಿನಲ್ಲಿ ಇವರ ನಿವಾಸಗಳಿರುವುದರಿಂದ ಇವರಿಗೆ ರಸ್ತೆ ಮನೆ
ಮಲ್ಲ ೇಗೌಡರು ಮತ್ತು ರಸ್ತೆ ಮನೆ ಬಸವೇಗೌಡರೆಂಬ ಅಡ್ಡ
ಹೆಸರು ಜನಜನಿತವಾಯಿತು. ಈಗಿನ ಬಾಳ್ಳು ಪೇಟೆಯ ರಸ್ತೆ
ಅಂಚಿನ ಮೊದಲ ಮನೆಗಳು ಇವರದ್ದಾ ದವು. ಮಲ್ಲ ೇಗೌಡರು
ಮತ್ತು ಬಸವೇಗೌಡರು ಅತ್ಯ ಂತ ಅಪ್ತ ರಾಗಿದ್ದ ರು. ಪಟೇಲ್
ಬಸಪ್ಪ ಗೌಡರ ಕೆಲವು ತೋಟಗಳನ್ನು ಮಲ್ಲ ೇಗೌಡರು
ಕೊಂಡುಕೊಂಡರು. ರಾಜವೈಭವದಿಂದ ಮೆರೆದ ಬಾಳು,
50
O.S.No.4166/1995ಬಾಳಲು, ಎಂಬ ಪ್ರಾ ಚೀನ ಪಟ್ಟ ಣ ಬರಬರುತ್ತ
ಜನವಸತಿಯಿಂದ ವಿಚಲಿತವಾಯಿತು. ಹಲವಾರು
ಕುಟುಂಬಗಳು ರಸ್ತೆ ಅಂಚಿಗೆ ಬಂದು ನೆಲೆನಿಂತವು. ತಮ್ಮ
ಪ್ರ ಪಿತಾಮಹರ ಹುಟ್ಟು ಊರಾಗಿದ್ದ , ಜನಸವಾಗಿದ್ದ
ಹಳೇಬಾಳ್ಳು ವನ್ನು ಸ್ಥ ಳಾಂತರಿಸುವಾಗ ಅವಿನಾಭಾವ
ಕಾದುಗರೂ ಓಡುತ್ತಿ ರುವ ಕಾಲಕ್ಕೆ ತಕ್ಕ ಂತೆ ಸ್ಪ ಂದಿಸಲೇ
ಬೇಕಾಗುತ್ತ ದೆ. ವ್ಯ ವಹಾರ ಪಾಪಗಳ ಮಾಧ್ಯ ಮವನ್ನು
ಕಂಡುಕೊಳ್ಳ ಲೇ ಬೇಕಾಗುತ್ತ ದೆ. ಅದಕ್ಕಾ ಗಿ ಗಟ್ಟಿ ಧೈರ್ಯ ಮಾಡಿ
ಒಳಿತಿನ ಆಶಯ ಹೊತ್ತು ರಾಷ್ಟ್ರೀಯ ಹೆದ್ದಾ ರಿಯ ಎಡ
ಅಂಚಿನಲ್ಲಿ ಮನೆಗಳನ್ನು ನಿರ್ಮಿಸಿ ಬದುಕನ್ನು ಮಲ್ಲ ೇಗೌಡರು
ಸಾಗಿಸಲಾರಂಭಿಸಿದರು. ವಯಸ್ಸಾ ದಂತೆ ಮಲ್ಲ ೇಗೌಡರ
ಬುದ್ದಿ ಶಕ್ತಿ ಪಕ್ವ ವಾಯಿತು. ಅನುಭವಗಳೆಲ್ಲಾ
ಅನುಭಾವಗಳಾಗತೊಡಗಿದವು. ಮನಸ್ಸು ಮಾಗಿ ಧರ್ಮದ
ಬೆಳಕಿನಲ್ಲಿ ಶಿವನ “ಸಾಕ್ಷಾ ತ್ಕಾ ರದ ಹುಡುಕಾಟದಲ್ಲಿ
ತೊಡಗಿತು. ಹೊರ ಪ್ರ ಪಂಚವನ ನೋಡಲಾರಂಭಿಸಿದರು.
ಬದುಕಿನ ಬಡವರ ಬವಣೆಗಳನ್ನು ಅರ್ಥಮಾ ಕೊಳ್ಳ ಲಾರಂಭಿಸಿದರು. ನೀರಿಗಾಗಿ ಸಾರ್ವಜನಿಕರು
ಪರಿತಪಿಸುವುದನ್ನು ಕಂಡದ ಎಲ್ಲಿ ಯೋ ಹಳ್ಳ ಹೊಂಡದಲ್ಲಿ ನ
ಅಶುದ್ಧ ನೀರನ್ನು ಕುಡಿದು ಜಡ್ಡು ತಾಪತ್ರ ಯಗಳ
ಗುರಿಯಾಗುವ ಸಾಮಾನ್ಯ ಜನರ
ಸಮಸ್ಯೆ ಗಳನ್ನ ರಿತುಕೊಂಡರು.”
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58. Per contra, the Plaintiff has also relied upon certain crucial
documents which needs a careful appreciation. Further the
Plaintiff has emphasized on the Settlement Deed with regard to
some of the properties of the family were also been included
with the properties of R. Mallegowda and the contention of the
Plaintiff is that, approximately more than 200 acres of land were
settled in favour of the above mentioned 4 persons. These
properties were allotted to Basappa, the last son of
R.Mallegowda the same being managed by him since he was
minor at the time of settlement. Further almost more than 75
acres of land were settled in favour of B. Siddannaiah, the
father of the Plaintiffs and Defendant No.1 to 5.
59. It is also the contention of the Plaintiff that the family of her
father right from the time of great grandfather was rich the
reference of the same is also found in Ex.D1 at page-20. B.
Siddannaiah had no other avocation other than agriculture and
thereby the contention of the Plaintiff is that, A to D properties
were acquired from the 75 acres of land/properties that were
settled in his favour by his father and in this regard the Plaintiff
relies upon the “Rukmabai Vs. Lala Lakshminarayan and others”
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O.S.No.4166/1995
case with regard to presumption of Joint Family & nucleus. And
also another citation reported in 1997 SC 1962 in case of
“Indranarayana Vs. Roop Narayana and another“, wherein their
Lordships have held at Head Note (A) as under :-
(A) Hindu Law – Joint family Separation – Presumption that
members of Hindu family are joint is stronger in case of a
father and his sons. One who pleads that a member has
separated himself from the family has to prove it
satisfactorily.”
60. It is the contention of the Plaintiff that the Sale Deed dated
12.03.1980 reflects in the recitals of the said properties being
joint family property and that the joint family properties were
alienated by Defendant No. 1 and Defendant No. 7 i.e. B. D.
Hemalatha,W/o. B.D. Basavanna and the first son of deceased
Defendant No. 1, vide Exhibit P61 to Exhibit P63 and that the
properties originally belonged to B. Siddannaiah having sold by
B.S. Devraj in favour of Valliammai and 14 others as on
12.03.1980. As on that date ie., as on 12.03.1980, Siddannaiah
was alive. If at all the said documents i.e., Exhibits P61 to 63
were to be challenged, it was to be challenged by Siddannaiah.
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If the contention and the arguments of the Plaintiffs were to be
looked into. On the other hand, Siddannaiah was alive and he
has also executed a Codicil. The fact that he was alive is seen
for the reasons that he has executed a Codicil as on 06.08.1980.
Therefore, the sale deeds dated 12.03.1980 executed by
Defendant No. 1 and Defendant No. 7 were not challenged by
Siddannaiah. If at all the said property belonged to the share of
Siddannaiah as per the contention of the Plaintiff.
61. It is also the case of the Plaintiff that out of the sale
consideration amount, the properties at Infantry Road, ie., for
acquiring Ashraya International Hotel ie., Item No.7 of C-
schedule, the said properties were sold in favour of Valliammai
and others. And that Item No.8 Republic Hospital was also
acquired. Ex.P61 as discussed supra is executed in favour of
Valliammai and others. The recitals of the said Ex.P61 reads as
under :-
“Item Nos. 1 to 5 of the properties mentioned in the
Schedule situated in Daithapura village,
Kenchammanahosakote Hobli, Alur Taluk of Hassan
District were owned and possessed by Sri.B.Siddannaiah,
54
O.S.No.4166/1995the Vendor and his brother B.S.Mallikarjun, who were
members of Joint Hindu Family & were co-parceners, and
the same having been purchased by Sri.B.Siddannaiah,
the above said B.G.Gurappa from the then owners
Hiregowda and Smt. Nanjamma of Mallenahalli, residents
of Daithapura by virtue of Deeds dated 18.08.1938 and
Registered on 7.9.1938.
62. Further, the Sale Deed also recites as under :-
“That a Partition between the said B.Siddannaiah, the
Vendor B.S. Devaraj and B.S.Mallikarjun and other
members of the said family, the above said items 1 to 5
among other properties were allotted to and fell to the
share of said Sri. B. Siddannaiah as per the the Partition
Deed dated the 30th June, 1956.”
63. And further the said document also reads as under :-
“The said Sri. B. Siddannaiah was thus the absolute
owner in possession of the said items on account of ill
health and other valid causes executed a settlement deed
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O.S.No.4166/1995dated 27/10/1956 settling the said properties among other
items in favour of his sons the vendor hereto and Sri.B.S.
Mallikarjun equally, after the lifetime of the said
Sri.B.Siddannaiah the Grantor, who was to be in
possession till his death.”
64. It is also crucial to note that, said B.Siddannaiah after
having recovered from his illness is said to have decided to sell
the same ie., items 1 to 5 in favour of B.S. Devraj and his brother
B.S. Mallikarjun under a Sale Deed Dated the 18.04.1959.
65. It is clear that the arguments of the Plaintiff that the father
ie., B.Siddannaiah has executed a Sale Deed in favour of B.S.
Devraj and his brother B.S. Mallikarjun, ie., who are none other
than the sons B.Siddannaiah. Was it necessary to sell the
Property in favour of his sons? Here again a doubt arises as to
why a Sale Deed was created and what about the consideration
amount that was acquired by selling the Property? And whether
B.S. Devraj and B.S. Mallikarjun as on 1959 were majors or not
and were they capable of purchasing the Property? Did they
have their independent income to purchase the Property? is also
a prudent question that arises in the mind of the Court.
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Conscientiously the answer to the above question would be
Negative.
66. Further the said document ie., Ex.P61 also reflects of item
No.6 which is situated at Tippapura village, which is purchased
by the vendor hereto and his brother B.S. Mallikarjun under a
Sale Deed dated 03.10.1964 from one R.F. D’Souza of
Mangalore and that the said document reflects that B.S.Devaraj
and his brother B.S.Mallikarjuna, who were the Joint owners of
items 1 to 6 of the Schedule hereunder and that they effected a
partition amongst themselves and items 1 to 6 of the Schedule
fell to the share of the Vendor by name B.S. Devraj. And further
the documents recites of the fact that said B.S. Devraj contends
that B.D.Basavanna, B.D.Shashidhara, B.D. Prabhushankar
being the members of a Joint Hindu Family and the Vendors and
his above said sons being coparceners, the Vendor being their
father and Manager of the family, items 1 to 6 of the Schedule
properties were owned & possessed by the said Joint Family
and at a partition between the Vendor and the members of his
family, said items 1 to 6 mentioned in the Schedule among other
properties were allotted to the share of the Vendor as per
Partition Deed dated the 29.031970. Therefore, this fact goes to
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show that it was a Joint Family Property between the family of
B.S. Devaraj and his sons.
67. Further, Ex.P62 is the Sale Deed that is executed by B.D.
Vedavathi W/o. B.S. Devraj ie,. Daughter-in-law of
B.Siddannaiah in favour of Valliammai and others. The said
document also reads of the said Property being the Joint Family
Property and item No.1 to 6 under the said Ex.P62 being
allotted to the share of B.Siddannaiah under a Partition dated
30.06.1956 and that by virtue of Sale Deed dated 25.04.1968
B.Siddannaiah is said to have sold the Property ie., except
Sy.No. 29/2 to his wife Smt. Manoharamma. And further the
said Manoharamma and the present vendor is said to be the
absolute owners of the said Property and by virtue of a partition
deed in the year 1977 Manoharamma and the daughter-in-law
ie., the vendor under Ex.P62 have effected a partition amongst
themselves. Therefore, these deeds of sale is happened within
the family members and therefore the said Property as per the
said recitals of the said document also reflects that it is a Joint
Family Property. It would be therefore relevant to note that after
the severance of status, by virtue of partition dated 30.06.1956,
by virtue of Sale Deed dated 25.04.1968 has sold the Property
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O.S.No.4166/1995
to Manoharamma, his wife. Further the properties as per recital
was joint prior to 1956.
68. Ex.P63 is a Sale Deed executed by B.B. Hemalatha in
favour of Valliammai and others. The recitals of the said
document goes to show that, B.Siddannaiah had sold the said
Property in favour of his wife Smt. Manoharamma and B.D.
Vedavathi under a Sale Deed dated 25.04.1968, which in turn
the said Manoharamma and Vedavathi have got divided the
said Property by virtue of Partition Deed dated 15.06.1977 and
thereby the said vendor ie., Vedavathi has executed the Sale
Deed in favour of Valliammai and others. The recitals of the said
document also goes to show that the mode of acquisition was
through the deeds executed by B.Siddannaiah. And this
B.Siddannaiah is none other than the father of the present
Plaintiff herein and the Sale Deeds are effected within the
members of the Joint Family, that too the sons and wife and
daughters-in-law. Further the recitals of this document would
also go to show that prior to the Partition Deed dated
30.06.1956, there was an existence of Joint Family but after the
Registered deed, the same got severed and Siddannaiah being
independent of his share was enjoying the properties as his
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absolute Property and has exercised his right and ownership in
the said properties and therefore executed a deed in favour of
his wife Manoharamma, who in turn got a partition effected with
her daughter-in-law. Therefore this document including Ex.P61
and P62 as well will be of less assistance to the Plaintiff to
establish the Issue No.1.
69. Further, it is also the contention of the Plaintiff that, out of
the funds under Ex.P61, 62 and 63, the Property in Infantry
Road is said to have been acquired. Therefore, the said Property
is also to be termed as Joint Family Property ie., the Property
situated at Infantry Road and the Republic Hospital are also be
termed as the Joint Family properties acquired out of Joint
Family funds as neither B.S. Devraj nor B.S. Mallikarjun nor
Vedavathi nor Hemavathi nor Manoharamma had any
independent source of income to acquire the said Property,
furthermore, the vendors have sold to the common purchasers
on same day and this is done so to pool the funds for acquiring
the properties at Infantry Road, by the members of the Joint
Family. But, does this argument go to show that there was no
severance of Joint Family status as on 1956 (30.06.1956). As
these contentions will be of negligible in the light of a Registered
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deed of 1956 and further Registered deeds whereby late
Siddannaiah and Manoharamma have executed their rights of
ownership.
70. It is also crucial note certain admissions in the evidence of
DW.1, which is culled out hereunder for brevity :-
“1980 ರಲ್ಲಿ ನನ್ನ ತಂದೆ, ತಾಯಿ ಮತ್ತು ಬಸವಣ್ಣ ಪ್ಪ ನವರ
ಹೆಂಡತಿ ಕೆಲವು ಸ್ವ ತ್ತು ಗಳನ್ನು ಮಾರಾಟ ಮಾಡಿ ರೂ. 30 ಲಕ್ಷ
ಗಳಿಸಿದ್ದ ರು ಎಂದರೆ ನಿಜ. ಅಶ್ರ ಯ ಇಂಟರ್ನ್ಯಾ ಷನಲ್
ಹೋಟೆಲ್ನ್ನು ಪಾಲುದಾರಿಕೆಯಲ್ಲಿ ನಡೆಸಲಾಗುತ್ತಿ ದೆ.
ರಪಬ್ಲಿ ಕ್ ನರ್ಸಿಂಗ್ ಹೋಮ್ ಪ್ರ ೈವೇಟ್ ಕಂಪನಿ ಆಗಿದೆ.
ನಾನು ದೀಪಾ ಅಸೋಸಿಯೆಟ್ಸ್ ಹೆಸರಿನಲ್ಲಿ ಒಂದು
ಪಾಲುದಾರಿಕೆ ಸಂಸ್ಥೆ ಯನ್ನು ನೊಂದಾಯಿಸಿರುತ್ತ ೇನೆ ಎಂದರೆ
ನಿಜ. ನಿ.ಡಿ. 34 ರ ದಾಖಲೆಗೆ ಸಂಬಂಧಿಸಿದ ಸ್ವ ತ್ತ ನ್ನು ಸುಮಾರು
ರೂ.12 ಲಕ್ಷಗಳಿಗೆ ಖರೀದಿಸಿರುತ್ತ ೇನೆ. ಸದರಿ ಸ್ವ ತ್ತ ನ್ನು ನನ್ನ
ತಂದೆಯವರು ದೀಪಾ ಅಸೋಸಿಯೆಟ್ಸ್ ನ ಆಡಳಿತ
ಪಾಲುದಾರರಾಗಿ ಖರೀದಿಸಿದ್ದಾ ರೆ ಎಂದರೆ ನಿಜ. ಸದರಿ
ದಾಖಲೆಯಲ್ಲಿ ಹಣದ ಮೂಲ ಯಾವ ರೀತಿಯಿಂದ ಬಂದಿದೆ
ಎಂದು ನಮೂದಿಸಿಲ್ಲ ಎಂದರೆ ನಿಜ.”
71. Further, ನಾವೆಲ್ಲ ರೂ ಬೇರೆಬೇರೆ ಆಗಿದ್ದ ರ ಬಗ್ಗೆ ಯಾವುದೇ
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O.S.No.4166/1995
ವಿದ್ಯು ಚ್ಷ ಕ್ತಿ ಬಿಲ್ಲಾ ಗಲೀ ಮತ್ತು ಯಾವುದೇ ಬಿಲ್ಲ ನ್ನು ಹಾಜರು
ಪಡಿಸಿರುವುದಿಲ್ಲ . Why should the Defendant produce the said
document, will the said document act as proof for Joint Family.
Probably, they may be a proof of joint residence not Joint Family.
72. The contention of the Plaintiff is that, both the documents
produced by the Plaintiff and the Defendants reflects of the fact
that the said Property is their Joint Family Property acquired by
way of Joint Family funds and the deeds effected in favour of the
family members of Siddannaiah himself goes to show that the
Suit Schedule Properties were Joint Family properties. But in
the light of registered documents, the said contentions may not
survive.
73. The Plaintiff’s counsel in her arguments has highlighted
upon certain recitals in the document ie., Annexure-C.
“ಸರ್ವೆ ನಂ. 29 ನೇ ಪೋಡು ಕುಷ್ಠಿ 1 ಎಕರೆ 36 ಗುಂಟೆ ಆಕಾರ
ಒಂದು ರೂಪಾಯಿ ಆಣೆ ಉಳ್ಳ ದ್ದು ಈ ಸ್ವ ತ್ತು ಗಳು ಸಹ
ಮೇಲ್ಕ ಂಡ ದೈತಾಪುರ ಎಸ್ಟ ೇಟಿನಲ್ಲಿ ಯೆ ಅಡಕವಾಗಿದ್ದು
ಸಾಮೂಹಿಕವಾಗಿ ದೈತಾಪುರ ಎಸ್ಟ ೇಟ್ ಎಂದು
ಕರೆಯಲ್ಪ ಡತಕ್ಕ ದಿರುತ್ತೆ . ಇವುಗಳಲ್ಲ ದೆ ಮೇಲೆ ನಮೂದಿಸಿರುವ
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ತಿಪ್ಪಾ ಪುರದ ರಿ. ಸರ್ವೆ ನಂ. 14 ನೇ ನಂ. ಕುಷ್ಠಿ ಯು ಹೊಸದಾಗಿ
ಕಟ್ಟಿ ರುವ ವಾಸದ ಮನೆ ಲಗಾಯ್ತು ಕೊಟ್ಟಿ ಗೆ ಸಹ ಈ
ಲಾಟಿನಲ್ಲಿ ಯೆ ಸೇರಿರುತ್ತೆ . ಈ ಸ್ವ ತ್ತು ಗಳು ಒಂದನೇ ಸಿದ್ದ ಣ್ಣ
ನವರಿಗೆ ಸೇರತಕ್ಕ ದಿರುತ್ತೆ .”
74. Further, “ಸರ್ವೆ. ನಂ 193 ರ ಪೈಕಿ ಕಾಫಿ ಸುಮಾರು ಎಕರೆ ಐದು
ಗುಂಟೆ ಇಪ್ಪ ತ್ತೆ ರಡು ಆಕಾರ ಏಳು ರೂಪಾಯಿ ಉಳ್ಳ ಚಿಕ್ಕ ೇರಿಗಿಡ ಈ
ಸೊತ್ತಿ ನಲ್ಲಿ ರುವ ರೈಟರ ಮನೆ ಉತ್ತ ರ ದಿಕ್ಕಿ ನಲ್ಲಿ ರುವ ಎರಡು ಕೂಲಿ
ಲೈನುಗಳು ಪೂರ್ವ ದಿಕ್ಕಿ ನಲ್ಲಿ ರುವ ಒಂದು ಕೂಲಿ ಲೈನು ಸಹ ಸೇರಿ
ಚಿಕ್ಕು ಬಂದಿ ಪೂ.ಕ್ಕೆ ಬಿ.ಬಸಪ್ಪ ನವರ ತೋಟ ಪ.ಕ್ಕೆ ಈ ಪಾರ್ಟಿಗೂ
ಮೂರನೇ ಪಾರ್ಟಿಗೂ ನಡುವೆ ಇರುವ ಕಾಲುದಾರಿ ದಕ್ಷಿ ಣಕ್ಕೆ ಇದೇ
ನಂಬರ್ ಪೈಕಿ ಮೂರನೇ ಪಾರ್ಟಿಗೆ ಸೇರಿರುವ ಲೈನ್ ಇರುವ ಪ್ರ ದೇಶ
ಗಾಡಿರಸ್ತೆ ಇವೆಲ್ಲ ವೂ ಸಹ ಮಲ್ಲಿ ಕಾರ್ಜುನ್ರವರಿಗೆ ಸೇರಿರುತ್ತ ದೆ.”
75. The said deed also reflects of the properties that are
effected in between Siddannaiah, B.S. Mallikarjun and
B.S.Devraj. The very act of B. Siddannaiah and his sons having
effected the partition as on 30.06.1956 goes to show the
severance of Joint Family status. Therefore any amount of oral
averment or contrary oral evidence to disprove the contents and
of the fact of a Registered deed will have to be brushed aside as
they may be of less assistance.
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76. When these are the arguments addressed by the Plaintiff
claiming that the above properties are joint family properties, it is
well settled position of law that, way back in the year 1956 a
partition is effected. And it is a registered deed. The Defendants
will have to do nothing but to just plead that there is severance
of status. Likewise the Defendants in the instant case have
pleaded that there is no joint family status by virtue of the
partition that has taken place in the year 1956 ie, as on
30.06.1956. Therefore, by the very said document, which is a
registered document there was a severance of status. This
Plaintiff has not challenged the said deed of partition. Whereby
there was severance of Joint Family status of late Siddannaiah
and his minor children. Whether they were residing separately or
they were residing jointly is a matter of fact. As on the said date
i.e. 30.06.1956 there was severance of joint family status. The
Plaintiff who has approached this Court has placed several
documents to show that the documents reflected that there was
joint family, but the said recitals are only in respect of status prior
to 1956. And even the Defendant has placed the income tax
returns whereby it shows that on behalf of the joint family, the
advanced income tax are being deposited vide Ex.D31. To D33.
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Though by conduct the Defendants have continued to remain in
jointness, but by virtue of a registered deed of partition that took
place in the year 1956 ie., as of 30.06.1956, there was
severance of status.
77. It is also crucial to note that Siddannaiah after having
acquired his share of property by virtue of a deed of partition
effected by Rastemane Mallegowda in his favour, late
Siddannaiah had acquired the said properties way back in the
year 1932 by virtue of the Exhibit D11, ie., as on 16.10.1932
the said Siddannaiah had acquired the property from his father
Rasthemane Mallegowda. As of 1932 the property that fell to
the share of Siddannaiah, Siddannaiah had acquired the said
properties as his separate property and thereafter the very
said Siddannaiah has effected a partition amongst himself and
his minor children in the year 1956 and after 1956 late
Siddannaiah had acquired his share of property which was his
separate property and based upon the said separate property
that was acquired by Late Siddannaiah, he has executed the
alleged Will, the Codicil and Partitioned his share to the other
parties ie., amongst his sons and wife. Thereby the
Defendants or his sons have not challenged the said partition.
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They might have continued to remain jointly as joint residents
(joint tenants) but not as Joint Family members. But by virtue
of this registered document, the Plaintiff has failed to prove
that there was a joint family status. Based upon the said
registered documents i.e. Exhibit D11, Exhibit D2, there was a
severance of joint family status way back in the year 1932 and
subsequently the family of Siddannaiah also got divided and
separated and there was severance of status in the year 1956.
Thereby the Plaintiff has failed to prove Issue No. 1 casted
upon her to show that the Suit Schedule Properties were the
joint family properties as on the date of the suit. By conduct
the Defendants may have continued to be in joint. But there
was a severance of status and as per the well known settled
principles of law, ‘once a partition is always a partition’ and
there was severance of status. Therefore, Issue No.1 stands
answered in Negative.
78. Now moving to the 2nd Issue, after the severance of
status of joint family, late Siddannaiah has taken his specific
share under the Deed of Partition registered on 30.06.1956
and subsequently to the extent of the properties that were
fallen to his share, Siddannaiah has sold the property in favour
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of his sons and his wife and his daughter-in-law as well. They
have also executed a partition and also Siddannaiah has
executed a deed of Will as well as Codicil. Though the Plaintiff
claims that all the transactions are sham transactions and null
and void, only based upon the grounds that all the documents
recites in its recitals that “ಅವಿಭಕ್ತ ಕುಟುಂಬದ ಸ್ವ ತ್ತು ಗಳು”.
Without challenging the said documents, the Plaintiff only
claims only a portion of the document whereby it recites that
the properties are Joint Family properties. Only to that extent
the Plaintiff relies upon the said documents.
79. Apart from the same, the Plaintiff also claims that it is a
sham document. The Plaintiff has to plead either one of the
grounds. The Plaintiff cannot blow both hot and cold. The
Plaintiff who has claimed that it is Joint Family Property, then
she has to admit the entire document. Thereby the grounds
urged by the Plaintiff that the said documents are sham does
not hold good. And further the Plaintiff has not led any
documentary evidence to show that those documents were
just sham or not acted upon. On the other hand, after the
severance of status, all that late Siddannaiah has done is, he
has dealt with his separate properties that were acquired by
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Siddannaiah under the registered deed of Partition. If at all he
has meddled with the property that were fallen to the share of
his sons, who has to challenge it? The only person who has to
challenge the said transactions effected by late Siddannaiah
was his minor children. And that too soon after they attain their
majority. In the case in hand, neither Defendant No. 1 nor
Defendant No. 2 have no issues with regard to the acts done
by their father late Siddannaiah. On the other hand, both
Defendant No. 1 and Defendant No. 2 have acknowledged the
transactions i.e. the Deeds executed by late Siddannaiah. The
Plaintiff who only claims that the documents are sham, has not
challenged any of those Deeds in the very pleadings, but for
claiming the said documents are sham. Thereby, the Plaintiff
has also failed to establish Issue No.2. Further on perusal of
entire documents including Ex.P61, P62 and P63, all that can
be gathered is that, the Property was initially enjoyed as Joint
Family properties but once there was severance, the Property
fell to the share of Siddannaiah who in turn executed deeds in
favour of his sons and wife.
80. Now moving to the third issue, the only pleadings of
Defendants is that, the Suit Schedule Properties are not the
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Joint Family properties. They have also placed Exhibits D1 to
D40 documents, out of which but for the documents i.e. D31,
D32 and D33, where a stray entry of the property being
reflected as joint family ie. “HUF”, the Defendants have placed
all the documents which goes to show as to how Siddannaiah
has acquired the properties by way of a partition in the year
1932 videe Exhibit D11 and subsequently late Siddannaiah
has exercised all rights of ownership in respect of the property
that were fallen to his share under Exhibit D2, the Partition
Deed dated 30.06.1956 and all the acts of late Siddannaiah
was in respect of the properties that were fallen to his share. It
is also not the case of the Plaintiff that the properties were
blended after the said partition deed dated 30.06.1956,
therefore in absence of such a pleadings and Issue No. 3
being the negative issue, by virtue of my findings to Issue No.
1, whereby the Plaintiff, but for placing documents to show that
they are joint family properties and claiming the documents as
sham document, the Plaintiff having not challenged the
documents, the Plaintiff has failed to prove Issue No. 1 and
Issue No. 2. Therefore the Defendant has probabalized Issue
No. 3 by virtue of Exhibit D11 the first document of the year
1932 and subsequently by virtue of Exhibit D2 the registered
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Deed of Partition and as well as the conduct of Siddannaiah
having exercised all rights of ownership in respect of the
separate property fallen to his share by virtue of Exhibits D1 to
D40, have probabalised of the fact that said status of family
got severed long back. As such Issue No. 3 stands answered
in affirmative.
81. Moving to the other case, that is AIR 1959 SC page 31
in the case of Moran Mar Basselios Catholicos Vs. Thukalan
Paulo Avira and others, Wherein their Lordships have held as
under :-
“In a suit of this description if the Plaintiffs were to
succeed they must do so on the strength of their own
title.”
In the case in hand the Defendants have relied upon the
said Verdict for the reasons that under Issue No.3 the
Defendants were called upon to prove that there was no joint
family status. It is a negative covenant, negative issue,
whereby the Defendant need not place any document.
However the Defendant has placed the documents ie., D1 to
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D40 documents, out of which the prominent document is the
Deed of Partition dated 30.06.1956, whereby the severance of
status is effected by way of a registered document.
Learned Counsel for the Plaintiff has relied upon the
following citations :-
I. 1965 SCC Online SC 111:(986) 2 SCR 286: AIR 1966
SC 735 in the case of HAGWATI PRASAD Vs
CHANDRAMAUL, Wherein their Lordships have held as
under:-
But in considering the application of this doctrine
to the facts of the present case, it is necessary to bear in
mind the other principle that considerations of from
cannot over-ride the legitimate considerations of
substance. If a plea is not specifically made and yet it is
covered by an issue by implication, and the parties knew
that the said plea was involved in the trial, then the mere
fact that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party from
relying upon if it is satisfactorily proved by evidence.
The general rule no doubt is that the relief should be
founded on pleadings made by the parties. But where
the substantial matters relating to the title of both parties
to the suit are touched, though indirectly or even
obscurely, in the issues and evidence has been led
71
O.S.No.4166/1995about them, then the argument that a particular matter
was not expressly taken in the pleadings would be
purely formal and technical and cannot succeed in every
case. What the court has to consider in dealing with
such an objection is: did the parties know that the
matter in question was involved I the trial, and did they
lead evidence about it? If it appears that the parties did
not know that the matter was in issue at the trial and one
of them has had no opportunity to lead evidence in
respect of it, that undoubtedly would be a different
matter. To allow one party to rely upon a matter in
respect of which the other party did not lead evidence
and has had no opportunity to lead evidence, would
introduce considerations of prejudice, and in doing
justice to one party, the court cannot do injustice to
another.
This case will of less assistance to the Plaintiff for the
reason that primarily under issue No.1, the Plaintiff had
pleaded the Joint Family status, which was held in Negative.
Therefore, the Plaintiff’s reliance on the said Verdict would be
of less assistance.
II. (1956) 2 Supreme Court Cases 233 in the case of Shree
Meenakshi Mills Limited, Madurai Vs Commissioner of Income
Tax, Madras, Wherein their Lordships have held as under :-
When can be considered as a “question of law”
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“Mixed question of Law and facts” and “questions of
facts”Distinction between -Held,(1) when there is a
“question of fact” to be determined it would usually be
necessary first to decide disputed facts of subsidiary or
evidentiary character and the ultimate conclusion will
depend on an appreciation of those facts,(2) “mixed
question of law and fact” involve first the ascertainment
of facts on the evidence adduced and then a
determination of the rights of the parties on an
application of the appropriate principles of law to the
facts ascertained.
Further held, the proposition that an inference
from facts is one of law will be correct in its application
to mixed questions of law and fact but not to pure
questions of fact.
Now, the assumption underlying this argument is
that the Tribunal had found in its order that the
intermediaries were benamidars for the appellant, but
there is no basis for this in the order. In this connection,
it is necessary to note that the word “benami” is used to
denote two classes of transactions which differ from
each other in their legal character and incidents. In one
sense, it signifies a transaction which is real, as for
example, when A sells properties to B but the sale deed
mentions X as the purchaser. Here the sale itself is
genuine, but the real purchaser is B, X being his
benamidar. This is the class of transactions which is
usually termed as benami. But the word “benami” is also
occasionally used, perhaps not quite accurately, to refer
to a sham transaction, as for example, when A purports
73
O.S.No.4166/1995to sell his property to B without intending that his title
should cease or pass to B. The fundamental difference
between these two classes of transactions is that
whereas in the former there is an operative transfer
resulting in the vesting of title in the transferee, in the
latter there is none such, the transferor continuing to
retain the title notwithstanding b execution of the transfer
deed. It is only in the former class of cases that it would
be necessary, when a dispute arises as to whether the
person named in the deed is the real transferee or B, to
enquire into the question as to who paid the
consideration for the transfer, X or B. But in the latter
class of cases, when the question is whether the
transfer is genuine or sham, the point for decision would
be, not who paid the consideration but whether any
consideration was paid. Therefore, there will be force in
the contention of the appellant that a finding as to who
furnished the capital for the intermediaries was requisite
before they could be held to be benamidars, if the
Tribunal had held them to be benamidars in the former
sense but not in the latter.
That apart, looking at the substance of the finding,
the point that arose for determination before the taxing
authorities was what profit the appellant had made on
certain sales standing in its books in the names of the
intermediaries. If the sales were true, the amounts
shown in the books as price received therefor would be
the basis for working out the profits, and that was the
stand of the appellant; but the authorities held that those
74
O.S.No.4166/1995sales were sham and the entries relating to the payment
of price therefor fictitious. Then, they found that the
goods concerned were sold by the appellant directly to
its own constituents, that the price paid by them was
actually received by it, and that should be the basis for
calculating its profits. Thus, the point which was actually
in issue in the proceedings was a question of benami in
the second sense and not in the first, and to decide that
the Tribunal had only to find whether any price was paid
by the intermediaries for the sales and not who paid the
price for them.
Under the English law, when real or personal
property is purchased the name of a stranger, a resulting
trust will be presumed in favour of The person who is
proved to have paid the purchase money in the
character of the purchaser. It is, however, open to the
transferee to rebut that presumption by showing that the
intention of the person who contributed the purchase
money was that the transferee should himself acquire
the Deneficial interest in the property. There is, however,
an exception to the above rule of presumption made by
the English law when the person who gets the legal title
under the conveyance is either a child or the wife of the
person who contributes the purchase money or his
grandchild, whose father is dead. The rule applicable in
such cases is known as the Doctrine of Advancement
which requires the court to presume that the purchase is
for the benefit of the person in whose favour the legal
title is transferred even though the purchase money may
have been contributed by the father or the husband or
75
O.S.No.4166/1995the grandfather, as the case may be, unless such
presump- tion is rebutted by evidence showing that it
was the intention of the person who paid the purchase
money that the transferee should not become the real
owner of the property in question. The doctrine of
advancement is not in vogue in India. The counterpart of
the English law of resulting trust referred to above is the
Indian law of benami transactions. Two kinds of benami
transactions are generally recognized in India. Where a
person buys a property with his own money but in the
name of another person without any intention to benefit
such other person, the transaction is called benami. In
that case, the transferee holds the property for the
benefit of the person who has contributed the purchase
money, and he is the real owner. The second case
which is loosely termed as a benami transaction is a
case where a person who is the owner of the property
executes a conveyance in favour of another without the
intention of transferring the title to the property
thereunder. In this case, the transferor continues to be
the real owner. The difference between the two kinds of
benami transactions referred to above lies in the fact
that whereas in the former case, there is an operative
transfer from the transferor to the transferee though the
transferee holds the property for the benefit of the
person who has contributed the purchase money, in the
latter case, there is no operative transfer at all and the
title rests with the transferor notwithstanding the
execution of the conveyance. One common feature,
however, in both these cases is that the real title is
76
O.S.No.4166/1995divorced from the ostensible title and they are vested in
different persons. The question whether a transaction is
a benami transaction or not mainly depends upon the
intention of the person who has contributed the
purchase money in the former case and upon the
intention of the person who has executed the
conveyance in the latter case.
The sub-section is not attracted when the case of
a party is that the transaction recorded in the document
was never intended to be acted upon at all between the
parties and that the document is a sham. Such a
question arises when the party asserts that there was a
different transaction altogether and what is recorded in
the document was intended to be of no consequence
whatever. For that purpose oral evidence is admissible
to show that the document executed was never intended
to operate as an agreement but that some other agree-
ment altogether, not recorded in the document, was
entered into between the parties (Tyagaraja Mudaliyar v.
Vedathanni). The trial court was right in permitting the
respondent to lead parol evidence in support of her plea
that the sale deed dated January 7, 1953 was a sham
document and never intended to be acted upon. It is not
disputed that if the parol evidence is admissible, the
finding of the court below in favour of the respondent
must be accepted. The second contention on behalf of
the appellant must also fail.
The Plaintiff’s contention is that, the Sale Deeds, Partition
77
O.S.No.4166/1995Deed are the sham documents, as per her pleadings to Issue
No.2. But all he deeds are genuine. These Sale Deeds or
deeds of partition are genuine. They were standing in the
name of family members. Therefore, the contention of the
Plaintiff that the alleged deeds were benami and sham and not
acted upon cannot be believed in the light of oral as well as
documentary evidence.
III. (2000) 1 SCC 434 in the case of Ishwar Bass Jain
(Dead) through LRs. Vs Sohan Lal (Dead) by Lrs, wherein
their Lordships have held as under :-
“The point here is whether oral evidence is
admissible under Section 92(1) of the Evidence Act to
prove that a document though executed was a sham
document and whether that would amount to varying or
contradicting the terms of the document. The plea of the
defendant in the written statement was that the
mortgage deed though true was a sham document not
intended to be acted upon and that it was executed only
as a collateral security. It was pleaded that the plaintiff
demanded that a mortgage deed be executed by the
defendant as “collateral security in order to guarantee
that the shop will be vacated by the defendant whenever
demanded by the plaintiff and that this was done to
circumvent the rent control law. It was said that the
alleged transaction of mortgage was a sham transaction,
78
O.S.No.4166/1995executed only with the aforesaid object. The
consideration of Rs 1000 “was only in the nature of a
collateral security or ‘pagri’ “. The plaintiff was and is a
rich man and there was no occasion for him to mortgage
his property. It was further pleaded: “The plaintiff thus
demanded Rs 1000 from the defendant by way of
security and asked the defendant to thumbmark some
writing to arm the plaintiff with a right to get the shop
vacated according to his sweet will. The defendant who
was in dire necessity of the shop, had to agree on the
said condition put forward by the plaintiff”.
This Court has held in Gangabai v. Chhabubai
that in spite of Section 92(1) of the Evidence Act, it is
permissible for a party to a deed to contend that the
deed was not intended to be acted upon but was only a
sham document. The bar arises only when the
document is relied upon and its terms are sought to be
varied and contradicted. In the above case, it was
observed by D.A. Desai, J. as follows: (SCC Headnote)
“The bar imposed by Section 92(1) applies only
when a party seeks to rely upon the document
embodying the terms of the transaction and not when
the case of a party is that the transaction recorded in the
document was never intended to be acted upon at all
between the parties and that the document is a sham.
Such a question arises when the party asserts that there
was a different transaction altogether and what is
recorded in the document was intended to be of no
consequence b whatever. For that purpose oral
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O.S.No.4166/1995
evidence is admissible to show that the document
executed was never intended to operate as an
agreement but that some other agreement altogether,
not recorded in the document, was entered into between
the parties.”
The Plaintiff relied upon this Verdict for the reasons that
it is case of the Plaintiff that the Partition Deed of 1956,
Settlement Deed of 1958, Sale Deeds executed by
Siddannaiah, Manoharamma are sham and benami. But,
when will these aspects gain relevancy if Plaintiff succeeds
under issue No.1. In the case in hand the Property by virtue of
Partition Deed dated 30.05.1956 was a separate Property of
late Siddannaiah. Therefore, he has exercised all rights upon
the Property that was fallen to his share. Therefore, it would
be not relevant if the said documents were not acted upon.
Secondly, to counter the Registered deed of partition of 1956,
the Plaintiff has not placed any documentary evidence to show
that the deeds were executed only for the purpose of Income
Tax, or not for giving effect to. On the other hand,
Siddannaiah had not only executed deed of partition of 1956,
but also a Deed of Settlement of the year 1958 and Deeds in
favour of his wife Manoharamma. Therefore, this Verdict will
80
O.S.No.4166/1995
be of less assistance to the Plaintiff.
IV. Indian Law Report 1977 Syed Rasool Vs Mohammad
Moulana
“A reading of the plaint shows that the plaintiffs’
case was that the sale deed executed by Saiduddin was
a nominal one and was not intended to be effective by
the parties to it. It was not their case that the sale deed
was a voidable instrument. In the circumstances, the
courts below were in error in holding that it was
necessary for the plaintiffs to seek the relief of
cancellation of the sale deed. They were further in error
in thinking that no oral evidence could be adduced by
the plaintiffs to show that the document was a nominal
one. When the document in question is a void one, the
question of seeking its cancellation would not arise at
all. It is only when a document is a voidable one, that is
valid until it is declared as void the question of seeking
its cancellation would arise. Section 92 of the Indian
Evidence Act precludes a party from adducing oral
evidence for the purpose of contradicting, varying,
adding to, or subtracting from the terms of a contract or
grant. In order to attract the provision of Section 92 there
should be a contract in existence. When a party pleads
that there was no contract at all or that an instrument
which had been brought into existence earlier was only
a sham one not intended to be acted upon it would be
open to him to establish by oral evidence that there was
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O.S.No.4166/1995
no intention on the part of the parties to bring into
existence a contract or an effective document. The
Courts below while disposing of the case before them,
failed to notice the above distinction. The order passed
by the trial court rejecting the plaint and the judgment
passed by the lower appellate court are, therefore, liable
to be set aside. They are, Accordingly, set aside. The
suit is remitted to the trial court with a direction to
dispose it of afresh after recording the evidence to be
adduced by the parties. The trial court shall if necessary
after hearing the parties recast the issues framed in the
suit.
On the facts found by the two courts below in the
present case, the question so raised by Mr. R.P. Singh
does not call for a decision. It is sufficient for the
purpose of the present case that the transfer was found
to be sham and fictitious. The result of the fact found by
the two courts below is that a transfer was only a make
believe. In fact, no transfer took place and the property
remained where it was. If that was so, it was not
necessary to invoke S. 53 of the T.P. Act at all for
holding that the property was liable to attachment and
sale in execution of the decree in suit No. 131 of 1962
against the second defendant, as notwithstanding the
apparent transfer, the property in fact continued to
belong and remain in possession of the second
defendant.”
No documentary evidence placed by Plaintiff to show
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that all the deeds from 1956 to 1980 that is right from Partition
Deed to Codicil was executed by Sri. Siddannaiah as a
nominal document. Therefore, this citation may be of less
assistance to the Plaintiff.
V. 1983 SCC Online 183 in the case of Rai Sunil Kumar
Mitra and others Vs Thakur Singh and others, wherein their
Lordships have held as under :-
“The word “Farzi” is sometimes read synoymous
with the word “Benami”. The word “Benami” is used to
denote two classes of transactions which differ from
each other in their legal character and It also refers to a
sham transaction when a person purports to sell his
property to another without intending that his title should
cease or pass to the other. “The fundamental difference
between these two classes of transaction is that
whereas in the former there is an operative transfer
resulting in the vesting of title in the transferee, in the
latter there is none such, the transferor continuing to
retain the title notwithstanding the execution of the
transfer deed.”
Having come to the conclusion that in case of
benami transactions (as strictly understood), the
consolidation authorities would be competent to deal
with the same, let us see what is the position in law
regarding sham transaction, which have also been
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loosely termed as benami transactions. Dealing with this
question is felt necessary for the sake of completeness
and to avoid further controversy in the matter and also
because the reference requires decision abut the
competence of authorities/court qua benami
transactions sham transaction being also one of the
kinds of benami. To decide this aspect of the matter, it
would be necessary to know what is the legal effect of a
sham transaction. As pointed out in Meenakshi Mills
case, in such a transaction, there is no operative
transfer and “the transferor continues to retain the title
notwithstanding the execution of the transfer deed.” In
Bhim Singh‘s case also, a similar view was expressed
by stating that in such a case “there is no operative
transfer at all and the title rests with the transferor
notwithstanding the execution of the conveyance”.
In the case in hand, acting under the Partition Deed
dated 30.05.1956, Siddannaiah has further executed Deed of
Settlement, later a Sale Deed in favour of Manoharamma, who
in turn executed Sale Deed and Deed of Partition in between
herself and Vedavathi and wife of B.S. Devaraj, who in turn
executed documents Ex.P61 to 63, yet how would the Plaintiff
plead that it was not acted upon? Further the Plaintiff also
pleads that out of sale consideration, Ex.P61 to P63, the
Property in the name of M/s. Deepa Associates were
84
O.S.No.4166/1995
purchased. Can this Arguments hold good?
Now, if this be the legal effect of a sham
transaction, it is apparent that conceptually it has to be
regarded as a void transaction, as distinguishable from
voidable. We have said so because a void transaction is
one which is “non-existent from its very inception”, as
stated in the opening sentence of paragraph 9 of
Kalawati v. Bisheshwar, AIR 1968 SC 261. In State of
Punjab v. Gurudev Singh, AIR 1991 SC 2291, it was
stated that void transactions only need a declaration of
their voidness; they need not be set aside (see
paragraph 5). So, if in case of a sham transaction, the
title rests with the transferor notwithstanding the
execution of the conveyance, or, to put it differently, if
the transferor continues to retain the title
notwithstanding the execution of the transfer deed, this
would be so only when the transaction in question can
be said to be void, in which case alone it would be non-
existent from its very inception. If such a transaction
would have been voidable, it could not have been
opined that the transferor would continue to retain the
title, because in case of a voidable transaction, the
transferor ceases to have title, but acquires the same if
the transaction is declared to be bad in the eye of law.
But for such a declaration, the title passes, and so, if in
sham transaction title is ipso facto retained without
anything further being done, it has to be held that it is
85
O.S.No.4166/1995
because such a transaction is void.
This conclusion of ours receives support, if mind is
applied to what was stated in the aforesaid two
decisions of the apex Court as to which transactions can
be said to be sham. A reading of paragraph 14 of Bhim
Singh would show that the question of benami
transaction under the English law related to the question
as to who had contributed to purchase money. As to
Indian law, it was stated that in a benami transaction of
the first kind (i.e. benami, pure and simple), a person
buys a property with his own money but in the name of
another without any intention to benefit such other
person, whereas in the second type, a person executes
a conveyance in favour of another “without the intention
of transferring the title to the property”. If these
statements are read to mean that in benami
transactions, or for that matter, sham transactions, the
only question to be looked into is whether consideration
had passed and, if so, who had paid the same; even
then, a sham transaction in which no consideration is
passed has to be regarded as void in view of what has
been stated in S. 25 of the Indian. Contract Act, 1972
unless the transaction be one of the three types of which
mention has been made in that section. We may,
however, add that it may not be understood that
according to us that transaction alone would be sham in
which no consideration had passed, inasmuch as what
has been stated in both the aforesaid decisions relating
to sham transaction is that it is one where a person
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O.S.No.4166/1995
executes a conveyance in favour of another without the
intention of transferring the title to the property
thereunder. In this connection, we may note with profit
that in paragraph 30 of Meenakshi Mills, a sham
transaction was illustrated by saying that such would be
case “when A purports to sell his property to B without
intending that his title should cease or pass to B”. This
was given as an example of sham transaction. We do
not propose to pursue this matter, as in this reference
we are not called upon to decide as to when a sham
transaction would be void, or for that matter voidable. All
that we are required to decide is who has competence to
entertain a matter relating to sham transaction.”
VI. AIR 1964 ALLAHBAD 64 ( V 51 C 24) S.S DHAVAN.J,
wherein their Lordships have held as under :-
“There will always be a presumption that a minor
is joint with his father and this status cannot be disturbed
during his minority except by a decree of the court or the
operation of the law. Therefore the tinding of the lower
court that Jwala Prasad was joint with his three
remaining sons including the defendant is correct.
There is a presumption in Hindu Law that a family
is joint. There can be a division in status among the
members of a joint Hindu family by definement of shares
which is technically called” division in status” or an
acutal division among them by allotment of specific
property to each one of them which is described as ”
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O.S.No.4166/1995
division by metes and bounds”. A member need not
receive any share in the joint estate but may renounce
his interest therein, his renunciation merely extinguishes
his interest in the estate but does not affect the status of
the remaining members vis-a-vis the Family property. A
division in status can be effected by an unambiguous
declaration to become divided from the others and that
intention can be expressed by any process. Though
prima facie a document clearly expressing the intention
to divide brings about a division in status, it is open to a
party to prove that the said document was a sham or a
nominal one not intended to be acted upon but was
conceived and executed for an ulterior purpose. But
there is no presumption that any property, whether
moveable or immoveable, held by a member of a joint
Hindu family, is joint family property. The burden lies
upon the person who asserts that a particular property is
joint family property to establish that fact. But if he
proves that there was sufficient joint family nucleus from
and out of which the said property could have been
acquired, the burden shifts to the members of the family
setting up the claim that it is his personal property to
establish that the said property has been acquired
without any assistance from the joint family property.
Secondly, if there was a partition of the movable
properties either at the time of the execution of the
document or even earlier – a rich family like that of
Ramasahai must have had large extent of movables –
the details of that partition should have found a place in
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the document. The absence of such details is indicative
of the fact that the document was not really intended to
be a formal document effecting a division between the
parties.
VIII. (2007) 4 SCC 163 Civil Appeal No.6198/2000 in the
case of Chinthamani Ammal Vs Nandagopal Gounder and
another, wherein their Lordships have held as under :-
“In law there exists a presumption in regard to the
continuance of a joint family. The party which raises a
plea of Partition is to prove the same. Even separate
possession of portion of the property by the co-sharers
itself would not lead to a presumption of partition.
Several other factors are required to be considered
therefore.
The authorities are unanimous on the following
propositions. Generally speaking, the normal state of
every Hindu family is joint. Presumably, every such
family is joint in food, worship and estate.
The presumption of union is the greatest in the
case of father and sons(See: Indiranarayan Vs Roop
Narayan, AIR 1971 SC 1962). The presumption is
stronger in the case of brothers than in the case of
cousins and the further one goes from the founder of the
family the presumption becomes weaker and
weaker(See: Yellappa Ramappa Naik Vs Tippanna AIR
1929 PC 8).
In support of his contentions, he has relied upon
89
O.S.No.4166/1995certain observations made in the XVI Edition of
Commentary on Hindu Law and Usage on the basis of
decisions of various courts including Hon’ble Apex
Court, at page No.746 and 748. The relevant portion of
which is extracted. ” Onus on coparcener to prove
nucleus- The burden of proving that any particular
property is joint family property, is in the first instance
upon the persons who claims it as coparcenary property.
Where the possession of a nucleus of joint family
property is either admitted or proved, an acquisition
made by a member of family is presumed to be joint
family property, subject to the limitation that the joint
family property must be such as with its aid the property
in question could have been acquired. Until and unless
adequate nucleus is shown the onus is not on the
acquirer to prove that the property standing in his name
was purchased from joint family funds. And it is only
after the possession of an adequate nucleus is shown,
the onus shifts on to the persons whom claims the
property as self-acquisition, affirmatively to make out
that the property was acquired without any aid from the
family estate”.
It cannot be disputed that it is well settled that
when the Plaintiffs come to the court contending that the
suit schedule properties are joint family properties, then
it is for them to aver and prove the same by giving
description as to how they were acquired either by
inheritance or by purchase and the nucleus for purchase
of the properties and so far as this appeal is concerned,
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O.S.No.4166/1995
the said burden can be discharged by proving the
nucleus that was available for purchasing the properties
though in the name of an elder member of the family.
Then the onus would shift to the person in whose name
the property was made, to show that it was self acquired
property, purchased out of his own income with no
support of the income from the joint family.
In the instance case, the Defendants have not
contended of self acquisition. Per contra, they have relied
upon Ex.D2 and D11 and other deeds to show the severance
of Joint Family status way back in the year 1956 itself.
Therefore, this Verdict differs in facts to the case in hand.
IX. 2016(4) KCCR 3457(DB) KARNATAKA HIGH
COURT( KALABURAGI BENCH) RFA NO.6001 of 2012
connected with RFA No.6011,6010,6012/2012, in the case of
Gangadhar and another Vs Somashekhar and others, wherein
their Lordships have held as under :-
“The Privy Council in Appalaswami Vs.
Suryanarayanamurti, AIR 1947 PC 189, held that the
initial burden which lay on the plaintiff of establishing
that the properties of which a division was claimed were
joint family properties had not been discharged. The law
was thus stated in that case: “The Hindu law upon this
aspect of the case is well settled.. Proof of the existence
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O.S.No.4166/1995
of a joint family does not lead to the presumption that
the 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”.
X. In Achutan Nair Vs. Chinammu Amma, AIR 1966 SC
411, it is held thus:
“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 raises
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.When the severance of Joint Family status is
established by way of Registered document of possession,
92
O.S.No.4166/1995these aspects loses its significance.
XI. 2017(5) KCCR 514 KARNATAKA HIGH COURT IN
Regular Appeal Number 3125/2011 connected with Regular
First Appeal No.3130/2011 decided on 15.02.2017, in the
case of Bhimappa and Others Vs Smt. Krishnavva and Others,
wherein their Lordships have held as under :-
“At this juncture, it is beneficial to refer to the
Judgment of this court in the case of Revamma(supra),
wherein it is observed thus: ” Indeed there is always a
presumption that the Joint Family continues to be Joint.
The normal state of every Hindu Family is joint.
Presumably, every Hindu family is joint in food, worship
and estate. In the absence of proof of division of a Joint
Hindu Family the presumption is until the contrary is
proved, the family continues to be joint but however, it is
also to be noticed that there is no presumption that a
family, because it is joint, Possesses joint property or
any property. When in a suit for partition, the one who
claims that any particular item of the properly is joint
family property, and would assert that the property is
joint family property, the burden would rest on him to
prove that it is a Joint Family. To render the property
joint, the plaintiff must prove that the Family was
possessed of some property with the income from
which, the property could have been acquired or from
which the presumption could he drawn that all the
93
O.S.No.4166/1995property possessed by the family is Joint Family
property. Where it is established or admitted 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 presumption arises that it was joint
property and the burden shifts to the party alleging self
acquisition to establish affirmative that the property was
acquired without the aid of the joint family. However, no
such presumption would arise if the nucleus is such that
with its help the property claimed to be joint could not
have been acquired. In order to give rise to the
presumption the nucleus must be such that with its help
the property claimed to be joint could have been
acquired. Whether the evidence adduced by a party is
sufficient to shift the burden, which initially rested on him
to establish that there was adequate nucleus out of
which the acquisitions could have been made is one of
fact depending on the nature and extent of the nucleus.
An important element for consideration is the income,
which the nucleus yielded. A family house in the
occupation of the members and yielding no income
could not be a nucleus out of which acquisitions could
be made, even though it might be of considerable value.
On the other hand, a running business in which the
capital invested is comparatively small might
conceivably produce substantial income, which may
There are no abstract question of law but question of
fact to be determined on the evidence in the case. The
wide proposition that once the ancestral nucleus is
94
O.S.No.4166/1995proved or admitted, the onus on the member to prove
that fee properly acquired was his self- acquisition
cannot be accepted as correct. The existence of some
nucleus is not the sole criterion to impress the
subsequent acquisitions with family character. What is
required to be shown is that the family had as a result of
the nucleus sufficient surplus income from which the
subsequent acquisitions could be made”.
The presumption of Joint Family seizes on the
production of 1956 Registered deed. Therefore, by virtue of
Ex.D2, the deed of partition, Defendants have rebutted this
presumption effectively.
XII. AIR 2005 NOC 434( JHARKHAND) in the case of
Kalindri Devi and others Vs Saro Devi and Others, wherein
their Lordships have held as under :-
“Hindu Law-Suit for Partition- Plaintiffs made
prayer for decree of partition allotting 1/3rd share in their
favour in respect of properties in schedule-defendants
denied unity of title and possession and raised specific
plea that their father had partitioned properties amongst
three sons in year 1970- There was no satisfactory oral
evidence regarding partition of land, utensils and
money-Documents on record showed joint occupation of
properties at least till 1983- Strong presumption of
jointness between father and sons, not rebutted by
defendants-Other properties referred to in schedule
95
O.S.No.4166/1995were acquired by individual savings and not from
common fund-These properties were not joint family
properties- plaintiff cannot claim partition of these
properties-However, ancestral and acquired properties
are required properties are required to be Partitioned.
Hindu Succession Act.
XIII. INDIAN LAW REPORTS 2007 KARNATAKA SERIES
ILR 2007 KAR 2894 in the case of K.S Venkatesh Vs N.G
Lakshminarayana and Others, wherein their Lordships have
held as under :-
“It is relying on the later passages in the written
statement, it was contended that, the defendant admits
that the suit schedule property is a joint family property,
second defendant as the manager of the joint family and
the compromise entered into by him binds the plaintiff. It
is true those averments are there. But they are not the
only averments in the written statement. As set out
above the 1st defendant has categorically asserted that
the allegations that the sale deed is supported by
valuable consideration and that the consideration flows
out of the joint family funds are not true and correct so
also the allegation that the sale came into existence for
family benefit. Therefore, it is clear that the defendant
has categorically denied the allegation of the plaintiff
that the suit schedule property was purchased out of the
joint family funds. After denying the said allegation, in
96
O.S.No.4166/1995the alternative he has pleaded when admittedly the
second defendant is the manager of the family his
actions bind the family.
Section 17 of the Evidence Act defines what an
admission is. It deals with admission which are both oral
or written. In so far as admissions in writing are
concerned the law on the point is well settled. If an
admission is in writing and if an opposite party wants to
make use of that statement as an admission then the
whole statement containing the admission must be
taken together to ascertain what the party has conceded
against himself. Unless the whole is received the true
meaning of the part which is evidence against him
cannot be ascertained. An admission unless it is
separable has to be taken as a whole or not at all. If a
statement is not capable of dissection because that
particular part is inextricably connected with the other
part then it must be read as a whole. A plaintiff cannot
be allowed to dissect a written statement. He cannot be
allowed to avail only those parts of the written statement
which are favourable to him and discard the other parts
of the written statement which are not favourable to him.
Such dissection of the written statement is not
permissible in law. In other words a statement in writing
cannot be taken out of context or read in part; so as to
bind the maker of the statement when the intention of
the maker of such statement is to the contrary, as could
be gathered from reading the entire statement. Equally it
is not open to the Court to dissect a statement and pick
97
O.S.No.4166/1995up a part which is incriminating and reject a part which is
exculpatory It is to be remembered that an admission
contained in a pleading is a piece of substantive
evidence, which can be acted upon even without putting
it to the maker of such statement. A distinction must also
be drawn between the case where an admission by one
party has merely the effect of relieving the other party
from giving proof of a particular fact, and the case where
one party, failing to adduce independent evidence in his
favour attempts to rely on the statement of the other
party as an admission. In the latter case, as the party
relies on the admission, he must take the whole of it
together, in the former case, the one party cannot be
said to use the admission of the other as evidence at
all.”
The Plaintiff relies upon this Verdict in the light of the
documents relied by the Defendant reflects of the word “Joint
Family”. The so called Joint Family found in the Sale Deed at
Ex.P61 to 63 are the status prior to 1956. Therefore, these
aspects cannot be inferred with regard to the status of family
to be Joint Family as on the date of suit. The Suit Schedule
Properties were not at all Joint Family properties.
XIV. AIR 2007 GAUHATI 20 W.P( C) No.8466/2004, D/-30-
10-2006 in the case of Uttam Chand Kothari Vs Gauri Shankar
Jalan and Others, wherein their Lordships have held as
98
O.S.No.4166/1995
under :-
“From a careful reading of Order VIII, Rules 3, 4
and 5, it clearly emerges that when an allegation of a
fact, made in the plaint, is not denied, in a written
statement, specifically or by necessary implication or is
not stated to have not been admitted, such a pleading
will constitute an implied admission. In short, evasive
denial or non-specific denial constitutes an implied
admission in a judicial proceeding of civil nature. This
does not, however, mean, I must hasten to add, that an
implied admission must necessarily occur in a judicial
proceeding, for it is possible to make an implied
admission, otherwise than in a judicial proceeding, in
terms of the provisions of the Evidence Act. Whether
there is an implied admission or not is, usually, a
question of fact or may, in a given case, be a mixed
question of fact and law. An express admission is one
which is specifically made, either in a judicial proceeding
or otherwise, in accordance with the provisions of the
Evidence Act. However, in order to determine if an
admission has been made in a written statement, the
written statement has to be read as a whole.”
XVI. (2010) 11 SCC 108 Civil Appeal No.5561 of 2008 ,
decided on July 7, 2010, in the case of Pradip Buragohajin Vs
Pranati Phukan, wherein their Lordships have held as under :-
“What is important is that copies of the alleged
complaints relating to the incident of bribery were said to
99
O.S.No.4166/1995be available with the election agent of the appellant but
the same were not annexed to the petition or produced
at the trial. The explanation offered for this omission on
the part of the appellant and his election agent is that
the election petition had been filed hurriedly. The High
Court has, in our opinion, rightly rejected that
explanation as totally unacceptable. Even assuming that
the election petition had been filed hurriedly on account
of constraints of period of limitation prescribed for the
same, nothing prevented the appellant from placing the
said complaints on record or having the same
summoned from the authorities concerned to whom they
were addressed.
We may in this regard refer to Illustration (g) to
Section 114 of the Evidence Act, 1872 which permits the
Court to draw an adverse presumption against the party
in default to the effect that evidence which could be but
is not produced would, if produced, have been
unfavourable to the person who withholds it. The rule is
contained in the well-known maxim: omnia
praesumuntur contra spoliatorem. If a man wrongfully
withholds evidence, every presumption to his
disadvantage consistent with the facts admitted or
proved will be adopted.
XVII. (2021) 2 SCC 718 Civil Appeal No.1725/2010, in the
case of Iqbal Basith and Others Vs N. Subbalakshmi and
Others, wherein their Lordships have held as under :-
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O.S.No.4166/1995
“In Iswar Bhai C.Patel have.Harihar Behera this
court observed as follows:
Having not entered into the witness box and having not
presented himself for cross-examination, an adverse
presumption has to be drawn against him on the basis of
the principles contained in Illustration(g) of Section 114
of the Evidence Act, 1872.”
XVIII. 2007 SCC Online Kar 53 in the case of Puttanna Shetty
Vs Padma Shetty, wherein their Lordships have held as
under :-
“The sum and substance of the findings of the
learned Judge is on the basis of the evidence of P.W. 1.
As mentioned earlier, P.W. 1 has chosen to answer the
question with regard to her husband being a member of
un-divided family or separated. The answer is “we are
separated”. This evidence has to be understood in the
context of the entire evidence and this evidence cannot
be read in isolation as has been done by the learned
Judge. The pleadings and the subsequent evidence
would go to show that the answer “we are separated”
would not result in showing a state of severance of
status and partition as held by the learned Judge. In
fact, the evidence of D.W. 2 is shaky even according to
the learned Judge. Even the evidence of D.W. 1 is not to
our satisfaction. The so-called memo by V.A. was not
placed before the Court. Taking into consideration, the
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O.S.No.4166/1995
entire material on record, we are not prepared to accept
the findings of the learned Judge of severance only on
the basis of a single sentence in cross-examination of
the plaintiff. Therefore, in our view the findings on issue
No. 4 require our interference and we do so by setting
aside the findings on issue No. 4.
At this stage, we must also notice the case laws
submitted by the parties. Smt. Parameshwari Bai v.
Muthojirao Scindia 1, is a Judgment of the Division
Bench of this Court. The Division Bench after noticing
Chikkam Koteswara Rao v. Chikkam Subbarao2, has
chosen to hold as under in paras 11 and 18: “The
presumption of law is a strong legal presumption and is
not likely to be repelled by mere balance of probabilities.
The evidence repelling that presumption must be strong,
distinct and satisfactory. However, intendment is made
in favour of marriage de facto and the presumption
drawn is based upon cohabitation and repute. The
weight of the presumption gets strengthened when it is
proved that the party whose marriage is in question
distinctly intending to marry and went through a form of
marriage with that intention and also subsequently lived
together as husband and wife and were estimated and
reputed as such by those who knew them. Even when
there is no positive evidence of any marriage having
taken place, the presumption is not only with regard to
factum of marriage, but also with regard to the parties
and the requisite ceremony to constitute a valid
marriage.
102
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We have already observed above that the
presumption arising on the facts of the case is a very
strong presumption and that unless the respondent
adduces clear, cogent and reliable evidence, the
presumption is not rebutted. The point therefore, that
arises for our consideration is: whether suggestions
made, the stray sentence elicited in the course of cross-
examination of the lady and the questions put on
interrogation cannot be sufficient to rebut the
presumption arising from the facts of the case discussed
above”.
In Gopal Krishnaji Ketkar v. Mohammed Haji
Latif3, the Supreme Court would notice the
consideration of evidence. In fact, a party in possession
of best evidence has not chosen to place best evidence
by way of examination of grahasta or by way of filing
memo. In that situation, the Court ruled against that
party who has not chosen to place the best evidence.
These two Judgments support the plaintiff. Even
otherwise, an admission particularly in civil matter
dealing with properties has to be clear and it has to be
read in the light of the pleadings and the other evidence
available on record. One stray sentence cannot be
picked up for holding against the plaintiff in property
matter as has been done in the case on hand.
The Defendants are not relying an oral evidence to
prove the non execution. On the other hand a Registered deed
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of partition. Therefore, the citation will be of less assistance to
Plaintiff.
82. The Defendants have relied upon the following citations.
The Hon’ble Apex Court in P. Anjanappa (D) by LRs v. A.P.
Nanjundappa & others reported in 2005 Live Law (SC) 1074,
held as under :-
“Under Hindu Law, the severance of joint status can be
brought about by an unequivocal declaration reduced to
writing or otherwise, and a writing evidencing such
disruption is admissible to prove the fact of disruption,
the arrangement of the character of subsequent
possession.”
In the instant case in hand, there has been a Registered
Partition Deed of 1956 vide Ex.D2, yet the Plaintiff contends
that the family is joint. Therefore, any evidence of oral
assertion contrary to the documentary evidence cannot be
held in favour of Plaintiff or in favour of the contention of the
Plaintiff claiming the Suit Schedule Property to be Hindu
104
O.S.No.4166/1995
Undivided Family. When mere unequivocal declaration is
suffice of severance of Joint Family status, Defendants have
relied upon 1932 and 1956 deeds. Therefore, the Issue No.1
and 2 are answered in Negative and Issue No.3 is answered in
the Affirmative.
83. Issue No.4, 5, 6 & 7 : The Defendants under Issue No.4 to
7 are casted with the burden to prove that they are the absolute
owners of their respective properties out of Schedule-A to D in
respect of which the Sale Deeds have been executed in their
favor and Siddannaiah died leaving behind the Will dated
06.08.1981 bequeathing all his properties and during the lifetime
of Siddannaiah there was a partition in the year 1956 and
thereafter each one of the sharers started enjoying their
respective properties allotted to their shares and further under
Supplementary Partition Deed of the year 1958, Plaintiff has
been given her share and as such all the documents have been
acted upon. In this regard the documents relied by the
Defendants themselves goes to show that they were acquired by
the Defendants herein by virtue the Deeds that were executed
by their father Siddannaiah ie., by way of Partition.
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84. The suit schedule-A Property consists of Sy.No.20 to
Sy.No. 24, Sy.No.27/1 to 27/3. Sy.No.29/1, 29/1, Sy.No. 30, 33,
45, 6, Sy.No. 3, 37, 38, 139/1, 139/2, 153/4, 214, 25, 186, Sy.No.
13 to 15, Sy.No. 47, 152, all properties situated at Hassan
District. Schedule-B properties are also properties bearing
Sy.No. 193/1 193/4, 30, 11, 48 and 49, situated again at
Sakaleshpura village, Hassan District. C-schedule properties
are the house properties situated at RMV Extension and Infantry
Road, including Ashraya International, situated at Infantry Road,
Republic Hospital, situated at LFD Gardens, and old ancestral
house situated at Ballupet along with bank building and new
House situated at Ballupet Coffee Estate and D-schedule
properties are movable properties. The contention of
Defendants is that, these properties ie., A to D-schedule
properties are not the ancestral or the Joint Family properties.
And per contra they claim that they are not the Joint Family
properties and that the Defendants are the absolute owners of
the respective properties out of Schedule-A to D in respect of
which Sale Deeds have been executed in their favour.
85. The burden is upon the Defendants to prove that during
the lifetime of B.Siddannaiah there was a family partition in the
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year 1956 and thereafter each one of the sharers started
enjoying their respective properties allotted to their share
independently. It is crucial to note that, as on the date of 1956
Plaintiff also claims that there was a partition and the Plaintiff
has also placed the said partition deeds before the Court. The
contention of the Plaintiff is that, the said partitions are sham. In
this regard the Defendants have relied upon the very said
documents that are relied by the Plaintiff as well. And the crucial
document that needs a careful appreciation is, the Partition
Deed of the year 1956 ie., Ex.D2, it is dated 30.06.1956. The
recitals of the said document is carefully culled out hereunder :-
“ಬಾಳು ಪೇಟೆ ರಸ್ತೆ ಮನೆ ಮಲ್ಲೆ ೕಗೌಡರ ಮಕ್ಕ ಳು 1 ನೇ
ಸಿದ್ದ ಣ್ಣ ಯ್ಯ 2 ನೇ ಇವರ ಮಗ ಬಿ.ಎಸ್. ದೇವರಾಜ ಎರಡನೇ
ಮಗ ಬಿ.ಎಸ್. ಮಲ್ಲಿ ಕಾರ್ಜುನ ಮೈನರ್ ಗಾರ್ಡಿಯನ್ ತಂದೆ
1 ನೇ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ಇವರುಗಳು ಸೇರಿ ಮಾಡಿಕೊಂಡ ವಿಭಾಗ
ಪತ್ರ ಯಾನೆ ರೆಜಿಸ್ಟ ರ್ ಪಾರಿಖತ್ ಏನೆಂದರೆ ನನಗೆ ಬಿ.ಎಸ್.
ದೇವರಾಜ ಮತ್ತು ಬಿ.ಎಸ್. ಮಲ್ಲಿ ಕಾರ್ಜುನ ಎಂಬ ಇಬ್ಬ ರು
ಗಂಡು ಮಕ್ಕ ಳು ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ ಎಂಬ ಧರ್ಮ ಪತ್ನಿ ,
ಭಾರತಿ ಮತ್ತು ಸುಂದರ ಎಂಬ 3 ಜನ ಅವಿವಾಹಿತರಾದ
ಮೈನರ್ ಹೆಣ್ಣು ಮಕ್ಕ ಳು ಇರುತ್ತಾ ರೆ. ಎಲ್ಲ ರೂ ತಹಲ್
ಅವಿಭಕ್ತ ಕುಟುಂಬದವರಾಗಿ ಸಂತುಷ್ಟ ದಲ್ಲಿ ಯೇ ಇರುತ್ತೆ ೕವೆ.
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1 ನೇ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನಾದ ನನಗೆ ವೃದ್ದಾ ಪ್ಯ ವು
ಸನ್ನಿ ಹಿತವಾಗಿರುವುದರಿಂದ ಕಾಲಾನುಗುಣವಾಗಿ ಏಕ
ಕುಟುಂಬದವರಾದ ನಮ್ಮ ಗಳಿಗೆ ಆಸ್ತಿ ಗಳ ವಿಚಾರವಾಗಿ ಮುಂದೆ
ಯಾವ ವಿಧವಾದ ಮನಃ ಕ್ಲೆ ೕಷವೂ ಉಂಟಾಗದಿರಬೇಕೆಂಬ
ಕಾರಣಕ್ಕೆ ವಿಭಾಗ ಮಾಡಿಕೊಳ್ಳ ಲಾಗಿದೆ. ”
86. Therefore, as of 30.06.1956 B.S. Devaraj and B.S.
Mallikarjun were minors. Their age is not reflected in the deed,
but they were minors. The recitals of the said document also
reflects “ಮೈನರುಗಳ ಪೂರೋಭಿರ್ವೃದ್ದಿ ದೃಷ್ಟಿ ಯಿಂದ ಪ್ರ ಸಕ್ತ
ವಿಭಾಗ ಪತ್ರ ದಲ್ಲಿ ಕೆಳಗೆ ಶೆಡ್ಯೂ ಲಿನಲ್ಲಿ ವಿವರಿಸಿರುವ ಅವಿಭಕ್ತ
ಕುಟುಂಬದ ಆಸ್ಥಿ ಗಳ ವಿಭಾಗ ಮಾಡಿಕೊಂಡಿರುತ್ತೆ ೕವೆ.” Under the
said Property certain properties are effected and further under
the said Property certain amount is given to an extent of 1/17th
share to the minor unmarried daughters ie., Kusuma, Bharathi
and Sundaru. The said amount is being given to Manoharamma
on behalf of minor daughters. It is based upon the said Partition
Deed all the properties have been effected, by way of division.
The burden is upon these Defendants to prove that the said
partition was effected and acted upon.
87. Further, the Will reflects of Settlement Deed dated
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27.10.1956, which is also said to have been cancelled by
Siddannaiah as on 29.12.1966, which is reflected in the Will,
which is marked as Ex.D4. Under the Codicil / letter dated
06.08.1980 Siddannaiah has also effected division in respect of
certain amounts that were due in favour of Mallikarjuna,
Manoharamma, his wife and his daughter-in-law Suguna.
88. The Defendants have also relied upon Ex.D6 which is a
Deed of Agreement / Consent Deed, which is recited as
Agreement ಯಾನಿ ಅನುಮತಿ ಪತ್ರ . It is effected in between
Siddannaiah and his sons B.S. Devraj and B.S. Mallikarjun
being minor, represented by himself ie., Siddannaiah for sharing
of water from the Well that is situated in the open space. There
was a partition effected in the family, Siddannaiah has
maintained complete transparency, whereby by virtue of Ex.D7
also Siddannaiah has entered into an Agreement in respect of
the properties representing the minor children as well with
regard to sharing of the cart-road. This fact goes to show that
Siddannaiah with an conscious intention of executing a Deed
and also to secure the interest of the minor sons and the
property and to protect the property and to keep the property
intact amongst his family members i.e. his children has executed
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Exhibit D2 the Partition Deed, likewise the above document ie.,
Exhibit D6. The division is to see that the properties are shared
so that the disputes and future complications relating to the
same would be avoided. Further, stage by stage the said
Siddannaiah has dealt with the properties that were fallen to his
share.
89. In the Cross-examination DW.1 has admitted certain
crucial aspects.
“ನಿಶಾನೆ ಡಿ-2 ರಲ್ಲಿ ತೋರಿಸಿದಂತ ಭಾಗಂಶಕ್ಕೂ ಮತ್ತು ನಿಶಾನೆ
ಡಿ-38(ಬಿ) ಎರಡನೇ ಪ್ರ ತಿವಾದಿಗೆ ಸಂಬಂಧ ಪಟ್ಟ ಂತೆ ಮತ್ತು
ನಿಶಾನ ಡಿ-38(ಇ) ಒಂದನೇ ಪ್ರ ತಿವಾದಿಗೆ ಸಂಬಂಧ ಪಟ್ಟ ಂತೆ
ತೋರಿಸಿದ ಭಾಗಶಂಕ್ಕೂ ಯಾವುದೇ ರೀತಿ ಸಂಬಂಧ ಇಲ್ಲ
ಎಂದು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾ ರೆ. ನಿಶಾನೆ ಡಿ-38(ಎಫ್) ದಲ್ಲಿ
ತೋರಿಸಿದಂತಹ ಖರ್ಚಿನ ಬಾಬ್ತು ಐಟಂ ನಂಬರ್ 121 ರಿಂದ
126 ಖರ್ಚಿನ ಬಗ್ಗೆ ಭಾಗವನ್ನು ಹಂಚಿದ್ದು ಇದಕ್ಕೂ ಮತ್ತು
ನಿಶಾನೆ ಡಿ-2 ಕ್ಕೂ ಯಾವುದೇ ಸಂಬಂಧ ಇಲ್ಲ ಎಂದು ಸಾಕ್ಷಿ
ಹೇಳುತ್ತಾ ರೆ.” Per contra, the deed that is Ex.D2 reflects the
reply to this.
“ವಾದಿ 5 ಮತ್ತು 6 ನೇ ಪ್ರ ತಿವಾದಿಯರ ಹೆಸರಿನಲ್ಲಿ
110
O.S.No.4166/1995ಪ್ರ ತ್ಯ ೇಕವಾಗಿ ಬರೆದಿರುತ್ತ ದೆ ಆದರೆ ಕಾಲಕ್ಕೆ ಅವರ ಪರ
ಅಪ್ರಾ ಪ್ತ ವಯಸ್ಕ ರ ಪರವಾಗಿ ಯಾರು ಸಂರಕ್ಷಣದಾರರಾಗಿ
ಸದರಿ ಲೆಕ್ಕ ವನ್ನು ವಹಿಸಿಕೊಂಡಿರುತ್ತಾ ರೆ ಅನ್ನು ವುದನ್ನು
ನಮೂದಿಸಿರುವುದಿಲ್ಲ .”
90. Further it is also crucial to note that, Siddannaiah has also
effected Sale Deeds in favour of his sons, which is reflected in
recitals Ex.P61, P62 and P63 in favour of his sons and
daughters-in-law and his wife Manoharamma. It is also crucial
to note, why the properties were sold in favour of his children
and in favour of his wife and daughters-in-law. If at all the
amounts that was there for purchase of the Property by their
sons, they should have purchased the Property separately, other
than the Suit Schedule Properties itself. Why those Properties
was sold in favour of his children, wife and daughters-in-law.
This is the crucial aspect. Therefore, the intention of
Siddannaiah was not to alienate the properties but to keep the
said properties intact. That is within the family. Further, there
was no legal necessity for alienating the properties to 3 rd parties.
Therefore, Siddannaiah has sold the properties to his sons
alone.
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91. It is crucial to note that, after the severance of status, the
property in the hands of Siddannaiah was his absolute and
separate property. Therefore, he was at liberty to deal with the
property as he wished either by executing nominal Sale Deeds
or to keep the properties intact. Whether he received sale
consideration or not, it is the prerogative of the said vendor. And
further it is also crucial to note that, Plaintiff has not challenged
those Deeds specifically pleading as to how and why the said
documents are sham. But for an evasive pleading that it is
sham.
92. Further, DW.1 who stood the test of Cross-examination is
unable to answer to the said fact as to what was the legal
necessity for alienating the properties in favour of his sons or his
wife of in favour of his daughters-in-law. Therefore, it was the
intention of the seller to sell the same not for legal necessity but
for keeping the said Property intact within the family, but not
Joint Family.
93. So far as the Property that is situated at RMV Extension is
concerned, it is crucial to note the oral evidence of D.W.1.
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“ಆರ್.ಎಂ.ವಿ. ಎಕ್ಸ್ಟೆ ಂಷನ್ಸ್ವ ತ್ತ ನ್ನು ಬಿ.ಬಸಪ್ಪ ಎನ್ನು ವವರು
ಖರೀದಿ ಮಾಡಿರುತ್ತಾ ರೆ. ಸದರಿ ಬಿ.ಬಸಪ್ಪ ಇವರು ನಮ್ಮ ಚಿಕ್ಕ
ತಾತ ಸಿದ್ದ ಣ್ಣ ನ ತಮ್ಮ ಇರುತ್ತಾ ರೆ. ಸದರಿ ಸ್ವ ತ್ತ ನ್ನು ಎಷ್ಟು
ರೂಗಳಿಗೆ ಖರೀದಿ ಮಾಡಿರುತ್ತಾ ರೆ ಎಂದು ಗೊತ್ತಿ ಲ್ಲ .
ಬಿ.ಬಸಪ್ಪ ನಿಗೆ 1 ಮತ್ತು 2 ನೇ ಪ್ರ ತಿವಾದಿಯರು ನಿ.ಪಿ.39 ಸಿ
ಮತ್ತು ಹೆಚ್.ನ ಪ್ರ ಕಾರ ಹಣ ಕೊಟ್ಟ ಬಗ್ಗೆ ನಿ.ಪಿ.ಗ 51 ರಲ್ಲಿ
ನಮೂದು ಇರುವುದಿಲ್ಲ ಅಂದರೆ ಸರಿ, ನಿ.ಪಿ.52 ಮತ್ತು 53 ರ
ಪ್ರ ಕಾರ ಬಿ.ಬಸಪ್ಪ ನವರೇ ಆಗಿನ ಛೇರ್ಮನ್ ಸಿ.ಐ.ಟಿ.ಬಿ ಯವರ
ಜೊತೆಗೆ ವ್ಯ ವಹರಿಸುತ್ತಿ ದ್ದ ರು ಅಂದರೆ ಸರಿ. ಬಿ.ಬಸಪ್ಪ ನ
ಸೂಚನೆಯ ಮೇರೆಗೆ ಸೈಟುಗಳು ಹಂಚಿಕೆಯಾಗಿರುತ್ತ ವೆ ಅಂದರೆ
ಸರಿ. ನಿ.ಪಿ.54 ರಲ್ಲಿ ಬರೆದಂತಹ ಒಕ್ಕ ಣಿಗೆ ಸರಿ ಇರುತ್ತ ದೆ. ಆದರೆ
ಸಾಕ್ಷಿ ನಿ.ಪಿ.54 ರಲ್ಲಿ ಬಿ.ಬಸಪ್ಪ ನವರು ಸೈಟ್ ಹಂಚಿದ
ವ್ಯ ಕ್ತಿ ಗಳು ನಮ್ಮ ಕುಟುಂಬಕ್ಕೆ ಸೇರಿದ ವ್ಯ ಕ್ತಿ ಗಳು ಅಲ್ಲ ಅಂತ
ಹೇಳುತ್ತಾ ರೆ. ಬಿ. ಶಿವಪ್ಪ , ಬಿ.ಮಲ್ಲ ಪ್ಪ , ಬಿ.ಪಾಲಾಕ್ಷ ಇವರು
ಬಿ.ಬಸಪ್ಪ ನವರ ಮಕ್ಕ ಳು ಇರುತ್ತಾ ರೆ. ಸೊಮಪ್ಪ ಮತ್ತು
ಗುರುನಾಥ ಇವರು ನಮಗೆ ದೂರದ ಸಂಬಂಧಿ ಇರುತ್ತಾ ರೆ.”
But the documents are corroborately placed.
94. In further Cross-examination,
“ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರೇ ಸೈಟುಗಳ ಸ್ವಾ ದೀನ ಪತ್ರ ವನ್ನು ಅಪ್ರಾ ಪ್ತ
ವಯಸ್ಕ ರ ಪರವಾಗಿ ತೆಗೆದು ಕೊಂಡಿರುತ್ತಾ ರೆ ಅಂದರೆ ಸರಿ.”
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95. Per contra, the cause title address to the plaint itself goes
to show that both the Plaintiff and the Defendants were residing
in separate addresses. Further the severance of Joint Family
status way back in 1932 and 1956 and separate residence,
hence what else is need to hold that A to D properties were held
in their individual names and they were enjoying the properties
as their separate properties. Accordingly, Issue No.4 is
answered in Affirmative.
96. Further Issue No.5 is casted upon the Defendants to
prove that B.Siddannaiah died leaving behind the Will dated
06.08.1990 bequeathing all his properties. The Defendants
have relied upon Ex.D1 to D39 documents. Ex.D4 is the Will that
is said to have executed by B.Siddannaiah. It is dated
30.01.1980. Ex.D5 is a Codicil. It is only with regard to the
amounts that is to be put into use after his demise and certain
directions are given to certain persons to deal with the said
amounts. Apart from the same, Defendants have not place any
materials to show of any immovable Property being conveyed
under the said Will. And further, the Defendants have also
examined DW.2 in supportive of the said Will. He is said to have
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witnessed the said document and he is also said to have been
received an instruction from B.Siddannaiah to get a draft.
Further in the Cross-examination he has stated as under :-
“ವಿಲ್ನಲ್ಲಿ ಬರೆದಂತದ ಪ್ರ ಮುಖ ವಿಷಯಗಳು ಏನು ಇವೆ
ಅನ್ನು ವುದು ನನಗೆ ಮರೆತಿರುತ್ತ ದೆ. ನನಗೆ ಗುರಪ್ಪ , ಬಸಪ್ಪ
ಮತ್ತು ಚಂದ್ರ ಶೇಖರ್ ಇವರುಗಳ ಬಗ್ಗೆ ಗೊತ್ತು . ಊರಲ್ಲಿ
ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರನ್ನು ಮತ್ತು ಬಸಪ್ಪ ನನ್ನು ಯಾವ
ನಾಮದಿಂದ ಕರೆಯುತ್ತಿ ದ್ದ ರು ಅನ್ನು ವುದು ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ .
ನಾನು ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರ ಹೇಳಿಕೆಯ ಪ್ರ ಕಾರ ಇಂತಹವರಿಗೆ
ಇಂತಿಷ್ಟು ಹಣ ಕೊಡಬೇಕು ಅನ್ನು ವುದರ ಬಗ್ಗೆ ಕೇವಲ
ಮೌಕಿಕವಾಗಿ ಕೊಟ್ಟ ಮಾಹಿತಿ ಇತ್ತು ಆದರೆ ಯಾವುದೇ
ದಾಖಲೆಗಳು ಇರಲಿಲ್ಲ ಅಂದರೆ ಸರಿ. ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು
ಮೌಕಿಕವಾಗಿ ಕೊಟ್ಟ ಮಾಹಿತಿಯನ್ನು ನಾನು ಯಾವುದೇ
ಚೀಟಿಯಲ್ಲಿ ಬರೆದುಕೊಂಡಿರಲಿಲ್ಲ ನಾನು ತಯಾರು
ಮಾರಡಿದಂತಹ ಡ್ರಾ ಪ್ಟ್ ಕಾಪಿಯನ್ನು ಹರಿದು ಹಾಕಿರುತ್ತಾ ರೆ.
ನನ್ನ ಸಾಕ್ಷಿ ಪ್ರ ಮಾಣ ಪತ್ರ ದಲ್ಲಿ ಡ್ರಾ ಫ್ಟ್ ಕಾಪಿಯನ್ನು ಹರಿದ
ಬಗ್ಗೆ ಹೇಳಿರುವುದಿಲ್ಲ .”
97. DW.2 is examined on behalf of the Defendants, who is
one of the attesting witnesses to the Ex.D4 the Will, wherein he
has stated as under :-
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“ನಾನು ನನ್ನ ಜೀವನದಲ್ಲಿ ನಿ.ಡಿ.4 ಮತ್ತು 5 ನ್ನು ಮಾತ್ರ
ಬರೆದಿರುತ್ತ ೇನೆ. ನಾನು ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರ ಮನೆತನದಲ್ಲಿ
ಸುಮಾರು 25-30 ವರ್ಷ ನನ್ನ ತಿಳುವಳಿಕೆ ಮಟ್ಟಿ ಗೆ
ಆಗಿರಬಹುದಾದರೂ ಅವುಗಳಿಗೆ ನಾನು ಯಾವುದೇ ಸಹಿ
ಮಾಡಿರುವುದಿಲ್ಲ . ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು ಗುರಪ್ಪ , ಬಸಪ್ಪ ಮತ್ತು
ಚಂದ್ರ ಶೇಖರ್ ಇವರನ್ನು ಎಕ್ಸಿ ಕ್ಯೂ ಟರ್ ಅಂತ
ನೇಮಿಸಿಕೊಳ್ಳ ಬೇಕೆಂಬ ವಿಚಾರ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ ಮತ್ತು
ಅದನ್ನು ಅವರು ನನಗೆ ಹೇಳಿರುವುದಿಲ್ಲ .”
98. The contention of the Plaintiff is that, the very contents of
the said Will is not aware by the said witness. The witness has
deposed of having prepared the Draft, but he is not aware with
regard to Gurappa, Basappa and Chandrashekar being
appointed as executors in respect of certain amounts and for
devoting certain amounts to the temple. It is not necessary that
the witness has to know the details and contents of the Will,
mere proof of execution of the Will is suffice with the signature
having affixed by the testator to prove the Will.
99. Witness also goes to an extent of stating that :
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“ನಿ.ಡಿ.5 ನ್ನು ನೊಂದಣಿ ಮಾಡಿಸಿರುವುದಿಲ್ಲ . ಆದರೆ
ನಿ.ಡಿ.5 ನ್ನು ನೊಂದಣಿ ಮಾಡಿಸಿದ್ದಾ ರೋ ಇಲ್ಲ ವೋ
ಅನ್ನು ವುದು ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ ಮತ್ತು ನನ್ನ ನ್ನು ಕರೆದು ಕೊಂಡು
ಹೋಗಿರುವುದಿಲ್ಲ .”
“ನಿ.ಡಿ.4 ರಲ್ಲಿ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರ ಮತ್ತು ಸಾಕ್ಷಿ ದಾರರ
ಸಹಿಗಳನ್ನು ಕೊನೆ ಪುಟದಲ್ಲಿ ಮಾಡಿರುತ್ತಾ ರೆ. ಸದರಿ
ಸಹಿಗಳನ್ನು ನಿ.ಡಿ.4 ರ ಕೊನೆಯ ಪುಟದಲ್ಲಿ
ಬಿ.ಎಂ.ಮಲ್ಲೆ ಗೌಡ, ಬಿ.ಎಸ್.ದರ್ಮಪ್ಪ ಮತ್ತು ಸಿದ್ದ ಣ್ಣ ಮತ್ತು
ನಾನು ಸಹಿ ಮಾಡಿರುತ್ತ ೇವೆ. ನಿ.ಡಿ.4 ರಲ್ಲಿ ಬೇರೆ ಯಾವುದೇ
ಪುಟಗಳಲ್ಲಿ ಸಹಿಗಳನ್ನು ಮಾಡಿರುವುದಿಲ್ಲ .”
Further the Defendants have relied upon the citation
reported in AIR 1964 SCC 529 in the case of P.B
Gajendragadkar, K.Subba Rao, K.N Wanchoo, N.Rajagopala
Ayyangar and J.R Mudholkar,JJ, wherein their Lordships have
held as under :-
“The principles which govern the proving of a Will
are well settled; (see H. Venkatachala Iyengar v. B. N.
Thimmajamma, 1959 Supp (1) SCR 426: (AIR. 1959 SC
443) and Rani Purnima Devi v. Khagendra Narayan Dev,
(1962) 3 SCR 195: (AIR 1962 SC 567). The mode of
proving a Will does not ordinarily differ from that of
117
O.S.No.4166/1995proving any other document except as to the special
requirement of attestation prescribed in the case of a will
by S. 63 of the Indian Succession Act. The onus of
proving the will is on the propounder and in the absence
of suspicious circumstances surrounding the execution
of the will, proof of testamentary capacity and the
signature of the testator as required by law is sufficient
to discharge the onus. Where however there are
suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the
court before the court accepts the will as genuine.
Where the caveator alleges undue influence, fraud and
coercion, the onus is on him to prove the same. Even
where there are no such pleas but the circumstances
give rise to doubts, it is for the propounder to satisfy the
conscience of the court.”
The Defendant has cogently led the evidence of D.W.2.
Therefore, attestation is proved.
100. DW.2 is examined on behalf of the Defendants, who is
one of the attesting witnesses to the Ex.D4 the Will. In this
regard the provision of Section 6B of the Evidence Act r/w.
Section 63 of Indian Succession Act, is duly complied whereby
the Defendants have got examined one of the attesting
witnesses and on the other hand the Plaintiff has not raised any
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suspicious circumstances surrounding around the Will. On the
other hand, the Defendants in due requirement of the statutory
provisions, have examined one of the attesting witness to the
said Ex.D4 the Will. Thereby the Defendants have discharged
their burden in establishing the fact of executing the Will.
Though the Plaintiff is aware of the said Will, Plaintiff has not
challenged the said Will also has not placed any suspicious
circumstances surrounding under the Will that is said to have
been existing as on the date of the said Will ie., it is not the case
of the Plaintiff that, some suspicious circumstances surrounding
under the Will and thereby the burden is upon the Defendant to
dispel the same. On the other hand, the only requirement under
the issue is to prove the existence of the Will. In order to
discharge the same, the Defendant has placed Exhibit D4 as
well as D5 and also examined DW.2 in order to substantiate the
said claim. In absence of any dispute or contention of the
Plaintiff in relation to the said Will, the Will stands proved. So
also the Issue stands proved in favor of the Defendant. Whereby
defendants have probabalized the execution of a Will by
Siddannaiah. Hence, Issue No.5 is answered in the Affirmative
in favour of the Defendants. Further it is crucial to note that, but
for pleading that the Suit Schedule Properties are the Joint
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Family properties, the Plaintiff has not pleaded that Siddannaiah
had no right to execute the Will or any deeds in favour of his
sons or wife. Therefore, Issue No.5 stands answered in the
Affirmative.
101. Issue No.6 and 7 are taken together for common
consideration since it is the burden casted upon the Defendant
to prove that during the lifetime of Siddannaiah there was a
family partition effected in the year 1956 and thereafter each
one of the sharers started enjoying their respective properties
allotted to their share. This fact is admitted by the Plaintiff.
Though the Plaintiff contend that it was a nominal one, the
Plaintiff categorically admits the said partition. It is also seen
as per the said documentary evidence placed on record by the
Defendants that there was a division of property way back in
the year 1956. That is when the severance of status of the
family of Siddannaiah along with his children have effected.
This being a Registered document of deed, any amount of oral
evidence led contrary to the said documents by the Plaintiff
holds no water. The Plaintiff also admits the right of
Siddannaiah in executing the Will and deeds in favour of his
sons and wife.
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102. Under Issue No.4 to 6 the burden is upon the Defendants
to prove that the properties described in schedule A to D to the
plaint are not Joint Family properties and further to prove that
they are absolute owners of the respective properties out of
schedule A to D in respect of which the Sale Deeds have been
executed in their favour and further to prove that Sri
Siddannaiah died leaving behind the Will dated 6/8/1980
bequeathing all his properties and further to prove that during
the lifetime of Siddannaiah there was a family partition in the
year 1956, and thereafter each one of the sharers started
enjoying their respective properties allotted to their shares and
further to prove that under the Supplementary Partition Deed of
the year 1958, Plaintiff was given her share and since then she
has been in possession and enjoyment of the properties allotted
to her share, as such, the documents has been acted upon. In
this regard, no doubt the Plaintiff also pleads of the said family
partition effected in the year 1956 and the documents are also
placed on record. But what is disputed by the Plaintiff is that,
the said documents were not acted upon. In this regard, burden
is heavy upon the Defendants to prove the issue Nos.3 to 7
casted upon them.
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103. The Defendants have placed Ex.D1 to 39 documents in
order to substantiate the claim. Ex.D1 is as discussed is a book
written by one Chandrashekar Dhulekar. It is crucial to note the
Cross-examination of DW.1 as under :-
“It is true that in Ex.D1 there is a reference in in page-38
as to my ancestors having refused to return to Bellary as
per the request of Tahsildar of Hospet on the ground that
they are well placed in Ballupet. My ancestors have got
earned income and Property out of their hard work.”
Further, with regard to Plaintiff being minor at the time of
partition,
“It may be true that they were minors at the time of
partition deed executed in our family from the time of my
great grand father/ the partition deed marked at Ex.D11
was executed between my great grand father namely
Rastemane Mallegowda and his four sons. It is true that
this partition deed was made between Rastemane
Mallegowda and Gurappa, S/o. Guravegowda. and there
is mention as to properties to be given to the sons of
Rastemane Mallegowda and Gurappa.”
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“It is false to suggest that Basappa and Siddannaiah were
living together till their death. I don’t know as to when they
got separated. After the settlement deed dated 16.10.1932
they got separated. It is true that in the said settlement
deed there is a mention that Rastemane Mallegowda shall
look after the property of Basappa during his life time and
that after his death, his second wife Basamma should look
after the said properties.”
104. It would also be relevant to note that, A-schedule
properties are the properties bearing Survey No. 20, 21, 22, 23,
24, 27/1, 27/2, 27/3, 29/1, 29/2, Survey No. 30, 33, 45, 46/3,
137, 138, 139/1, 139/2, 153/4, 214, 215, 186, Survey No. 13, 14,
15, 47 and 162, totally about 28 items. Schedule-B properties
are properties bearing Survey No. 193/1, 19/4, Survey No. 30,
Survey No.11, 48, 49 situated at Sakaleshpura. The Item No. 1
are situated at Aluru, Sakaleshpura. Hassan District. C-
schedule Properties are the house properties bearing number
473, 471, 472, 455, 456, 435 and Ashraya International,
Republic hospital and totally about 8 properties situated at
Bengaluru and item N.9 and 10 are old houses & new house
situated at Ballupet Coffee Estate. And of course D-schedule
properties are movable properties and family jewelries. These
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properties are claimed by the Defendants that are not to be the
joint properties and also A to D schedule properties are the
absolute properties of the Defendants. And that a Will is also
being executed by Siddannaiah in respect of the said properties
dated 06.08.1980. The Defendants would also contend that
there was a family partition in the year 1956 and thereafter each
sharers have started enjoying their respective properties. In
this regard the crucial document that would necessarily need an
appreciation is the Will. The entire case of the Plaintiff and the
Defendants surrounds under the document ie., the Deed which
is dated 06.08.1980. As on that date, the recitals reflects as
under :-
“1 ನೇ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ಆದ ನನಗೆ 2 ಮತ್ತು 3 ನೆಯವರಾದ
ಬಿ.ಎಸ್. ದೇವರಾಜ ಮತ್ತು ಬಿ.ಎಸ್. ಮಲ್ಲಿ ಕಾರ್ಜುನ ಎಂಬ
ಇಬ್ಬ ರು ಗಂಡು ಮಕ್ಕ ಳು. ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ ಎಂಬ
ಧರ್ಮ ಪತ್ನಿ , ಭಾರತಿ, ಕುಸುಮ ಮತ್ತು ಸುಂದರಿ ಎಂಬ 3 ಜನ
ಅವಿವಾಹಿತರಾದ ಮೈನರ್ ಹೆಣ್ಣು ಮಕ್ಕ ಳು ಇರುತ್ತಾ ರೆ.
ಎಲ್ಲ ರೂ ತಹಲ್ ಅವಿಭಕ್ತ ಕುಟುಂಬದವರಾಗಿ
ಸಂತುಷ್ಟ ದಲ್ಲಿ ಯೇ ಇರುತ್ತೆ ೕವೆ. ”
105. The said recitals also reflects that,
“ಪ್ರ ಸಕ್ತ ವಿಭಾಗ ಪತ್ರ ದಲ್ಲಿ ಕೆಳಗೆ ಶೆಡ್ಯೂ ಲ್ ನಲ್ಲಿ
124
O.S.No.4166/1995ವಿವಿರಿಸಿರುವ ಮೇರೆ ಅವಿಭಕ್ತ ಕುಟುಂಬದ ಆಸ್ಥಿ ಗಳನ್ನು
ವಿಭಾಗ ಮಾಡಿಕೊಂಡಿರುತ್ತೆ ೕವೆ. ”
106. The Plaintiff relies upon the above recitals in the
document, and claims that the Suit Schedule Properties were all
Joint Family properties. But, as per the well settled principles of
law, “Once a partition is always a partition.” The said recitals is
only with regard to the status of the family prior to entering into
the deed. The document in entirety has to be read. The above
document is Will executed by Siddannaiah.
107. The said recitals also reflects that,
“ಒಟ್ಟು ಆಸ್ತಿ ಯ ಬೆಲೆಯ 17/1 ಭಾಗ ಈ ಮೊಬಲಗನ್ನು ಆಯಾ
ಹೆಣ್ಣು ಮಕ್ಕ ಳ ಹೆಸರಿನಲ್ಲಿ ಸೇವಿಂಗ್ಬ್ಯಾ ಂಕ್ನಲ್ಲಿ ಡೆಪಾಸಿಟ್
ಮಾಡುವುದರ ಮೂಲಕ ಪಾವತಿ ಆಗತಕ್ಕ ದ್ದು . ಈ ಆಸ್ತಿ ಗೆ
ಇವರುಗಳ ತಾಯಿ ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ ರವನ್ನು
ಗಾರ್ಡಿಯನ್ ಆಗಿ ನೇಮಕ ಮಾಡಿರುತ್ತ ದೆ. ರೂ. 10 ಸಾವಿರ
ಮೊಬಲಗು ಈ ಕೆಳಗೆ ಲೈಪ್ ಎನ್ಯೂ ರೆಂಸ್ ಮೂಲಕ
ಸಂದಾಯವಾಗತಕ್ಕ ದ್ದು .”
108. Further, the father divides the movable properties i.e. the
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amount ie., the share given to the daughters to an extent of
1/7th share and so far as the immovable property is concerned,
a share to an extent of 4/17th share is being allotted to
Siddnnaiah himself and his two sons B.S. Devraj and
B.S.Mallikarjun.
109. The property that is fallen to the share of Siddnnaiah is,
Survey No. 20, Coffee Estate measuring 13 acres 7 guntas. 2nd
item is Sy.No. 21 measuring 5 acres 28 guntas. The 3rd item is
Survey No.20/5 measuring 1 acre 11 guntas. And Item No. 4 is
Survey No.46. Measuring 37 guntas. And Item No. 5. is
Sy.No.30 measuring 2 acres 10 guntas. Item No. 6. Sy.No.33
measuring 23 guntas. And Item No.7 is 5 acres and it also
reflects of the new Koppalu area measuring 5 acres. The
property is situated at Daithyapura bearing Sy.No.9 measuring 2
acres 5 guntas and again Sy.No.10 measuring 3 acres 35
guntas. Sy.No.36/2 measuring 43 acres 25 guntas. The houses
as well as the vacant space attached to the said site and
Sy.No.1/3 measuring 12 guntas consisting of Mangalore Tiled
House. And further Property bearing No.2/2 measuring 1 acre 1
gunta. Survey No.14 measuring 2 acre 8 guntas and a new
house constructed therein. And further property bearing Sy.No.9
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measuring 2 acres 5 guntas, Property bearing Sy.No. 35
resurvey No.9 measuring 5 acres 35 guntas. And the above
properties are demarcated as properties of Daithyapura Estate.
And further the said partition also reflects of the properties
having acquired recently from one Narayan Rao and Venkata
Rao. of Naviluhalli Village, Aluru Taluk, Hospete in Survey No.
27, measuring 1 acre 4 gunas. And gain another property
measuring 1 acres in 29 guntas and further survey No.27
measuring 1 acre 6 guntas and Sy.No.29/1 measuring 1 acre 36
guntas and these properties are also part of Daithyapura Estate.
All these properties are being acquired and it is fallen to the
share of Siddnnaiah. These properties were allotted to the
share of B.Siddannaiah. Therefore these properties were held in
hands of Siddannaiah as his share under the said Partition
Deed. Therefore, these properties were dealt by Siddannaiah,
as his separate properties. When clear 1/17th share was given
to this Plaintiff, can Plaintiff claim that there was no partition?
110. Now moving to the shares and the properties allotted to
B.S. Devaraju are the properties that are situated at Manjirabad
Balu village ie., Survey No. 191, measuring 1 acre 6 guntas.
Sy.No.192 measuring 2 acres 10 guntas consisting of a house
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and paddy field. Sy.No. 93 measuring 3 acres 5 guntas. Sy.No.
54 measuring 29 guntas only. Sy.No. 105 measuring 1 acre 22
guntas. Sy.No. 106 measuring 2 guntas and other items as well
and the properties situated at Chikkanayakanahalli village
bearing Sy.No. 64, measuring 4 acres 23 guntas and Sy.No.
36/2 measuring 14 guntas, Sy.No. 36/4 measuring 26 guntas.
And further the properties are situated at Hosakerehalli village
ie., about 4 items of Hosakerehalli village is give to B.S. Devaraj.
111. Now moving to the 3rd sharer ie., the share of B.S.
Mallikarjun, it is in respect of Balu village, Sy.No. 190 measuring
2 acres consisting of a house, Sy.No. 191 measuring 1 acre 6
gunts. Sy.No. 24 measuring 1 acre 1 gunta. Sy.No. 193
measuring 4 acres 10 guntas. Likewise, Item No.E, F, G, H, I, J,
K, M, N. P, Q are all allotted to his share.
112. By then it is crucial to note that the said deed also reflects
of Mallikarjun being a minor represented by Guardian
Manoharamma on behalf of minor children Manoharamma has
affixed her signature on the document. Thereby, some share
was given to minor unmarried daughters as well. Till date the
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Plaintiff neither denies it nor has she challenged it.
113. Further, after a partition is effected as of 30.06.1956,
Siddannaiah has also executed a Will vide Ex.D4. The Will
reflects of another partition It reads as follows ” ಈ ಹಿಂದೆ ತಾ.
27.10.1956 ನೇ ಇಸವಿಯಲ್ಲಿ ಆಲೂರು ಸಬ್ ರೆಜೆಸ್ಟಾ್ ರರ್
ಆಫೀಸಿನಲ್ಲಿ 1143 ನೇ ನಂಬರ್ನಲ್ಲಿ ವ್ಯ ವಸ್ಥಾ ಪತ್ರ ” is said to have
been effected. But the said document is not placed on record.
And after the said partition, certain properties that are fallen to
his share are being given under the Will. Under the said Will
Exhibit D4 also the Testator Siddnnaiah reflects of having given
certain amounts to the daughters, which is culled out
hereunder :-
“ನಾನು ಈಗಾಗಲೇ ನನ್ನ ಹೆಣ್ಣು ಮಕ್ಕ ಳಾದ ಕುಸುಮಾ ರವರಿಗೆ
20 ಸಾವಿರ ರೂ.ಗಳು ಭಾರತಿರವರಿಗೆ 10 ಸಾವಿರ ರೂ.ಗಳು
ಕಾಪ್ರೊ ರೇಪ್ಪ ನ್ ಬ್ಯಾ ಂಕ್ ಡಿ.ಡಿ. ಮೂಲಕ ಕೊಟ್ಟಿ ರುತ್ತೆ ೕನೆ.
ಉಳಿದ ಇಬ್ಬ ರು ಹೆಣ್ಣು ಮಕ್ಕ ಳಾದ ಸುಂದರಿ ಮತ್ತು ತಂಗ್ಯ ಮ್ಮ
ಇವರಿಗೆ ಆಲೂರು ತಾಲ್ಲೂ ಕು ತಲಾ 10 ಸಾವಿರ ರೂ.ಗಳು
ಕೊಟ್ಟಿ ರುವುದು.” and whatever the amount remained in the
name of the Testator would go to Manoharamma. his son
129
O.S.No.4166/1995Mallikarjun and his daughters-in-law were to equally divide
the said amount. So also the jewelries that are kept in the
bank to be divided amongst Manoharamma. Mallikarjun
and his wife Suguna. Thereby the testator that is
Siddannaiah has executed a Will in respect of the
properties that were retained by him. All the properties
including amount is being bequeathed under the Will.
Thereby, as a prudent person he has had the account of
properties retained and accordingly bequeathed the
properties by way of Will and Codicil. Thereby as the
daughter or children, there was nothing available for the
Plaintiff and the Defendants to be divided under this suit.
All the properties that were retained by Siddannaiah as on
the date of Will and later as on the date of Codicil were all
bequeathed at the interest of the testator. Therefore,
nothing remained to be partitioned.
114. In the said partition there is reflection of another daughter
by name Thangyamma. Initially in the year 1956 when a
partition was effected all the children were minors. After the
partition is said to have taken place, subsequently, Thangyamma
is said to have been born. And this Thangyamma is not at all
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O.S.No.4166/1995shown with any share in the said properties. Therefore, the
Plaintiff claims what about the share of said Thangyamma? For
the first time her share is given by way of certain amount by
virtue of the Will. It is crucial to note that vide Ex.D1 and in the
oral evidence, P.W.1 has herself admitted of the fact that
Siddannaiah was a man of principles. If he has effected, not just
the Property of the year 1956, till his last breath and by the Will
and Codicil, the intention was clear, he wanted the properties to
be enjoyed in the manner and by person, he had given his share
in the manner as decided by him. Therefore, the Plaintiff cannot
interpret a Registered document to suit her interest. The
intention of late Siddannaiah was two fold. First, he had
exercised his right and interest in the Property fallen to his share
as his separate Property. Second, he has given his interest and
right in favour of the persons whom he wanted to enjoy those
properties. Thereby, interest of Siddannaiah was clear and
unequivocal.
115. As per Ex.D11 ie., ವ್ಯ ವಾಸ್ಥಾ ಪತ್ರ is taken place in
between Rasthemane Mallegowda and his younger brother
Guruvegowda. Certain shares have been given by the
grandfather of the present Plaintiff ie., Rasthemane Mallegowda
131
O.S.No.4166/1995in favour of Siddannaiah, way back in the year 1932. The
Plaintiff was not at all born by then. Thereafter, after nearly 24
years Siddannaiah has developed the properties and thereafter
effected partition. Therefore, the Property lost its identity as a co-
parcenery as well. Therefore, what right can a Plaintiff claim?
116. Further, Exhibit D19 and D20 are the documents that are
produced by the Defendant, whereby, it is a challan for having
paid advance advance tax under the income tax. It is titled as
Partner of Daithyapura Estate, Balupet. And in this regard,
Exhibit D33 is placed. But it is in respect of Deepa Associates.
And the names of Partners reflects B.S. Devraj, a Coffee
Planter, B.Varadaraj, B.D.Basavanna, B.D.Shashidhar,
B.D.Prabhushankar, B.D.Hemalatha, B.N. Varadaraj and one
Rajendra. As Coffee Planters. These documents also refer of
HUF in the sense “HINDU UNDIVIDED FAMILY”. Therefore, the
members so pleaded Partners were all related to the joint family
as members of the joint family.
117. The Hon’ble Apex Court relying upon the Verdict of G.
Narayan Raju Vs. G. Chamaraju and others, (AIR 1968 SC
132
O.S.No.4166/19951276) held in the case of Kiran Devi Vs. Bihar State Sunni Wakf
Board has held as under :-
“There is no presumption under Hindu Law the business
and trading in the name of any member of the Joint Family
is a joint business even if that member is the Manager of
the Joint Family unless it could be shown that the
business in the hands of the co-parcener grew up with the
assistance of the joint funds procured or Joint Family
funds or that the earnings of the business were blended
with the Joint Family estate.”
118. In the case in hand as well, mere stray entry in the Income
Tax Returns will not confirm the Joint Family status or Joint
Family business. Further there is no document to prove or to
evidence blending of properties. Further the oral evidence and
the documents would go to show that, out of the properties fallen
to the share of Defendant No.1 and 2 also dealt with the same
as their separate properties in their own individual capacity.
119. Further, Exhibit D34 is the typed copy of a Sale Deed
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O.S.No.4166/1995
between in respect of Mr. Sheldi between Ali Asgar Mirza, S/o.
Late Hymayun Mirza, aged 32 years, represented by his Power
of Attorney Holder in favour of M/s. Deepa Associates, a
registered firm, having its place of business as No. 435,
Rajmahal Vilas Extension, Bengaluru, represented by its
Managing Partner, B.S.Devraj, S/o. B. Siddannaiah. It is dated
1981. It is in respect of the Property comprising of property No.
149, Old No. 44, Infantry Road, Bengaluru Civil Station as on
1981. The said property is acquired in the name of the Firm.
120. Defendant counsel would rely upon a citation in their
arguments and emphasized of the contents of revenue
documents, whereby presumption with regard to the revenue are
concerned. In this regard, the Defendants have relied upon a
citation reported in (2012) 13 Supreme Court Cases 759 in the
case of BHIMAPPA CHANNAPPA KAPALI (DEAD) BY LRS. Vs.
BHIMAPPA SATYAPPA KAMAGOUDA (DEAD) BY LRS. AND
OTHERS. Wherein it is held as under :-
“Proof – Entries in record of rights – Presumption of
truthfulness – Rebuttal – Entry made in record of rights on
134
O.S.No.4166/1995basis of vardhi given by statutory authority, showing
creation of tenancy by widow of original owner of land in
favour of appellant – No evidence showing that original
owner inducted appellant as tenant or permitted him to
cultivate the land – No evidence showing that before
entering appellant’s name in record of rights competent
authority followed procedure prescribed under Sections
128 and 129 of Karnataka Land Reforms Act – Held as
under :
“Entry in record of rights cannot be presumed to be true
and conclusive under Section 133 and same cannot be
relied upon for entertaining appellant’s claim for being
declared as occupant for grant of occupancy right –
Competent court having declared gift deed to be valid,
appellant cannot be said to be lawfully cultivating the land
and he cannot claim to be deemed tenant.”
121. The above said citation is relied by the Defendants to
counter the claim of the Plaintiff, whereby the Plaintiffs have
relied upon the RTC in order to show that certain revenue
records are standing in the name of B. Siddannaiah. ie., ವರದಿ in
respect of the properties standing in the name of the Joint
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Family ie., B. Siddannaiah. Whereby Exhibit P6 to 20 are the
Index of lands. All these documents reflects of the property
standing in the joint names and further it is also crucial to note
whereby the Plaintiff has drawn the attention of this Court to To
Exhibit P8, wherein the name of B. Siddannaiah. B.S.Devraj,
B.S. Mallikarjun in respect of the properties are effected as on
the basis of the ವಿಭಾಗ / Partition. And it is also crucial to note
that late B. Siddannaiah has effected the partition in respect of
the properties that were standing in his name in favour of himself
and his children for the reasons that the said properties were as
on that date joint family properties and thereafter the moment
partition took place, it lost its identity as Joint Family properties,
so also the Joint Family.
122. And so far as the citation relied by the Defendant with
regard to the revenue entries discussed supra, it is held that “the
revenue entries have a presumptive value and therefore, until
and unless it is rebutted.” Therefore the contents of the said
documents i.e. Exhibits P6 to P20, are concerned, the
Defendants have relied on Ex.D2 and D11, two crucial
documents to rebutt the presumption. That being the case, the
said presumption has to be drawn in favour of the Defendants,
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O.S.No.4166/1995
holding that the revenue entries made in Exhibits P6 to P20
were rebutted by the Defendants.
123. Further the counsel for the Plaintiff has relied upon the
Verdict of Hon’ble High Court of Allahabad in the case of
Hariprasad v/s. Ramadevi reported in AIR 1964 All 112, wherein
it is held as under :-
“There would be a presumption that a minor is joint with
his father and his status cannot be disturbed during his
minority except by the decree of the court or by operation
of law”.
124. If so, who should challenge, it is the son, but the suit is
filed by daughter, without challenging the partition, Plaintiff only
recites as a mantra of Joint Family, without proper pleading
challenging the said deed of partition. Therefore, this citation
may be of less assistance to the Plaintiff.
125. The Plaintiff has drawn the attention of this Court with
regard to certain oral averments of PW.1, which is culled out
hereunder :-
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“It is false to suggest that Siddannaiah had purchased
Diwan’s Estate in the name of PW1. It is not true to
suggest that later he shifted to the house in the said
Estate, though there was no Partition. Daityapura Estate
means the property fallen to the share of my father. It is
not true to suggest that Daithyapura Estate had not fallen
to the share of my father. It is true that in page 135 of
Exhibit D1 there is a mention that Daithyapura Estate was
divided in the year 1974. There was no partition in the
year 1974. It is false to suggest that Siddannaiah had
created Ex.D2 and D3 for account purpose and such other
purpose. It is not true to suggest that Exhibit D2 and D3
were not acted upon.”
126. The Defendants in furtherance of the issues casted upon
them have however got examined one B.D Prabhu Shankar,
S/o. B.S. Devraj as D.W.1. He has reiterated the written
statement in relation to the defence put up by the original
Defendant B.S.Devraj. It is the contention of the Defendants that
the 1st Defendant was living separately from 1974 in his own
house. But from the date of partition till 1974, 1st Defendant was
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O.S.No.4166/1995
living in a portion of the house fallen to his share along with his
wife and children separately from the 3rd Defendant and her
children. Separate income taxes have been paid by his father,
mother and late B. Siddannaiah and the fact of allotment of
properties to the members of family are known amongst all the
relatives of the Plaintiff and the Defendants’ family. Apart from
the same it is also crucial to note that this witness has not said
anything with regard to the share of the daughters of B.
Siddannaiah.
127. This D.W.1 was further examined in relation to the Exhibits
marked at Exhibit D38 and D39, the ledger books maintained by
late B. Siddannaiah, in which the entries were made by Writer P.
S. Suryanarayana, who is said also called by name Writer
Gundappa. Ex.D38 and 39 are the separate accounts
maintained by B. Siddannaiah with regard to income and
expenditures incurred by him. Similarly, separate accounts are
also maintained vide Exhibits D38 and 39. In this regard also
there is no pleadings. Certain crucial aspects are highlighted in
the cross-examination of D.W1, which is culled out hereunder :-
“A suggestion is put to the witness that though a Partition
Deed was entered into, but the contention of the Plaintiff
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O.S.No.4166/1995is that the said partition was not entered into with an
intention to effect a division in the family or the joint family
status. But to keep the property intact some arrangements
went on being made by B. Siddannaiah until his demise.
Whereby the witness has admitted as under :-
“It may be true that they were minors at the time of
partition deed executed in our family from the time of my
great grand father. The partition deed marked at Ex.D11
was executed between my great grand father namely
Rastemane Mallegowda and his four sons. It is true that
this Partition Deed was made between Rastemane
Mallegowda and Gurappa, S/o Guravegowda. In this
document there is mention as to properties to be given to
the sons of Rastemane Mallegowda and Gurappa. It may
be true that as on the date of this document Basavegowda
and Gurappa were minors. It is true that in Ex.D11 there is
no mention about other two daughters of Mallegowda.
Witness volunteers that by that time the said other two
daughters were married and as such their names were not
mentioned in the said document. I don’t know as to when
Siddannaiah and Basappa got separated. It is true that in
the said settlement deed there is s mention that Rastmane
140
O.S.No.4166/1995Mallegowda shall look after the property of Basappa
during his life time and that after his death, his second
wife Basamma should look after the said properties
(at Ex.P54).
“ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ಮತ್ತು ಮಲ್ಲಿ ಕಾರ್ಜುನ ರವರು ಸ್ವ ಯಾರ್ಜಿತ
ಸ್ವ ತ್ತು ಗಳನ್ನು ಹೊಂದಿದ್ದ ಬಗ್ಗೆ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ , 1 ನೆ
ಪ್ರ ತಿವಾದಿಯು ಸಲ್ಲಿ ಸಿರುವ ಪ್ರ ತಿವಾದ ಪತ್ರ ದಲ್ಲಿ ಅವರು
ಹೊಂದಿದ್ದ ಸ್ವ ಯಾರ್ಜಿತ ಸ್ವ ತ್ತು ಗಳ ಬಗ್ಗೆ ನಮೂದಿಸಿಲ್ಲ .”
128. Here, the witness though pleads his ignorance he is not in
a position to say as to if at all were there any properties self
acquired by Siddannaiah or Mallikarjun. Further this witness
who is one of the family member and also the legal heir of
Defendant No. 1 has pleaded his ignorance to the main crucial
aspect, which is culled out hereunder :-
“ರಸ್ತೆ ಮನೆ ಮಲ್ಲ ೇಗೌಡನವರ ಕುಟುಂಬದಲ್ಲಿ ಇದ್ದ ಚರ
ಸ್ವ ತ್ತು ಗಳ ವಿವರ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ , ಚರ ಸ್ವ ತ್ತು ಗಳಲ್ಲಿ ಯಾರಿಗೆ,
ಏನೆಲ್ಲಾ ಸ್ವ ತ್ತು ಗಳನ್ನು ನೀಡಿದ್ದಾ ರೆ ಎಂದು ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ ,
1 ನೆ ಪ್ರ ತಿವಾದಿಗೆ ಎಷ್ಟು ಚರ ಸ್ವ ತ್ತು ಗಳು ಬಂದಿವೆ ಎಂದು ನನಗೆ
141
O.S.No.4166/1995ಗೊತ್ತಿ ಲ್ಲ , ಮೂರು ಜನ ಹೆಣ್ಣು ಮಕ್ಕ ಳಿಗೆ 1/17 ನೆ ಭಾಗವನ್ನು
ಕೊಟ್ಟಿ ದ್ದಾ ರೆ. ಅದನ್ನು ಹಣದ ರೂಪದಲ್ಲಿ ಬ್ಯಾ ಂಕ್ನಲ್ಲಿ
ಠೇವಣಿ ಮಾಡುವ ಮೂಲಕ ನೀಡಿದ್ದಾ ರೆ. ಸದರಿ ಹಣವನ್ನು
ಯಾವ ಬ್ಯಾ ಂಕ್ನಲ್ಲಿ ಠೇವಣಿ ಮಾಡಲಾಗಿತ್ತು ಎಂದು ನನಗೆ
ಗೊತ್ತಿ ಲ್ಲ , ಸದರಿ ಹೆಣ್ಣು ಮಕ್ಕ ಳ ಹೆಸರಿನಲ್ಲಿ ಆ ದಿನಕ್ಕೆ ಬ್ಯಾ ಂಕ್
ಖಾತೆಗಳು ಇದ್ದ ಬಗ್ಗೆ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ , ಹೆಣ್ಣು ಮಕ್ಕ ಳ
ಹೆಸರಿನಲ್ಲಿ ಠೇವಣಿ ಮಾಡಿದ್ದ ಬಗ್ಗೆ ನಾನು ದಾಖಲೆಯನ್ನು
ಕೊಟ್ಟಿ ಲ್ಲ , ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು ಅವರ ಎಲ್ಲಾ ಮಕ್ಕ ಳನ್ನು
ಸಮಾನವಾಗಿ ನೋಡುತ್ತಿ ದ್ದ ರು ಎಂದರೆ ನಿಜ. ನನ್ನ ತಾತನಿಗೆ
ಸುಮಾರು 57 ವರ್ಷ ಆಗಿತ್ತು ಮತ್ತು ಅವರಿಗೆ ಸಕ್ಕ ರೆ ಖಾಯಿಲೆ
ಇತ್ತು , ಅಲ್ಲ ದೇ ನನ್ನ ತಾತನವರ ಎರಡನೇ ಹೆಂಡತಿಗೆ
ಒಂದುವರೆ ವರ್ಷದ ಗಂಡು ಮಗು ಇತ್ತು . ಆದ ಕಾರಣ ನನ್ನ
ತಾತನವರು ಇನ್ ಸೆಕ್ಯೂ ರಿಟಿಯಿಂದಾಗ ವಿಭಾಗ ಪತ್ರ
ಮಾಡಿದ್ದ ರು. ಈ ಕಾರಣವನ್ನು ನಾನು ಈಗ ಸೃಷ್ಟಿ ಸಿ
ಹೇಳಿರುತ್ತ ೇನೆ ಎಂದರೆ ಸುಳ್ಳು .”
129. Further DW.1 in his evidence has stated that,
“It is true that mainly we were growing Coffee. We used to
pool the Coffee seeds to Coffee Board. It is true that we
used to get money from Coffee Board on different dates. It
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O.S.No.4166/1995
is true to that usually we used to get money for pooled
Coffee Seeds by succeeding year. As on the date of Ex.D2
we had not received money from Coffee Board, As such
there was no mention about such money in Ex. D2. It is
true that in Ex.D2 there is no mention about the amount
already received or about the amount to be received in
future.
130. Though the witness contends that after the partition,
Defendant No. 1 and his family were residing in the house
allotted to his share, he has admitted further that
“In page 150 of Exhibit D1 there is a mention that
Defendant No. 1 was residing with Siddannaiah at the
time of the birth of D.W1. It is true that, it is mentioned at
page 135 of Exhibit D1 there is a mention that Daithapura
Estate was divided in the year 1974. There was no
partition in the year 1974.”
131. This witness has further admitted as under :-
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O.S.No.4166/1995
“ಸಿದ್ದ ಣಯ್ಯ ನವರು ಅವರ ಹೆಣ್ಣು ಮಕ್ಕ ಳ ಹೆಸರಿನಲ್ಲಿ
ಯಾವುದೇ ಕ್ರ ಯಪತ್ರ ವನ್ನು ಮಾಡಿಲ್ಲ ಎಂದರೆ ನಿಜ. 1 ಮತ್ತು
2 ನೆ ಪ್ರ ತಿವಾದಿಯರು ವಿಲ್ನ್ನು ಸ್ವ ತಃ ತಾವೇ ತಯಾರಿಸಿ ಸದರಿ
ದಾಖಲೆಗೆ ಸಿದ್ದ ಣಯ್ಯ ನವರ ಸಹಿಯನ್ನು ಪಡೆದಿರುತ್ತಾ ರೆ
ಎಂದರೆ ಸುಳ್ಳು . ಸದರಿ ವಿಲ್ಗೆ ಮಲ್ಲ ೇಗೌಡ ಮತ್ತು ಧರ್ಮಪ್ಪ
ಎನ್ನು ವವರು ಸಾಕ್ಷಿ ಗಳಾಗಿ ಸಹಿ ಮಾಡಿದ್ದಾ ರೆ.
ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು ತೀರಿಕೊಳ್ಳು ವವರೆಗೆ ಲೆಕ್ಕ ಪತ್ರ ಗಳನ್ನು
ಇಟ್ಟು ಕೊಂಡಿದ್ದ ರು ಎಂದರೆ ನಿಜ. ಮುಂದುವರಿದು
ಸಂಬಂಧಿತ ವರ್ಷದ ಲೆಕ್ಕ ದ ಪುಸ್ತ ಕ ಇಲ್ಲ ಎಂದು ಹೇಳುತ್ತಾ ರೆ.
5 ನೆ ಪ್ರ ತಿವಾದಿಗೆ ರೂ. 20 ಸಾವಿರ ಪಾವತಿಸಿದ ಬಗ್ಗೆ , 6 ನೆ
ಪ್ರ ತಿವಾದಿಗೆ ರೂ. 10 ಸಾವಿರ ಪಾವತಿಸಿದ ಬಗ್ಗೆ ಹಾಗೂ 4 ನೆ
ಪ್ರ ತಿವಾದಿಗೆ ರೂ. 10 ಸಾವಿರ ಪಾವತಿಸಿದ ಬಗ್ಗೆ ಲೆಕ್ಕ ದ
ಪುಸ್ತ ಕದಲ್ಲಿ ನಮೂದು ಇಲ್ಲ .”
132. Further in his Cross-examination it is also elicited as
under:-
“ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು 28.12.1996 ರಿವೋಕೇಷನ್ ಡೀಡ್ನಲ್ಲಿ
ಹಿಂದೆಯೇ ಮಾರಲಾದ ಸ್ವ ತ್ತು ಗಳನ್ನು ಸಹ ಸೇರಿಸಿರುತ್ತಾ ರೆ
ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ .”
133. In the case of Smt. Ragamani Vs. Jagmet and others,
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O.S.No.4166/1995
Hon’ble High Court of Chattisgarh reported in 2025 LiveLaw
(CHH-89), Their Lordships clarified that
“A daughter can claim her right over such property in the
absence of son. In the words of the Court it is well
settled legal position of law that as per Mithakshara law,
the daughter is not entitled to inherit the property of her
father before the enactment of the Act of 1956. Under
the Mithakshara law, even the self-acquired property of
a male devolved exclusively upon his male issue and
only in the absence of such a male issue, did it pass to
the other heirs and as per law of inheritance, the self-
acquired estate of a male would descend to his male
issue and only in default of such issue would it descend
to others.”
Therefore for this reason also, the Plaintiff may not have
any right in the Property of Siddannaiah.
134. It is also crucial with regard to the Plaintiff having occupied
the present premises that is where the present Plaintiff is been
residing is concerned, certain crucial aspects are listed.
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O.S.No.4166/1995
“5 ನೆ ಪ್ರ ತಿವಾದಿಯ ಮನೆಯನ್ನು ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು
ಕಟ್ಟಿ ಸಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಸದರಿ ಮನೆಯನ್ನು
ಕಚ್ಚಿ ಸುವ ಕಾಲಕ್ಕೆ 5 ನೆ ಪ್ರ ತಿವಾದಿಯು ವಾದಿಯ ಮನೆಯಲ್ಲಿ
ವಾಸವಾಗಿದ್ದ ರು ಎಂದರೆ ನಿಜ. ವಾದಿಯ ಮನೆಯಲ್ಲಿ ದತ್ತು
ವಿಚಾರವಾಗಿ ಗಲಾಟೆಯಾದ ಕಾರಣದಿಂದ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು
ಸದಾಶಿವನಗರದಲ್ಲಿ ಮನೆ ಮಾಡಿ ವಾದಿಯನ್ನು ಅಲ್ಲಿ
ಇರಿಸಿದ್ದ ರು ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ . 1974 ರಲ್ಲಿ 5 ನೆ
ಪ್ರ ತಿವಾದಿಯ ಮನೆ ಕಟ್ಟಿ , ಪೂರ್ತಿ ಆದ ಬಳಿಕ
ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು ಆ ಮನೆಯನ್ನು ವಾದಿಗೆ ಕೊಡುವುದಾಗಿ
ಹೇಳಿ ಆಕೆಯನ್ನು ಸದಾಶಿವನಗರದ ಮನೆಯಿಂದ ಸದರಿ ಮನೆಗೆ
ಸ್ಥ ಳಾಂತರಿಸಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸುಳ್ಳು .”
135. So, this is the reason why the Plaintiff was put into the
said premises. Further there is a crucial admission with regard to
movable properties :
“ರಸ್ತೆ , ಮನೆ ಮಲ್ಲ ೇಗೌಡರ ಕಾಲದಿಂದಲೂ ಯಾವುದೇ ವಿಭಾಗ
ಪತ್ರ ದಲ್ಲಿ ಚರ ಸ್ವ ತ್ತು ಗಳು ಸೇರಿಲ್ಲ ಎಂದರೆ ನಿಜ. ಚರ
ಸ್ವ ತ್ತು ಗಳನ್ನು ಗಂಡು ಮಕ್ಕ ಳು, ಸೊಸೆಯಂದಿರು ಮತ್ತು
ಮೊಮ್ಮ ಕ್ಕ ಳು ಅನುಭವಿಸುತ್ತಿ ದ್ದ ರು ಎಂದರೆ ಅವರವರ
146
O.S.No.4166/1995ಹೆಸರಿನಲ್ಲಿ ದ್ದ ಸ್ವ ತ್ತು ಗಳನ್ನು ಅನುಭವಿಸುತ್ತಿ ದ್ದ ರು.
ಆಭರಣಗಳು ಯಾರ ಹೆಸರಿನಲ್ಲಿ ಯೂ ಇರಲಿಲ್ಲ ಎಂದರೆ ನನಗೆ
ಗೊತ್ತಿ ಲ್ಲ .”
136. Further, “ನಿ.ಡಿ. 30 ರಿಂದ ಡಿ. 32 ರಲ್ಲಿ ನನ್ನ ತಂದೆಯ
ಸ್ಟ ೇಟಸ್ನ್ನು ಹೆಚ್ ಯುಎಫ್ ಎಂದು ನಮೂದಿಸಲಾಗಿದೆ ಎಂದರೆ
ನಿಜ. ಅಶ್ರ ಯ ಇಂಟರ್ನ್ಯಾ ಷನಲ್ ಹೋಟೆಲ್ನ್ನು
ಪಾಲುದಾರಿಕೆಯಲ್ಲಿ ನಡೆಸಲಾಗುತ್ತಿ ದೆ. ರಪಬ್ಲಿ ಕ್ ಹೋಮ್ಪ್ರ ೈವೇಟ್
ಕಂಪನಿ ಆಗಿದೆ. ನಾನು ದೀಪಾ ಅಸೋಸಿಯೆಟ್ಸ್ ಹೆಸರಿನಲ್ಲಿ ಒಂದು
ಪಾಲುದಾರಿಕೆ ಸಂಸ್ಥೆ ಯನ್ನು ನೊಂದಾಯಿಸಿರುತ್ತ ೇನೆ ಎಂದರೆ ನಿಜ.
ಸದರಿ ಸ್ವ ತ್ತ ನ್ನು ನನ್ನ ತಂದೆಯವರು ಅಸೋಸಿಯೆಟ್ಸ್ ನ
ಆಡಳಿತ
ಪಾಲುದಾರರಾಗಿ ಖರೀದಿಸಿದ್ದಾ ರೆ ಎಂದರೆ ನಿಜ.”
137. Further with regard to Ex.P30 is concerned, this witness
has stated as under :-
“ನನ್ನ ತಂದೆ ಪ್ರ ತಿವಾದ ಪತ್ರ ದ ಜೊತೆಗೆ 28.12.1966 ರ
ವ್ಯ ವಸ್ತಾ ಪತ್ರ ದ ರದ್ದಿ ಯಾತಿ ಪತ್ರ ವನ್ನು ಹಾಜರು ಪಡಿಸಿದ್ದ ರು
ಅಂದರೆ ಸರಿ, ಸದರಿ ರದ್ದಿ ಯಾತಿ ಪತ್ರ 29.12.1966 ರಲ್ಲಿ
ನೊಂದಣಿಯಾಗಿರುತ್ತ ದೆ. ನಿ.ಡಿ.9 ರಲ್ಲಿ ಸರ್ವೆ ನಂ.46 ಇದನ್ನು
ನಿ.ಪಿ.64 ರ ಪ್ರ ಕಾರ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು 1 ನೇ ಪ್ರ ತಿವಾದಿಗೆ
147
O.S.No.4166/1995ಮಾರಿದ ಬಗ್ಗೆ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ . ದಿ.18.4.1959 ರಲ್ಲಿ ನಮ್ಮ
ತಂದೆ 1 ಮತ್ತು 2 ನೇ ಪ್ರ ತಿವಾದಿಯವರಿಗೆ ಸರ್ವೆ ನಂ. 9, 10,
36/2, 1/2, 1/3 ಇವುಗಳನ್ನು ಕ್ರ ಯಪತ್ರ ಮಾಡಿಕೊಟ್ಟ ರು
ಅಂದರೆ ಸರಿ. ನಂತರ ಸಿದ್ದ ಣ್ಣ ನವರು ಮೇಲೆಳಿದ ಸ್ವ ತ್ತು ಗಳನ್ನು
ಪುನಃ ವ್ಯ ವಸ್ತಾ ಪತ್ರ ದಲ್ಲಿ ಮತ್ತು ರದ್ದಿ ಯಾತಿ ಪತ್ರ ದಲ್ಲಿ
ಉಲ್ಲ ೇಖ ಮಾಡಿರಬಹುದು ಎಂದು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾ ರೆ.”
“ನಿ.ಪಿ.30 ರ ಪ್ರ ಕಾರ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ನವರು ಹೇಳಿದ ಪ್ರ ಕಾರವೇ
ಸದರಿ ದಾಖಲೆಯನ್ನು ತಯಾರು ಮಾಡಿರುತ್ತಾ ರೆ ಎನ್ನು ವ
ಸೂಚನೆಗೆ ಸಾಕ್ಷಿ ಇದ್ದಿ ರಬಹುದು ಅಂತ ಹೇಳುತ್ತಾ ರೆ. ನಿ.ಪಿ.30
ರಲ್ಲಿ ಮನೋಹರಮ್ಮ ತನಗಾಗಿ ಮತ್ತು ಅಪ್ರಾ ಪ್ತ ವಯಸ್ಕ
ಮಲ್ಲಿ ಕಾರ್ಜನನ ಪರವಾಗಿ ಸಹಿ ಮಾಡಿರಬಹುದು. ನಿ.ಪಿ.30
ಮತ್ತು 32 ರಲ್ಲಿ ನಮೂದಿಸಿದ ಹಣ ವರ್ಗಾವಣೆಯಾದ ಬಗ್ಗೆ
ನನ್ನ ಹತ್ತಿ ರ ಯಾವುದೇ ದಾಖಲೆ ಇಲ್ಲ .”
138. So this oral evidence also goes to show that all these
documents which were executed at the instance of Siddannaiah
were all in order to keep the property intact.
139. Further as stated by DW1, The said Siddannaiah has
executed all these documents out of insecurities. As such, the
above issues ie., Issue Nos.4 to 7 are answered in the
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affirmative. Further The Defendants contention is that, the
Plaintiff had obtained the certified copies of the documents way
back in the year 1980. Therefore, the Plaintiff was aware of the
said division of the property and therefore the Plaintiff had also
attained majority long back and in order to set aside the said
deeds of Partition of 1956 the Plaintiff should have filed suit
within the period of 3 years from the date of Plaintiff having
attained the majority. But in the case in hand, the cause of action
as pleaded by the Plaintiff is dated 23.06.1995 only when the
Plaintiff came to know that the Plaintiff was denied with the
share in the property. Therefore based upon the cause of action
as alleged by the Plaintiff, as on 23.06.1995, the Plaintiff for the
first time came to know of the fact that she is not given a share
in the property or she is denied of the share in the suit property
by the present Defendants. As such, she has approached this
court seeking for partition. Therefore, based upon the alleged
date of cause of action, the suit is within time
140. From the documentary and ocular evidence, it is clear
that there was a partition effected as on 30.05.1958 and the
recitals of the said document reads as under :-
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O.S.No.4166/1995
“ಬಿ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ ಒಂದುದ ಇವರ ಒಂದನೇ ಮಗ ಸುಮಾರು
ಇಪ್ಪ ತ್ತ ೇಳು ವರ್ಷ ವಯಸ್ಸಿ ನ ಬಿ ಎಸ್ ದೇವರಾಜ ಎರಡು,
ಎರಡನೇ ಮಗ ಸುಮಾರು ನಾಲ್ಕು ವರ್ಷ ವಯಸ್ಸಿ ನ ಬಿ ಎಸ್
ಮಲ್ಲಿ ಕಾರ್ಜುನ ಮೈನರೆ ಗಾರ್ಡಿಯನೆ ತಂದೆ ಬಿ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ
ನವರು ಮೂರು, ಮಗಳು ಸುಮಾರು ಹನ್ನೊ ಂದು ವರ್ಷ
ವಯಸ್ಸಿ ನ ಕುಸುಮ, ನಾಲ್ಕು , : ಒಂಬತ್ತು , ವಯಸ್ಸಿ ನ ಮಗಳು
ಭಾರತಿ, ಐದು: ಸುಮಾರು ‘ಏಳು ವರ್ಷ ವಯಸ್ಸಿ ನ ಸುಂದರು
ಆರು, ಈ 4 ದ 5 6 ನೆಯುವರು ಮೈನರೆ ಗಾರ್ಡಿಯನ್ಖಾಸಾ
ತಾಯಿ ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ ಮತ್ತು 1 ನೇ ಸಿದ್ದ ಣ್ಣ ಯ್ಯ
ನವರ ಹೆಂಡತಿ ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ ಏಳು.”
141. Thereby, the late Siddannaiah has effected a Settlement
Deed of partition. In the recitals, he has recited as under :-
“ಏನೆಂದರೆ ಮೇಲ್ಕ ಂಡ ನಾವುಗಳೆಲ್ಲ ರೂ 30.06.1956 ರ
ರವರೆಗೂ ಅವಿಭಕ್ತ ಕುಟುಂಬದಲ್ಲಿ ದ್ದು ಆ ನಂತರ ಆ ದಿವಸ
ನಮ್ಮ ಗಳ ಬಾಬ್ತು ಒಟ್ಟು ಕುಟುಂಬದ ವಿಶಿಷ್ಟ , ಅಸ್ತಿ ಗಳನ್ನು
ವಿಭಾಗ ಮಾಡಿಕೊಂಡು ಸದರಿ ವಿಭಾಗ ಪತ್ರ ವನ್ನು ಆಲೂರು
ಸಬ್ ರೆಜಿಸ್ಟಾ್ ರರ್ರ್ ಕಛೇರಿಯಲ್ಲಿ ನೊಂದಣಿ
ಮಾಡಿಸಿಕೊಂಡಿರುತ್ತೆ ೕವೆ.”
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142. So, in the said Deed as well i.e. dated 30.05.1958 as
well, late Siddannaiah has recited about the division of the
joint family status way back in the year 30.06.1956 and under
the Deed of Settlement also, certain amount is being given to
minor daughters i.e. about a sum of Rs.20,000 and this
Plaintiff ie., 5 ನೇ ಪಾರ್ಟಿ ಮೈನರು ಕು. ಭಾರತಿ ಗಾರ್ಡಿಯನ್
ತಾಯಿ ಶ್ರ ೀಮತಿ ಮನೋಹರಮ್ಮ ಇವರಿಗೆ ಕೊಟ್ಟಿ ರುವ ದಿೇಣಿ ಪತ್ರ
ವಿವರ.” Likewise the 6th party minor daughter Kumari Sundaru
is also given Rs.20,000/- and it is acknowledged by their
mother. Way back in the year 1956, a sum of Rs.20,000/- was
not a meager amount and as per the partition deed dated
30.06.1956, this very said amount along with the division of
properties, the shares of the minor Plaintiff and other
unmarried daughters was effected to an extent of 1/17th
share. Certain amounts were given even under the partition
deed dated 30.06.1956. So also in the present Deed of
Settlement a sum of Rs.20,000/- is specifically given and
allotted to the share of the Plaintiff. Therefore, as of that date,
this amount of Rs.20,000/- was not a meager amount and it
was an amount that was calculated by late Siddannaiah to be
the share of Plaintiff. Therefore, way back in the year 1956
itself, the status of the joint family got severed and further the
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status of the joint family also got disrupted and subsequently
also this Plaintiff along with other daughters were given the
share. Thereby, under these issues as well the Defendants
have probabalised of the fact that there was severance of Joint
Family status. Likewise, just like the brothers that is the sons,
this Plaintiff and other unmarried daughters were also given
their portion of share by virtue of the said deed of Partition of
1956 as well as the Deed of Settlement of the year 1958.
Accordingly to Issue No.7 also stands answered in the
affirmative, holding that the Defendants have probabalised the
execution of Supplementary Deed of Partition in the year 1958
and this Plaintiff being given a clear share of Rs.20,000/-
under the said Partition and till date the Plaintiff has enjoyed
the same.
143. It is also pleaded in the written arguments of the
Defendants that the Plaintiff is well off and Plaintiff having
received the said amount has also purchased several
properties in Bangalore including a Petrol Pump. Therefore the
Defendants have discharged their burden under Issue No. 7
effectively. Thereby Issue No.7 needs an Affirmative finding.
It would also be relevant to rely upon the Verdict of Hon’ble
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Apex Court in the case of P. Anjanappa V/s. A.P. Nanjundappa
and others, wherein their Lordships have held as under :-
“Held, a Registered Relinquishment Deed releasing
share of a co-parcener in the Joint Family Property
operates immediately regardless of its implementation”.
144. In the case in hand, there are Registered deeds of
partition, which were evident of severance of status and also
they acted as a proof of independent management of the
properties by Siddannaiah.
145. Per contra, the Plaintiff, in counter to the said objections
raised by the Defendant, the Plaintiff has contended that the said
partitions were not at all acted upon and only for the purpose of
the convenience of submitting the income tax returns pertaining
to the properties, the said deeds were created. Therefore, the
Plaintiff is aware of the said deeds which were executed by late
Siddannaiah including the partition deed of the year 1956. But,
in the light of the said contention, the moment, a denial of the
Plaintiff’s share for partition, the Plaintiff gets a cause of action to
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O.S.No.4166/1995
the suit. And in the present case, based upon the facts and
circumstances and the oral evidence and the documentary
evidence, no doubt the Plaintiff has attained her majority long
back and that she was also aware of the deed that is the
Partition Deed and the deeds that were taken place. But, as the
Plaintiff continued to be in possession of the present property
that is one of the items that is Item No.1 of C-schedule where
the Plaintiff has been resigning since the last 22 years from the
date of filing the suit, on the presumtion that she continues to be
the joint family member and that the property that was enjoyed
by her was given to her as a joint family member. Therefore, the
denial came to her knowledge only in the year 1995. Therefore,
rightly the Plaintiff has filed the suit in the year 1995 by securing
the relevant documents. Therefore, the contention raised by the
Defendants. Therefore, the suit of the Plaintiff is within the
period of limitation. Accordingly, the additional issues are
answered in the negative holding that the suit is within time.
146. The Defendants have also relied upon a citation
recorded in AIR 1960 Calcutta, page 381, in the case of Vigar,
Varathosh v/s Nyanendra and Rosh. Wherein their Lordships
have held as under :-
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(B) Hindu law Partition : Re-opening of Partition
including stranger’s property Partition is not invalid and
can be reopened only on equitable grounds Allottee co-
sharer of stranger’s property disposing of his share Co-
sharer is not entitled to claim compensation or
repartition.”
147. The said Verdict is applicable to the case in hand for the
reasons that Plaintiff is intending to plead as against a
registered document. The Plaintiff throughout her suit has
canvassed that the Suit Schedule Properties are joint family
properties. Though there was a registered Deed of Partition of
the year 1956 and 1958 a Deed of Settlement, yet the Plaintiff
has pleaded throughout her case with regard to the Joint
Family status of the Suit Schedule Properties. But for her oral
assertion there is no document to show that the said partition
effected as on 30.06.1956 was not acted upon or there was
inspite of severance of status, the joint family continued and
both the Plaintiffs and the Defendants and even Siddannaiah
had contributed or created or blended the properties and
incomes even after the severance of joint family by way of
lending or these Defendants had pooled the amount or income
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O.S.No.4166/1995
into a common hotchpot. Therefore, the Plaintiff cannot reopen
a registered partition which has come into effect in the year
1956 and the same was not challenged by the Plaintiff until
1995 and even in the present suit the Plaintiff has not
challenged the said partition. She only pleads against the
Registered document of Partition Deed.
148. Further Defendants are also relied upon on the citation
in the case of GNR, Babu Vs. B.C. Muthappa and others
reported AIR 2022 SC Code 4213. The Defendants have also
relied upon another citation in the case of Koshy Abraham Vs.
B.K. Jayalakshmi and others, wherein their Lordships have
held as under :-
“Held, partition was effected on 1.6.1994 Such being
case, Section 6(5) would come into operation and even
on this account, plaintiff cannot claim right over property
– When ex-facie it can be seen that plaintiff does not
have right to file suit for partition since very right does
not ensure to her benefit, no purpose served in
continuing suit – When on basis of averments made in
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O.S.No.4166/1995plaint itself suit appears to be barred or suit is barred by
law, continuation of said suit would be abuse of process
of Court Plaint, in that circumstances is required to be
rejected since ex-facie it is clear that suit could not have
been filed as same is contrary to law Plaint can be
rejected on ground that partition was effected prior to
20th day of December, 2004-Application under Order 7
Rule 11(a) and [d] read with Order 12 Rule 6 read with
Section 151 of CPC allowed.”
149. In the case in hand, in view of the amendment to
Section 6 of the Hindu Succession Act, the Defendants have
relied upon the above citation.
150. Further, the Defendants have also relied upon another
citation in RFA 4212/2013 in the case of Smt. Shakunthala and
others Vs.Basavaraj and others, wherein their Lordships have
held as under :-
“As stated above, after coming into force of the Hindu
Succession Act, 1956, self acquired or separate property
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O.S.No.4166/1995of a male Hindu, on his dying intestate, devolves on his
heirs in their individual capacity and not as coparcenary
property, and in such a case, their children will not
acquire any right by birth in such property.”
151. In the case in hand as well, the property held in the
hands of late Siddannaiah, Defendant No. 1 & 2, was their
individual property. In their individual capacity they have held
the said property in their individual capacity and Siddannaiah
in his individual capacity having acquired the said property as
a separate property and exercised all rights of ownership.
152. Additional Issue dated 06.12.2013 & Additional Issue
dated 12.01.2024 : These issues are in relation to suit being
barred by limitation. The Plaintiff B.S. Bharathi has maintained
the present suit in respect of the items Nos.A to D, based upon
the cause of action that is said to have arisen on 23-06-1995
when the Defendants evaded to give possession of 1/7th share
of the Plaintiff of the Suit Schedule Property. In this regard,
Plaintiff has reiterated these aspects in her examination-in-chief
and has produced Ex.P1 to P29 documents, In this regard the
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O.S.No.4166/1995
Plaintiff has placed Ex.P21, whereby the present Plaintiff has
addressed a letter to the members of Income Tax Appropriate
Authority Bengaluru, contending that on 20.06.1995, three
officers of the income tax department had visited her house and
intended to inspect it in connection with the proposed sale of the
house by her brother, B.S. Mallikarjun to someone to enable her
brother and the purchaser to have filed an application under 37
seeking NOC from the income tax department and has
contended that the houses are joint family property belonging to
the family members of Late Siddannaiah and other family
members and that she has been residing since 22 years in the
said property. Therefore, the Plaintiff claims the cause of action
to the said suit, when the officials from the income tax
department on 20.06.1995 visited her house for inspection to
facilitate a sale that was to take place in between B.S.
Mallikarjun and other proposed vendors. And it is this date
which the Plaintiff reckons for the cause of action to the suit.
153. The Learned Counsel for the Defendants has relied upon
the citation reported in the case of Koshy Abraham Vs. Smt. B.K.
Jayalakshmi and others, and the contention of the Defendants is
that, as of 1967 the Plaintiff is said to have attained majority and
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O.S.No.4166/1995
from the said date the Plaintiff should have filed the suit within 3
years and therefore contended that the suit is barred by
limitation.
154. On the other hand, the Plaintiff contends that the cause of
action to the suit came to her knowledge only 23.06.1995 when
the Defendants actually refused to give her share in the Suit
Schedule Property.
155. Per contra, the contention of the Defendants is that, the
suit of the Plaintiff is barred by limitation since the Plaintiff was
aware of the partitions. The Defendants contention is that, the
Plaintiff had obtained the certified copies of the documents way
back in the year 1980. Therefore, the Plaintiff was aware of the
said division of the property and therefore the Plaintiff had also
attained majority long back and in order to set aside the said
deeds of Partition of 1956 the Plaintiff should have filed suit
within the period of 3 years from the date of Plaintiff having
attained the majority. But in the case in hand, the cause of action
as pleaded by the Plaintiff is dated 23.06.1995 only when the
Plaintiff came to know that the Plaintiff was denied with the
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O.S.No.4166/1995
share in the property. Therefore based upon the cause of action
as alleged by the Plaintiff, as on 23.06.1995, the Plaintiff for the
first time came to know of the fact that she is not given a share
in the property or she is denied of the share in the suit property
by the present Defendants. As such, she has approached this
court seeking for partition. Therefore, based upon the alleged
date of cause of action, the suit is within time
156. Issue Nos. 8 : Issue No.8 is the Issue in relation to the
right of a married woman. It is relevant to look to the Objects and
Reasons for the Hindu Succession Act 1956 being amended in
the year 2005. Amendment Act 39 of 2005-Statement of Objects
and Reasons The Hindu Succession Act, 1956 has amended
and codified the law relating to intestate succession among
Hindus, which is culled out for brevity :-
“The Act brought about changes in the law of succession
among Hindus and gave rights. Which were till then
unknown in relation to women’s property. However, it does
not interfere with the special rights of those who are
members of Hindu Mitakshara coparcenary except to
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O.S.No.4166/1995provide rules for devolution of the interest of a deceased
male in certain cases. The Act lays down a uniform and
comprehensive system of inheritance and applies, inter
alia, to persons governed by the Mitakshara and
Dayabhaga schools and also to those governed previously
by the Murumakkattayam, Aliyasantana and Nambudri
laws.”
157. Further the very crucial Object is culled out hereunder
from the enactment itself as under :-
“Section 6 of the Act deals with devolution of interest of a
male Hindu in coparcenary property and recognizes the
rule of devolution by survivorship among the members of
the coparcenary. The retention of the Mitakshara
coparcenary property without including the females in it
means that the females cannot inherit in ancestral
property as their male counter-parts do. The law by
excluding the daughter from participating in the
coparcenary ownership not only contributes to her
discrimination on the ground of gender but also has led to
162
O.S.No.4166/1995oppression and negation of her fundamental right of
equality guaranteed by the Constitution, having regard to
the need to render social justice to women, the States of
Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra
have made necessary changes in the law giving equal
right to daughters in Hindu Mitakshara coparcenary
property.”
“It is proposed to remove the discrimination as contained
in Section 6 of the Hindu Succession Act, 1956, by
giving equal rights to daughters in Hindu Mithakshara
co-parcenery Property as the sons have.”
158. In the case in hand as well, the Section 6 is being
amended to incorporate and to include and to thereby give
equal status to the daughter of a co-parcener in respect of the
co-parecenery property. Issue No. 8 is casted upon the
Defendant to prove that as the Plaintiff was married prior to
1990, she has no right to demand share in any properties. It is
also crucial to note that even before the Plaintiff was married
that is as a minor and as an unmarried daughter itself under
Partition Deed of the year 1956 that is 30.06.1956 and
30.05.1958 this Plaintiff was given her share and therefore the
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O.S.No.4166/1995
status of the Plaintiff as on the date of the suit was a married
daughter and therefore, the Plaintiff would not have sought the
right for partition as she is married prior to 1990 and her
genealogy would merge with the genealogy of her husband.
So therefore, to that extent, Issue No. 8 needs an affirmative
finding.
159. Issue No.10 : So far as Issue No.10 is concerned ie.
Plaintiff’s entitlement to the relief is concerned, it is crucial to
note that the Plaintiff has maintained the present suit in
respect of A to D-schedule properties. It is also crucial to note
that there are several deeds executed in between Siddannaiah
and his family members ie., his sons and wife and there are
several deeds which have come into existence and the Plaintiff
has not challenged those deeds for the reasons that the said
deeds were not acted upon. It is crucial to note that the family
continued to be in jointness. The very book that is relied by the
Defendants which speaks about the glorious period of
‘Rasthemane Mallegowda”. The intention of Siddannaiah, the
propositor of the family of the Plaintiff and the Defendants
herein in getting the deeds executed and registering the same
is appropriately described by DW.1 in his Cross-examination,
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O.S.No.4166/1995
wherein the said aspect is discussed under the reasons
assigned in Issue Nos.3 to 7, whereby DW.1 in his Cross-
examination has stated that, in order to keep the Property
intact and also for the reason that Siddannaiah was suffering
from Diabetes and that his second wife Manahoharamma was
having a child of very tender age of one and a half year old
and as such, in anticipation of some untoward incident may
happen and in order to secure the interest of the minor child
and also his second wife Manoharamma, the said deceased
Siddannaiah was in the habit of executing the deeds. But
rightly or due to insecurities what ever may be the reasons
there was severance of Joint Family status in 1956 itself.
160. The Plaintiff has maintained the present suit for the relief
of Partition & Separate Possession seeking delivery of
possession of 1/7th share in the Suit Schedule Properties.
And further the Plaintiff has also sought a relief claiming that
the transactions that have taken place between the members
of the family is not binding on the Plaintiff herein. In this regard
both Plaintiff and the Defendants have addressed their side of
arguments. By virtue of ocular as well as documentary
evidence, the Defendants have probabalised of the fact in
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O.S.No.4166/1995
clear terms of severance of Joint Family status by virtue of a
registered Partition Deed dated 30.06.1956 itself.
161. Both the counsels for the Plaintiff and the Defendants
have addressed their side of written arguments and also relied
upon the citations. The unreferred citations in the earlier
issues are hereby referred to.
162. Learned Counsel for the Defendants has relied upon the
citation reported in AIR 2024 SC 2360 in the case of Sheikh
Noorul Hassan v/s Nahkpam. The relevancy of the said
citation is not been discussed by the Defendant in their written
arguments.
163. Now moving to the next citation relied by the counsel for
the Defendants ie. AIR 2013 Supreme Court 1078 in the case
of M/s. Gian Chand and Brothers Vs. Rattan Lal @ Rattan
Singh, wherein their Lordships have held as under :-
"Based on entries in books of account and
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O.S.No.4166/1995
acknowledgments Plaintiff examining witnesses Entries
in account books and acknowledgments also proved
without objection – Defendant merely denying
avertments made in plaint – No plea denying his
signatures made in written statement Signatures denied
by defendant only in his examination-in-chief Plaintiff
cannot be non-suited for his failure to examine
handwriting expert to prove signatures Placing burden to
prove signatures on plaintiff, improper Is also against
rules of pleading.”
164. The Defendants have relied upon the above Verdict in
order to substantiate their arguments that Plaintiff has relied
upon the revenue records i.e. mutation register whereby the
names of late Siddannaiah, Defendant No. 1 and Defendant
No. 2 is reflected and it is reflected as if it is a Joint Family
Property. It has got only a presumptive value and that the
Plaintiff has not led any evidence to prove the contents of the
said document.
165. Per contra, countering the case of the Plaintiff, the
167
O.S.No.4166/1995
Defendants have relied upon the Deed of Partition of 1956.
And thereby the Defendants have rebutted the presumption
effectively so far as the presumption available to the revenue
document is concerned.
166. Further the Defendants have also relied upon the Case
Law in the case of Metapalli Lasum Bai Vs. Metapalli Muthaih .
The Defendants rely upon the above citation in relation to the
Registered Will executed by late Siddannaiah. In the instant
case in hand, late Sidhanaiah on acquiring the property to his
share under the registered deed of partition dated 30.06.1956
has enjoyed the said properties to its maximum. He has also
executed a deed of settlement as of 30.05.1958 whereby this
Plaintiff is also given a specific share in the property by way of
a sum of Rs.20,000/-. And further the said late Sidhannaih has
exercised his right of ownership in the respect of the shares
fallen to him and has accordingly executed the Will. And
thereby by virtue of Will and Codicil the said late Siddannaiah
has conveyed the properties that were available to his share
completely without retaining any property to his account or to
his share, out of the share that was fallen to him.
168
O.S.No.4166/1995
167. In another case relied by the Defendants reported in AIR
1995 SC 1728 in the case of Digambar Adhar Patil Vs.
Devram Girdhar Patil, wherein their Lordships have held as
under :-
“The Tribunals below did not advert to the entries in the
Recons of Rights or to the factum of partition, while the
High Court has taken this factor into consideration,
which in our considered view had rightly been taken into
account. The entries in the Record of Rights regarding
the factum of partition is a relevant piece of
documentary evidence in support of the oral evidence
given, by the respondent and his brother to prove the
factum of partition. Even in the evidence of Ram
Chander, the clearly stated that there was a partition but
he could not give the date and year in which the partition
was effected nor the deed of the partition was produced.
Under the Hindu Law, it is not necessary that the
partition should be effected by a registered partition
deed. Even a family arrangement is enough to
effectuate the partition between coparceners and to
confer right to a separate share and enjoyment thereof.
Under those circumstances, when the factum of partition
was evidenced by entries in the Record of Rights, which
was maintained in official course of business, the
correctness thereof was not questioned, it corroborates
the oral evidence given by the brother and lends
169
O.S.No.4166/1995assurance to accept it.”
168. The above citation is relied by the Defendants to counter
the defence put forth by the Plaintiff. Whereby these
Defendants have contented that the property that is Item No.1
of C-schedule property is in possession of the Plaintiff and that
the Defendants had permitted the Plaintiff to reside in the said
premises only on the basis as a tenant and the Plaintiff was
asked to pay monthly rent of Rs.450/- and that the Plaintiff is in
possession of the said property way back in the year 1974-75.
In order to disprove the case of the Plaintiff that she held the
said property as a joint family property, the Defendants have
relied upon this citation. However, there is no oral evidence to
the effect or documentary evidence to the fact that the Plaintiff
was in possession of the said property as a tenant under the
Defendants.
169. The Defendants have also relied upon another citation
reported in 2020 (209) AIC 681 in the case of Priyambda
Sahay & others Vs. Sanjay Kuymar Pandey and others ,
wherein their Lordships have held as under :-
170
O.S.No.4166/1995
“Property – Ancestral Property – Alienation Challenge
against thereto – Maintainability for want of limitation
Article 91 of the Limitation Act, 1908 corresponding to
Article A.A 59 A.A of the Limitation Act, 1963 – Sale deed
executed by a sole surviving coparcener Deed favouring
D1 and D2 alleged to be sham for having obtained by
taking advantage of ill medical conditions Subsequent
sale deed executed in favour of Defendant Nos. 3 to 6 –
Plaintiff questioned correctness of original and
subsequent sale deeds declaration declaring deeds a
nullity -Whether the suit was barred in view Article A.A
91 A.A of the old Limitation Act corresponding to Article
A.A 59 A.A of the new Limitation Act? Whether the
property being coparcenary property, could have been
transferred by some coparceners without the consent of
others? Held, the sale deed was voidable and not void
ab initio Admittedly the original plaintiff had instituted a
Title Suit where contesting defendants had appeared
and filed their written statement dismissed for default
and later after restoration was dismissed on contest in
1963 Present fresh suit was instituted thereafter
171
O.S.No.4166/1995claiming said date as giving fresh cause of action to file
the suit Date of dismissal of previous suit cannot be said
to give rise to any fresh cause of action to file the suit by
the time subsequent suit was filed, period of limitation
with respect to sale-deed in question had already
expired – Lower Appellate court rightly treated it as a
voidable instrument and accordingly applied Section A,A
91 A,A of the Limitation Act, 1908 – Suit thus was barred
by limitation under Section A,A 91 A,A of the Limitation
Act, 1908 Property being coparcenary property could not
have been transferred by one coparcener without the
consent of other-Appeal is dismissed.”
170. The above citation is with regard to Limitation Act.
which is discussed earlier in Additional Issue No. 1.
171. The Defendants have also relied upon the provisions of
Section 19, whereby “When consent to an agreement is
caused by coercion, fraud or misrepresentation, the
agreement is a contract voidable as the option of the party
whose consent was so caused.”
172
O.S.No.4166/1995
172. In the case in hand, there is no pleading of Plaintiff with
regard to any misrepresentation or coercion or fraud caused
upon her. Therefore, this provision may be of less assistance
or relevancy to the case in hand.
173. The Defendants have also relied upon the citation in T.
Vijendradas and Others. Vs. M. Subramanian and Others .
Wherein their Lordships have held as under :-
“Purpose of impleadment of a necessary party is to see
as to whether without it no order can be made
effectively.”
174. In the case in hand as well the Plaintiff has not
impleaded the purchasers under Exhibits P.61 to 63. Though
the Plaintiff is aware of the fact that there was an alienation of
the property in favour of Valliammai and others, this Plaintiff
has not attempted to implead them in the suit though a
defence was raised in the written statement of the Defendants,
the purchasers are not being included in the present suit. That
apart, The Plaintiff has also not included the cousins of late
173
O.S.No.4166/1995
Siddannaiah or Basavanna or Somappa for the reason that it
was the junior paternal uncle of the Plaintiff who was allotted
with the property at RMV Extension and the said property was
acquired and subsequently 12 sites were allotted by the then
CITB in favour of Defendants 1 and 2. The Plaintiff has not
included her junior paternal uncle. For the said purpose also
the suit of the Plaintiff being one for partition and separate
possession, without impeding the cousins / brothers of late
Siddannaiah or the purchasers, the suit is bad for non-joinder
of necessary parties.”
175. The Defendants have relied upon the Verdict of Hon’ble
Apex Court in the case of Vineeta Sharma v/s Rakesh Sharma
and others. Wherein their Lordships have held as under :-
“Before 20.12.2004, the date on which the Bill was
presented in the Rajya Sabha, shall not be invalidated.
Under the amended S.6, since the right is given by birth,
that is an antecedent event, and the provisions operate
concerning claiming rights on and from the date of
Amendment Act. Considering the principle of
coparcenary that a person is conferred the rights in the
Mitakshara coparcenary by birth, similarly, the daughter
174
O.S.No.4166/1995has been recognised and treated as a coparcener, with
equal rights and liabilities as of that of a son. The
expression used in S.6 is that she becomes coparcener
in the same manner as a son. By adoption also, the
status of coparcener can be conferred. The concept of
uncodified Hindu law of unobstructed.”
176. The Defendants have relied upon the said Verdict of the
Hon’ble Apex Court, with regard to the latest position of law
and also to dispose off the pending suits for partition within six
months in case filed by daughters and also. In the case in
hand, no doubt, the Plaintiff being the daughter would acquire
equal status in case of co-parcenery property under Section 6.
Whereas in the instant case, it is very crucial and very clear
case of the Defendants that there was severance of Joint
Family status by virtue of Partition Deed dated 30.06.1956,
thereby there was a severance of status and therefore the
case of the Plaintiff would fall under the proviso to Section 6 of
the Enactment of the Amended Act, for brevity, the same is
hereby culled out :-
“Devolution of interest in coparcenary property – On and
from the commencement of the Hindu Succession
(Amendment) Act, 2005, in a Joint Hindu family
governed by the Mitakshara law, the daughter of a
coparcener shall,-
175
O.S.No.4166/1995
(a) by birth become a coparcener in her own right in the
same manner as the son;
(b) have the same rights in the coparcenary property as
she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a daughter of
a coparcener:
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property
which had taken place before the 20th day of December,
2004″
177. Admittedly the Registered deeds in the family of the
Plaintiff and Defendants have taken place prior to 20/12/2004,
that is as on 30.06.1956 and subsequently also in the year
1958 for this limited extent the provisions of Section 6 is
looked into and not with regard to stats of Plaintiff as a co-
parcener.
178. In view of this proviso, the partition by way of a
registered document having taken place as on 30.06.1956, the
176
O.S.No.4166/1995
Plaintiff has no share in the Suit Schedule Properties ie., Suit
Schedule A to D properties. Therefore, the position of law is
very clearly laid down in the above case of the Plaintiff and the
cases falls under the proviso to Section 6 of the Amended Act.
Therefore, the Plaintiff is not entitled for any share in the Suit
Schedule Properties on the ground of properties being Joint
Family properties. Under Issue No.2 Plaintiff has also failed to
prove that deeds for the period 1956 to 1980 are also by
Siddannaiah were sham and nominal. Per contra, the
Defendants under Issue No.3 to 7 have placed sufficient
cogent evidence to show the severance of status. Thereby the
Plaintiff has failed to prove issue No.1 and 2.
179. But however before parting with the judgment of the
case in hand, it is admitted by the Defendants that the Plaintiff
is been in possession of Item No.1 of C-schedule property as
of 1974-75. The Defendants 1 and 2 or their legal heirs may
consider the said possession of the Plaintiff in respect of the
said item only and be treated with Magnanimously and permit
to retain her possession. And also on going through Exhibit
D1 both Rastemane Mallegpwda and his children have done
tremendous work towards the Society and also towards the
177
O.S.No.4166/1995
upliftment of their family. One of the recitals in the said Ex.D1
inspires to note this following observations. “ಹಂಚಿ ತಿಂದವ
ಸುಖಿ” So therefore, it would be disheartening to throw a
married daughter outside the house in which she has been
residing ever since 1974 and as admitted in the arguments
itself by the Defendants, she has been in possession for 22
years prior to the date of the suit and 30 years during the suit.
Therefore for nearly 52 years the Plaintiff has been in
possession of the said item No.1 of the C-schedule property.
Considering her long possession for 50 plus years, the
Defendants by way of magnanimity may continue her
possession or not to disturb her possession in respect of Item
No. 1 of C-schedule only.
180. It is also crucial to note that the Plaintiff must have got
her share in the properties from B.Siddannaiah. Had the
present amended provision of enactment was seen its day
during the lifetime of Siddannaiah, definitely Siddannaiah
would have given some share to his daughters as well in the
immovable property. The Plaintiff has been contesting the
case ever since 1995. Therefore, without prejudice to the
Defendant’s interest in any manner, the Defendants may
178
O.S.No.4166/1995
consider the possession of the Plaintiff only in respect of the
said Item No.1 of C-schedule Properties, just like the
Defendant No. 5 being given one portion in the properties that
were standing in the name of Defendant No.1 & 2, in item No.3
of C-schedule Property, likewise the Plaintiff may also be
considered in a magnanimous manner. With this observation, I
hold that, the Plaintiff is not entitled for relief sought for also
on the ground that the Plaintiff has not challenged the Deeds
that is executed by the late Siddannaiah and his family
members that is Defendants herein in respect of A to D-
Schedule properties right from the year 1956 till date.
Therefore for the said reason also, the Plaintiff has to fail in the
present suit. But this Court being a Court of equity and also if
on the basis of this decree, the Plaintiff is disposed, then the
object of the Amended Act 2005, to give equal status to female
member/daughter will be defeated. Further, this Court is
judiciously conscious of the fact that Plaintiff is in possession
of Item No.1 of C-schedule Property, therefore, if law can
protect a trespasser, why cannot the daughter who is in
possession of the said Property for 50 years. Therefore,
moulding the relief to an equitable relief of Permanent
Injunction, the Defendants or any persons claiming under
179
O.S.No.4166/1995
them are hereby restrained from interfering with the Plaintiff’s
peaceful possession and enjoyment of the suit schedule Item
No.1 of C-Schedule Property, by way of Permanent Injunction.
The Defendants shall not dispossess the Plaintiff from the
above Property without due process of law.
181. Therefore, in conclusion, under Issue No. 1, the Plaintiff
failed to prove that the Suit Schedule Properties are the Joint
Family properties for the reasons that there was severance of
Joint Family status by virtue of a registered Deed of Partition
dated 30.06.1956. Thereby, once a partition is always a
partition. Further under Issue No. 2, Plaintiff also failed to
prove the deeds effected by Siddannaiah were sham
documents. On the other hand the Defendants have
probabalised that on severance of Joint Family basis, late
Siddannaiah enjoyed all the properties as his separate
properties and effected deeds to his satisfaction by executing
deeds like Partition Deeds, Sale Deeds, Will & Codicil.
Therefore, Siddannaiah left no property to be divided as on the
date of the death of Siddannaiah, much less was as on the
date of the suit. Thereby, under Issue No. 4 to 7, the
Defendants have probabalized their case of Siddannaiah
180
O.S.No.4166/1995
having effected partition deed dated 30.06.1956, the Deed of
Settlement and also the Will. Thereby the Plaintiff has failed to
prove right of Plaintiff’s entitlement in the Suit Schedule
Property as there was no Joint Family existing at all. Further,
even under Issue No. 4 to 7, the Defendants have
probabalized the burden casted upon the Defendants that Suit
Schedule Properties were divided and as an absolute owner of
properties fallen to the share of Siddannaiah, he has exercised
all rights of ownership and as separate property and also
established the execution of Will under Issues No. 5 to 7.
Under Issue No. 8, the Defendants have also established the
fact that in view of existence of male issue existing as on the
date of death of Siddannaiah, as a married daughter as well,
the Plaintiff has no share in the Suit Schedule Property,
whatsoever. Therefore, for the aforesaid reason, the suit of the
Plaintiff seeking the relief for partition to an extent of 1/7th
share fails and the last issue is held as “Not entitled”.
182. Issue No.11 : In the light of the above discussion on
Issue Nos.1 to 8, 9 & 10, I proceed to pass the following :-
181
O.S.No.4166/1995
ORDER
The Suit of the Plaintiff seeking the relief of
Partition & Separate Possession to an extent of
1/7th share in the Suit Schedule Properties, is
hereby dismissed with costs.
However, the Defendants or any persons
claiming under Defendants are hereby restrained
from interfering with the Plaintiff’s possession and
enjoyment of the suit schedule Item No.1 of
C-Schedule Property by way of Permanent
Injunction. The Defendants shall not dispossess
the Plaintiff from the above Property, without due
process of law.
Office to draw a decree accordingly.
(Dictated to the Stenographer G-1, computerized by him/her,
corrected and then pronounced by me in the Open Court, on this
the 10th day of July, 2026)(A.M. NALINI KUMARI)
C/c. XXXVIII Addl. City Civil & Sessions Judge,
Bengaluru.
182
O.S.No.4166/1995
ANNEXURE
List of witnesses examined for the Plaintiff’s side:
PW.1 : B. Sadanand PW.1 : B.S. Bharathi PW.2 : B.S. Bharathi PW.3 : B. Sadanand PW.4 : B. Chandrashekar
List of exhibits marked for the Plaintiff’s side:
Ex.P.1 General Power of Attorney
Ex.P.2 to 4 Sale Deeds
Ex.P.5 to 20 Certified copy of Index of lands
Ex.P.21 Office copy of letter dated 22.6.1995
Ex.P.22 & 23 Water supply bills
Ex.P.24 to 26 Electricity bills
Ex.P27 Telephone connection order
Ex.P.28 & 29 Telephone bills
Ex.P.30 Certified Copy of Registered Sale Deed
dated 15.11.1962
Ex.P.31 Certified copy of the M.E.No.71 62-63
Ex.P.32 Sale Deed dated 15.11.1962
Ex.P.33 Certified copy of the Registered Sale Deed
dated 16.11.1962
Ex.P.34 Certified Copy of Registered Sale Deed
dated 03.10.1964
Ex.P.35 Certified Copy of M.E.No.2/64-65
Ex.P.36 Registered Partition Deed dated
15.06.1977
Ex.P.37 Certified Copy of M.E.No.7/77-78
183
O.S.No.4166/1995
Ex.P.38 Certified copy of Registered Sale Deed
dated 15.06.1977 and 77-78
Ex.P.39 Copy of Mutation Register
Ex.P.40 Certified Copy of Registered Sale Deed
dated 15.06.1977
Ex.P.41 Certified Copy of the MR.No.9/77-78
Ex.P.42 Certified Copy of Registered Agreement
dated 15.06.1977
Ex.P.43 Certified Copy of MR.No.13/77-78
Ex.P.44 Certified Copy of Registered Agreement
Ex.P.45 Certified Copy of the MR.No.14/77-78
Ex.P.46 Certified Copy of Registered Release Deed
dated 15.06.1977
Ex.P.47 Certified Copy of M.R.No.9/77-78
Ex.P.48 Certified Copy of Registered Gift Deed
dated 22.06.1977
Ex.P.49 Certified copy of Registered Gift Deed
dated 22.06.1977
Ex.P.50 Certified Copy of MR No.11 and 12/77-78
Ex.P.51 Certified copy of Registered Sale Deed
dated 31.03.1958
Ex.P.52 Certified Copy of letter dated 06.04.1953
Ex.P.53 Certified Copy of letter dated 16.08.1963
Ex.P.54 Certified Copy of letter dated 23.04.1964
Ex.P.55 Certified Copy of letter dated 28.07.1964
Ex.P.56 Certified Copy of letter dated 9.12.1964
Ex.P.57 Certified Copy of letter to CITB
Ex.P.58 Certified Copy of Registered Sale Deed
dated 6.7.1995
Ex.P.59 Certified Copy of the order in HRRP
111/1999 C/W. HRRP 657/1999
184
O.S.No.4166/1995Ex.P.60 Certified Copy of Registered Sale Deed
dated 9.10.1972
Ex.P.61 Certified Copy of Sale Deed dated
12.03.1980
Ex.P.62 Certified Copy of Sale Deed dated
12.03.1980
Ex.P.63 Certified Copy of Sale Deed dated
12.03.1980
Ex.P.64 Certified Copy of Registered Sale Deed
dated 26.03.1964
Ex.P.65 Certified Copy of M.R.No.1/1954-55
Ex.P.66 Certified Copy of Revocation of Settlement
Deed dated 22.12.1966List of witnesses examined on behalf of Defendants’ side:
DW.1 : B.D. Prabhu Shankar DW.2 : B.M. Devappa
List of exhibits marked on behalf of the Defendants’ side:
Ex.D.1 Book on Rasthemane Mallegowda’s family
(Printed)
Ex.D.1a Page No.46 of Ex.D1 (G.tree)
Ex.D.1b Page No.120 of Ex.D1 (Photo of Plaintiff
and her husband)
Ex.D.2 Certified Copy of Partition Deed
dated 30.06.1956
Ex.D.3 Copy of Supplementary Partition Deed dated
30.05.1958
Ex.D.4 Will dated 30.01.1980
Ex.D.4 a to d Relevant portions of Ex.D4
185
O.S.No.4166/1995Ex.D.5 Letter dated 06.08.1980
Ex.D.5a to k Relevant portion of Ex.D5
Ex.D.6 Agreement
Ex.D.7 Agreement
Ex.D.8 Agreement
Ex.D8(a to e) Signatures of DW.3 and DW.4
Ex.D.9 Certified Copy of Document dated
29.10.1956
Ex.D.10 Certified Copy of cancellation of charge
dated 04.06.1958 (with typed copy)
Ex.D.11 Certified Copy of plaint in O.S.No. 523/1983
Ex.D.11 Certified Copy of the Partition Deed dated
16.10.1932
Ex.D.11a Typed copy of Partition Deed dated
16.10.1932
Ex.D.12 Certified Copy of deposition in O.S.No.
523/1983
Ex.D.12 Certified copy of Partition Deed dated
29.03.1970
Ex.D.12a Typed copy of the Partition Deed dated
29.03.1970
Ex.D.13 Bank letter
Ex.D.14 to 21 Challans for payment of income tax paid by
Defendant No.1
Ex.D.22 to 24 Challans for payment of income tax paid by
Defendant No.7
Ex.D.25 to 29 Challans for payment of wealth tax
Ex.D.30 to 32 Assessment orders
Ex.D.33 Form A
Ex.D.34 Duplicate Sale Deed dated 13.02.1981
Ex.D.35 Bank letter dated 24.10.1998
186
O.S.No.4166/1995Ex.D.36 Share Certificate
Ex.D.37 Share Certificate
Ex.D.38 Ledger book for the year 1956-57
Ex.D.38 a to l Relevant portions of Ex.D38
Ex.D.39 Ledger book for the year 1957-58
Ex.D.39 a to u Relevant portions of Ex.D39
Ex.D.40 Certified copy of Sale Deed dated
19.02.1955
Ex.D.40 a Typed copy of Ex.D40(A.M. NALINI KUMARI)
C/c. XXXVIII Addl. City Civil & Sessions Judge,
Bengaluru.
