Bangalore District Court
G Geetha vs Seethalakshmi on 10 January, 2025
KABC0A0039252012
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri. Sreepada N
B.Com., L.L.M.,
LXXII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 10th day of January 2025.
O.S.No.26348/2012
Plaintiffs:- 1. Smt. G. Geetha,
W/o Late M. Gangadhara,
Since dead by LR
1(a) N.G. Shivaprasad,
S/o Late M. Gangadhara,
Aged about 40 years,
No.47, Near Muniyappa Temple,
Jyothinagar, Vajarahalli Road,
Kasaba Hobli, Nelamangala,
Bengaluru Rural Dist.
2 O.S.No.26348/2012
2. S.G. Srinivasamurthy,
S/o S. Gopal Rao,
Aged about 64 years,
R/at No.919/2A/86, 5th Cross,
K.B. Extension,
Davanagaere-577 002.
(P.2 - Abated as per order 5.12.2023)
[By Sri. Parashuram R.
Hattarakihal - Adv., for P.1]
V/s
Defendants:- 1. Smt. Seethalakshmi,
W/o P.R. Nagamohan,
Aged about 66 years,
R/at No.824/40, 18th Main Road,
37th Cross, 4th 'T" Block,
Jayanagara,
Bengaluru.
2. Smt. G. Nagarathna,
W/o C.N. Nagabhushan,
R/at No. M.I.E 103/15-1,
12th Main, Hanumanthanagar,
Bengaluru-560 050.
3. G. Subramanya,
S/o Late Gopal Rao S,
Aged about 58 years,
R/at No.45, Surveyor Street,
Basavanagudi,
Bengaluru.
4. Smt. G. Sumithra,
W/o K. Guruprasad,
Aged about 56 years,
3 O.S.No.26348/2012
R/at No.703/4, 73rd Cross,
6th Block, Rajajinagara,
Bengaluru-10.
5. Smt. G. Ramamani,
W/o Sujana Singh,
Aged about 54 years,
R/at Plot No.B-703,
Poorva Bellmount Apartment,
Kanakapura Road,
J.P.Nagar 6th Phase,
Bengaluru.
6. Smt. G. Usha,
W/o Prakash,
Aged about 52 years,
R/at No.284/40, 18th Main Road,
37th Cross, 4th 'T' Block,
Jayanagara,
Bengaluru.
[By Sri. P.R. Muralidhar Adv., for D.1,
Sri. Shyam Sunder Bajpekar Adv.,
for D.2, Sri. B.N. Anantha Narayana
Adv., for D.3 & 5, D.4 & 6 - Ex-parte]
Date of Institution of the suit 9.7.2012
Nature of the (Suit or pro-note,
suit for declaration and
possession, suit for Partition Suit
injunction, etc.)
Date of the commencement of 11.7.2022
recording of the Evidence.
Date on which the Judgment 10.1.2025
was pronounced.
4 O.S.No.26348/2012
Total duration Year/s Month/s Day/s
12 06 01
LXXII ADDL. CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is by the Plaintiffs against the
Defendants for partition and separate possession of
their 2/8th share in the Suit Schedule ‘A’ & ‘B’
Properties by metes and bounds and put the Plaintiffs
in possession of their respective share, if the
Defendants failed to do so, this Court pleased to
appoint the Court Commissioner to make partition and
put the Plaintiffs in possession in respect of their
respective shares by metes and bounds and to
declare the registered Release Deed dtd: 1.4.1998
executed by the wife of 3rd Defendant in favour of 3rd
Defendant is not binding on the Plaintiffs share in the
Suit Schedule ‘A’ Property based on the forged
General Power of Attorney dtd: 4.2.1998 and for other
consequential reliefs.
5 O.S.No.26348/2012
2. The epitome of the case of the Plaintiffs is as
follows:
It is stated that the Plaintiffs and Defendants
are the children of Late Gopal Rao and they have
constituted a Hindu undivided joint family. The father
of the Plaintiffs had filed a suit in O.S.No.125/1965
seeking partition and separate possession against
one J.S. Vasudevaiah S/o Subbaiah, Ramachandra
Rao S/o Seetharamaiah for his 1/6th share in respect
of Item No.1 to 5 immovable and movable properties
as stated therein. Thereafter, the father of the
Plaintiffs and Defendants in the said suit had entered
into compromise and the matter was settled by virtue
of preliminary decree dtd: 5.12.1996. Thereafter, they
have entered into a Family Arrangement on
10.11.1983 and the Suit Schedule ‘A’ Property was
bifurcated into 03 portions and allotted to one Smt.
Lalitha Rao W/o Late S. Ramachandra Rao, second
part allotted to S. Gopal Roa and the third portion
allotted to S. Sreekantha Rao. The Item No.1 property
i.e., Suit Schedule ‘A’ Property was exclusively fallen
to the share of Plaintiffs father and Defendant No.2 &
3 therein. Thereafter, on 13.3.1984 the father of the
6 O.S.No.26348/2012
Plaintiffs S. Gopala Rao died and subsequently on
22.2.2011 the mother of the Plaintiffs and Defendants
died leaving behind them to succeed their estate.
After the death of parent, they became joint owners in
possession and enjoyment of the Suit Schedule ‘A’
Property. It is stated that the wife of 3 rd Defendant by
name H.S. Ramamani has created a General Power of
Attorney on 14.2.1998 by forging the signature of the
Plaintiffs to deprive the legitimate share of the
Plaintiffs in the Suit Schedule ‘A’ Property by showing
false address of the Plaintiffs in the GPA and
immediately she has executed Release Deed in favour
of the 3rd Defendant on 1.4.1998. Further, it is stated
that the mother of the Plaintiffs by name P.
Susheelamma has acquired the property bearing
Sy.No.178/1 measuring 01 Acre 16 Guntas including
03 Guntas Kharab land situated at Ramapura @
Akkirampura Village, Holavanahalli Hobli, Koratagere
Taluk, Tumkur District i.e., the Suit Schedule ‘B’
Property by virtue of Gift Deed dtd: 6.2.1946 from her
father by name P. Seetharamaiah. The Plaintiffs and
Defendants are the co-parceners and the Suit
Schedule Properties are the joint family properties and
they are having equal share over the Suit Schedule
7 O.S.No.26348/2012
Property. After the death of their mother, the Plaintiffs
have demanded their in the Suit Schedule Properties,
the Defendants postpone the same by one or the other
pretext. The Plaintiffs came to know that the Suit
Schedule ‘A’ Property was transferred in the name of
3rd Defendant. Thereafter, the Plaintiffs applied for
Khata Extract and the same discloses that the Suit
Schedule ‘A’ Property stands in the name of 3 rd
Defendant. Thereafter, on 5.4.2012 again the
Plaintiffs demanded their share in the Suit Schedule
Properties, but the 3rd Defendant has given a vague
reply to the Plaintiffs that the Plaintiffs have no any
right, title and interest over the Suit Schedule
Properties. After seeing the attitude of the Defendants,
the Plaintiffs have no other alternative and efficacious
remedy except to approach this Court. Hence, prayed
to decree the suit.
3. Pursuant to summons, the Defendant No.1 to
3 & 5 have entered appearance and filed their
separate written statement. The Defendant No.4 & 6
have remained absent, hence, they placed ex-parte.
8 O.S.No.26348/2012
4. The Defendant No.1 in her written statement
specially denied the plaint averments and contended
that the suit of the Plaintiffs is not maintainable either
in law or on facts and same deserves to be dismissed
with exemplary cost. The Plaintiffs have not
approached the Court with clean hands and they
have deliberately with malafide intention to harass
the 3rd Defendant, have suppressed the real and
material facts, while filing this suit. Hence, the suit
filed by the Plaintiffs is liable to be dismissed. The
suit filed by the Plaintiffs is false, frivolous, vexatious
and totally misconceived and it is filled with oblique
motive. Hence, the suit is not maintainable. The suit is
not maintainable for non-joinder of necessary party. It
is stated that one Mr. Manjunath the legal heirs of
Late S. Gopal Rao is left out and he is not arrayed as
one of the necessary party to this suit. The family tree
produced by the Plaintiffs in the above said suit is
incomplete. Hence, the suit is not maintainable.
5. Further this Defendant has admitted all the
plaint averments, except contending that the 3 rd
Defendant has left his job in HAL Nasik in 1983 to
looking after his parents. He rejected many good
9 O.S.No.26348/2012
offers outside Bangalore. The other aspect was his
emotional commitment of honoring the promise he has
made to his father on the death bed to take care of
the mother and to fulfill his dreams of building a new
house on the said property of measuring 647.5 sq.ft.
After the death of his father, the Defendant No.3 has
look after his mother solely took all the financial
expenses which was inclusive of hospital and funeral
expenses by borrowing some money through loans. It
is further contended that the old house of their father
was the tiled house covered a plinth area of about
416 sq.ft., and the property was old construction built
of mud, bricks and tiles. The tiles were broken in the
roofs and when it became impossible to life the roof
was replaced by RCC Roof by keeping the walls as it
is. The open toilets were included in the main
building. The plinth area of the building was about
460 sq.ft. The common passage and road entry
passage were muddy and not in level. There was
open drainage for rainy water passage from open
space and road entry passage. The said old house
was very small not having properly planned
ventilation and was in deteriorated condition and no
other members of the family were not ready to stay
10 O.S.No.26348/2012
more than one day in the house. Hence, the release
deed executed by the power of attorney of all the
Plaintiffs and Defendants herein is true and correct.
All the members of the family were aware of the
release deed which was executed in the office of the
Sub-Registrar, Basavanagudi, Bangalore. Every
member of the family were aware about the mortgage
of the property by the third Defendant to avail loan for
constructing the house on the property which was
released by all the parties. This Defendant admits
about executing General Power of Attorney in favour
of the wife of 3rd Defendant. The Plaintiffs and
Defendants have voluntarily, willfully without any
coercion or pressure from anybody. Further, it is
stated that the description of the Suit Schedule
Property mentioned in the suit is incorrect and false.
The measurement and boundaries and the dimension
of the Suit Schedule Property is wrong and incorrect.
No such Suit Schedule ‘A’ Property is in existence as
on now as stated by the Plaintiffs in the plaint. It is
stated that the 3rd Defendant is the absolute owner of
the property measuring about 647.5 sq.ft. Hence, the
suit is liable to be dismissed on the ground of sim-
description of the Suit Schedule ‘A’ Property. The suit
11 O.S.No.26348/2012
filed by the Plaintiffs is barred by limitation. The
property of S. Gopal Rao is released in favour of the
third Defendant in the year 1998. This suit is filed
beyond 12 years. Hence, the suit is liable for
dismissal. Hence, prayed to dismiss the suit with
exemplary costs.
6. The Defendant No.2 & 5 in their written
statement admitted the plaint averments and
contended that the demand for partition was not
made to these Defendants as all the Suit Schedule
Properties was under the control of the 3 rd Defendant
who has illegally transferred the same to his name
and never gave any share to these Defendants even
when demanded. The other plaint averments are
specifically denied as false. Hence, prayed to decree
the suit with one share each to the Defendant No.2 &
5 respectively and put them in possession in respect
of their shares so partitioned.
7. The Defendant No.3 in his written statement
specially denied the plaint averments and contended
that in terms of compromise decree passed in
O.S.No.125/1965 the Suit Schedule ‘A’ Property
12 O.S.No.26348/2012
exclusively fell tot he share of Plaintiffs father and his
brothers, the Plaintiffs and Defendants have
succeeded to the estate left behind by their parents,
that the Plaintiffs and the Defendants have become
joint owners in possession and enjoyment of the Suit
Schedule ‘A’ Property, the Plaintiffs are Defendants
are coparceners and that the Suit Schedule Properties
are the joint family properties and they are having
equal share over the Suit Schedule Properties and
when the Plaintiffs demanded for their the
Defendants postpone the same for one or the pretext,
the Plaintiffs immediately after coming to know that
the Suit Schedule ‘A’ Property was transferred in the
name of 3rd Defendant applied and obtained the
khatha extracts from BBMP are all false and
concocted. The Plaintiffs have filed the suit claiming to
be coparceners of the joint family of late S. Gopala
Rao and his brothers S. Ramachandra Rao and S.
Srikanta Rao. The Plaintiffs have not made the heirs
and successors of Late S. Ramachandra Rao and S.
Srikantha Rao as parties to the suit. Late S. Gopal
Rao and his wife Smt. Susheelamma, died leaving
behind three sons and six daughters. The Plaintiffs
have not made the youngest son by name G.
13 O.S.No.26348/2012
Manjunatha as a party to the suit. The suit is not
maintainable for non-joinder of necessary parties. The
Suit Schedule ‘A’ Property was the subject matter of
the partition suit in O.S.No.125/1965 filed by S.
Gopal Rao the father of the Plaintiffs and Defendants.
The Suit Schedule ‘A’ Property came to be allotted in
the said suit to S. Ramachandra Rao, S. Gopala Rao
and S. Srikant Rao, subject to payment of
Rs.18,250/- to their cousin brother J.V. Vasudevaiah.
Pursuant to the decree dtd: 5.12.1966 passed in
O.S.No.125/1965 J.V. Vasudevaiah executed
registered Sale Deed dtd: 12.6.1968 in favour of S.
Ramachandra Rao, S. Gopala Rao and S. Srikant
Rao. The Suit Schedule ‘A’ Property came to be jointly
owned by three brothers. Under the deed of family
arrangement dtd: 10.11.983 between Smt. Lalitha
Rao W/o S. Ramachandra Rao, S. Gopal Rao and S.
Srikant Rao the Suit Schedule ‘A’ Property came to be
partitioned and S. Gopala Rao was allotted portion of
property as per the plan annexed to the Deed of
Family Arrangement dtd: 10.11.1983 delineated by
the letters DJIHF measuring 23’6″ X 24’3″ and 6’2″ X
12’2″. In terms of the partition each of the three
brothers got 774.04 sq.ft., of the land with entrance
14 O.S.No.26348/2012
through common passage from Surveyor Street. The
property was bifurcated as No.45, 45/1, 45/2
respectively and portion No.45 was allotted to the S.
Gopal Rao and the khtah of the property came to be
registered in the name of 3rd Defendant as per the
Affidavit dtd: 13.6.1995 filed by all the heirs and
legal representatives of Late S. Gopal Rao including
the Plaintiffs.
8. Further it is contended that the health
condition of S. Gopala Rao was deteriorating and as
there was no other person to take care of family, he
left his job at HAL Nasik and came down to Bangalore
and joined a start up Company called M/s Sunray
Computers mainly with a view to take care of the
family. The Defendant received lucrative job offers
from Australia in 1989, U.K in 1990 and U.S.A in
1995 and this Defendant rejected all those offers with
a view to take care of his mother, younger sisters and
younger brother. Thereafter, the mother of the 3 rd
Defendant undergone several major health issues and
this Defendant had to spend enormous amount for the
treatment of his mother and for her hospitalization
and medical treatment. This Defendant took loan from
15 O.S.No.26348/2012
several sources and got the tiled roof changed to that
of RCC roof by incurring expenses to the extent of
Rs.2 lakhs. The Defendant was the bread winner of
the family from 1978 and bearing the cost of wedding
of some of his sisters after the expiry of his father and
maintaining the property, paying the taxes payable on
the property. The property No.45 owned by S. Gopal
Rao and members of his family was a small house
and was not possible to be divided into several
shares. All the members of the family wanted that the
property should be given to this Defendant in
recognition of his taking care of the family and the
house. It was decided by all the members of the
family that they would release and relinquish all their
right, title, interest and share in and over the property
No.45 i.e., Suit Schedule ‘A’ Property. Accordingly, the
Plaintiffs, the Defendant No.1, 2, 4 to 6 and Smt.
Susheelamma and Manjunath executed General
Power of Attorney in favour of Smt. H.S. Ramamani on
14.2.1998. The said Power of Attorney made it clear
that Smt. H.S. Ramamani the wife this Defendant
shall executed Release Deed in respect of the Suit
Schedule ‘A’ Property. Pursuant to that, Smt. H.S.
Ramamni representing the Plaintiffs and the other
16 O.S.No.26348/2012
Defendants including mother and Manjunath
executed registered Release Deed dtd: 1.4.1998 in
favour of this Defendant, This Defendant eversince
the Release Deed dtd: 1.4.1998 has been owning and
possessing the property No.45 as the absolute owner
thereof and the Plaintiffs and the remaining
Defendants have ceased to be having any manner of
right or share, interest and possession over the
property. Thereafter, this Defendant constructed new
building on the property No.45 by investing his saving
and by borrowing Rs.7 lakhs from the Visveswaraiah
Co-Operative Bank Ltd., Bangalore got constructed a
residential house by spending Rs.45 lakhs. This
Defendant is the absolute owner of the Suit Schedule
‘A’ Property and the Plaintiffs and other Defendants
have no manner of right, title, interest, share or
possession over the same.
9. Further it is stated that the Suit Schedule
Property is an agricultural land and formed part of
Sy.No.178 of Akkirampura Village, Holavanahalli
Village, Koratagere Taluk, Tumkur District. This land
originally measured 03 Acre 22 Guntas and was
owned by one P. Seetharamaiah S/o Ashwathaiah.
17 O.S.No.26348/2012
An extent of land measuring 01 Acre 02 Guntas in the
said Sy.No.178 came to be gifted by P.
Seetharamaiah in favour of his daughter Smt.
Susheelamma, the mother of the Plaintiffs and the
Defendants. The said gift was subject to the condition
that if shall remain in the family of Smt.
Susheelamma. The Plaintiffs have wrongly described
the Suit Schedule ‘B’ Property as measuring 01 Acre
16 Guntas instead of 01 Acre 02 Guntas in extent.
This Defendant has invested large sums of money
and made the land fertile and has grown Arecanut
plantation and planted valuable trees for long term
benefits. The land was through out in litigation. The
land was subject matter of litigation in LRM.CR
622/75-76 one person by name A.K. Chikkanna S/o
Pillappa had claimed tenancy rights over the land and
the proceedings had to be contested. Later the khatha
of the land which was in the name of the mother had
been got removed and the name of one
Venkataramaiah S/o Aswathaiah had been
incorporated in RRT DS 44/96-97. This Defendant
had to get the appeal filed in RRT (A) 68/02-03 and
get the khatha rectified and restored in the name of
the mother. This Defendant got the land cleared from
18 O.S.No.26348/2012
litigation by spending large sums of money. It was
under these reasons all the members of the family of
Susheelamma were of the view that the land should
be owned by the 3rd Defendant. Without prejudice it is
stated that in case the Suit Schedule ‘B’ Property is
ordered to be partitioned he is entitled for the
improvements made. Further, it is contended that
there is no cause of action for the suit and the cause
of action pleaded is imaginary and non-existing one.
The suit filed by the Plaintiffs is not maintainable in
law and liable to be dismissed. Hence, prayed to
dismiss the suit with exemplary costs.
10. The Defendant No.3 in his additional written
statement specifically denied the contents of amended
plaint and contended the same facts mentioned in his
written statement.
11. The Defendant No.1 filed memo to adopt the
additional written statement filed by the Defendant
No.3 in the above case.
12. Based on the pleadings of the parties, my
leaned predecessor has framed the following issues:
19 O.S.No.26348/2012
1. Whether the Plaintiffs prove that,
the wife of the Defendant No.3 by
name H.S. Ramamani, GPA dtd:
14.2.1998, by forging the signature
of the Plaintiff and executed
Release Deed in favour of the
Defendant No.3 on 1.4.1998 in
respect of Suit Schedule ‘A’
Property, as contended in Para
No.3(b) of the amended suit plaint?
2. Whether the Plaintiffs prove that,
the Suit Schedule Properties are
available for Partition, as on the
date of filing of this suit?
3. Whether the Defendant No.1 proves
that the suit of the Plaintiffs is bad
for non-joinder of necessary party,
as contended by her in Para No.4
of the written statement?
4. Whether the Defendant Nos.1 and
3proves that the Defendant No.3
has developed the Suit Schedule ‘B’
Property and has constructed a
house in the Suit Schedule ‘A’
Property?
20 O.S.No.26348/2012
5. Whether the Plaintiffs and
Defendant Nos.2 & 5 proves that,
they are entitled for the relief of
partition in the Suit Schedule
Properties and to have 1/6th each,
as claimed?
6. Whether the Plaintiffs are entitled
for the relief of declaration as
claimed in Prayer (a)(i) of the Suit
Plaint?
7. What order or decree?
ADDITIONAL ISSUES
1. Whether the Defendant No.3 proves
that, the General Power of Attorney
dtd: 14.2.1998 and the Release
Deed dtd: 1.4.1998 are binding on
the Plaintiffs and Defendant No.1,
2, 4 & 5, as contended in Para
Nos.6 and 7 of his Addl. Written
Statement?
2. Whether the Defendant No.3 proves
that, the Suit filed by the Plaintiffs
claiming the relief of partition and
separate possession, is not
maintainable without seeking the
21 O.S.No.26348/2012
relief of cancellation of Release
Deed dtd: 1.4.1998?
3. Whether the Plaintiffs prove that,
they have property valued the suit
and have paid the Court Fee, on
the Suit Plaint, as required by law?
4. Whether the Defendant No.3 proves
that, the Suit of the Plaintiffs is
barred by Limitation, as contended
by him, in Para No.9 of his Addl.
Written Statement?
13. The Plaintiff No.1(a) got examined as PW.1
and got marked Ex.P.1 to Ex.P.14 and closed his side.
The Defendant No.3 got examined as DW.1 &
Defendant No.1 got examined as DW.2 and got
marked Ex.D.1 to Ex.D.35 documents
14. Heard both sides.
15. On appreciation of the evidence and
documents on record, my findings on the above issues
is as under:
Issue No.1: In the Negative.
Issue No.2: In the Negative.
Issue No.3: In the Affirmative.
22 O.S.No.26348/2012
Issue No.4: In the Affirmative.
Issue No.5: In the Negative.
Issue No.6: In the Negative.
Addl.Issue No.1: In the Affirmative.
Addl.Issue No.2: In the Affirmative.
Addl.Issue No.3: In the Negative.
Addl.Issue No.4: In the Affirmative.
Issue No.7: As per final order for
the following:
REASONS
16. Issue No.1, Addl. Issue Nos.1 & 4:-
Since the above issues are inter related and
finding on one issue is having bearing on the other, in
order to avoid repetition of facts, the above issues
have been taken up together for consideration.
17. It is the specific case of the Plaintiffs is that
they have filed the present suit for the relief of
partition and separate possession of their share over
the Suit Schedule Properties. The Suit Schedule
Properties are the joint family properties of the
Plaintiffs and the Defendants. Earlier the father of the
Plaintiffs had filed a suit in O.S.No.125/1965 seeking
partition of and separate possession against one J.S.
23 O.S.No.26348/2012
Vasudevaiah, Ramachandra Rao and Sreekanth Rao
for his 1/6th share in respect of Item No.1 to 5
immovable and movable properties. The said suit
ended in Compromise Decree. According to the said
Compromise Decree, Item No.1 property i.e., Item No.1
of the present Suit Schedule Properties fallen to the
share of Plaintiffs’ father. On 13.3.1984 the father of
the Plaintiffs died, subsequently on 22.2.2011 the
mother of the Plaintiffs also died. The Suit Schedule
‘A’ Property allotted to one Ramachandra Rao, Gopala
Rao and Sreekantha Rao and their cousin J.V.
Vasudevaiah in O.S.No.125/1965 pursuant to Decree
dtd: 5.12.1966. Thereafter, they have entered into
family arrangement on 10.11.1983 and the Schedule
Property was bifurcated into 03 portions and allotted
one portion to Smt. Lalitha Rao and second portion to
Gopal Rao and third portion to Sreekanthah Rao and
thereafter the revenue records were effected in
respect of Suit Schedule ‘A’ Property. Accordingly the
Suit Schedule ‘A’ Property is allotted to the share of
Gopal Rao. However, the wife of the Defendant No.3
has created General Power of Attorney by forging the
signatures of Plaintiff No.1 to deprive her legitimate
share in the Suit Schedule ‘A’ Property. Even she has
24 O.S.No.26348/2012
not consented and signed on the said Release Deed
dtd: 1.4.1998. The alleged General Power of Attorney
holder cannot relinquish the right of Plaintiff No.1 over
the Suit Schedule ‘A’ Property. Even on the basis of
unregistered General Power of Attorney, the property
cannot be released. The Defendant No.3 also had
played fraud by creating the alleged unregistered
General Power of Attorney, through his wife with ill
intention to grab the Suit Schedule ‘A’ Property. When
the Plaintiffs and Defendants are having equal share
over the Suit Schedule Properties, the Plaintiff No.1 is
also entitle for her share over the Suit Schedule
Properties. During the pendency of this suit, the
Plaintiff No.1 died and her LR is entitle for share in
the Suit Schedule ‘A’ & ‘B’ Properties.
18. It is clear from the pleadings that earlier both
Plaintiffs have simply filed the suit for partition
without saying anything about the alleged General
Power of Attorney or Release Deed, but first time filed
application to amend the plaint and incorporated the
prayer of declaration in the year 2016.
19. The Plaintiff No.1(a) is examined as PW.1
and reiterated the plaint averments in his
25 O.S.No.26348/2012
examination-in-chief. Further in support of his oral
evidence got marked documents at Ex.P.1 to Ex.P.14.
Ex.P.1 is the Genealogical Tree of the family of
deceased Gopal Rao prepared by the Revenue
Inspector as per the instructions of LR of Plaintiff
No.1. Ex.P.2 & Ex.P.3 are the Death Certificates of S.
Gopal Rao & his wife Smt. Sushilamma. Ex.P.4 is the
Mutation Order in respect of Suit Schedule ‘A’ & ‘B’
Properties. Ex.P.5 is the RTC in respect of Suit
Schedule ‘B’ Property. Ex.P.6 is the Khata Extract of
Suit Schedule ‘A’ Property, which is standing in the
name of Defendant No.3. Ex.P.7 is the Endorsement
dtd: 8.7.2022 issued by BBMP in respect of Suit
Schedule ‘A’ Property and admittedly it is standing in
the name of Defendant No.3. Ex.P.8 is the Certified
copy of Release Deed dtd: 1.4.1998 executed by the
wife of Defendant No.3 in favour of Defendant No.3 in
respect of Suit Schedule ‘A’ Property. Ex.P.9 is the
Certified copy of Gift Deed dtd: 6.2.1946 in respect of
Suit Schedule ‘A’ Property. Ex.P.10 & Ex.P.11 are the
02 Mutation Order in respect of Suit Schedule ‘A’ & ‘B’
Properties and after the death of Gopal Rao it is
changed in the name of his wife. Ex.P.12 is the RTC in
respect of Suit Schedule ‘B’ Property which is still
26 O.S.No.26348/2012
standing in the name of wife of deceased Gopal Rao.
Ex.P.13 is the Death Certificate of Plaintiff No.1.
Ex.P.14 is the Death Certificate of daughter of
deceased Plaintiff No.1.
20. This witness has been cross-examined by
the Learned Counsel for the for the Defendants and
during the course of cross-examination he stated that
he is not aware that on 13.6.1995 all the children of
Gopal Rao have executed an affidavit for transfer of
khatha of Suit Schedule ‘A’ Property in the name of 3 rd
Defendant and accordingly the khatha has been
transferred in the name of 3 rd Defendant. Further he
admitted the suggestion that all the children are
aware about the transfer of khatha in the name of
Defendant No.3. Further stated that he does not know
whether the Defendant No.3 is paying tax of Suit
Schedule ‘A’ Property. Further stated that he does not
know since the Defendant No.3 was managing the
family, all the children have decided to give the Suit
Schedule ‘A’ Property to the Defendant No.3. Further
stated that he does not know there was an agreement
between the children of his grand father to execute
Release Deed in favour of Defendant No.3 in respect
27 O.S.No.26348/2012
of the Suit Schedule ‘A’ Property by receiving
Rs.1,00,000/-. Further he admitted the signature of
his mother found in Ex.D.1 Affidavit. Further he also
stated that Ex.D.1 was blank document when his
mother singed on the said document. Further he also
admitted signatures sisters and brothers of D3 in this
document.
21. Admittedly, Ex.D.1 is an Affidavit, in the
said document the signature of the mother of Plaintiff
No.1 was found. According to this document, all the
children of Gopal Rao have sworn to this Affidavit by
stating that they have no objection for Defendant No.3
to apply for a loan and to receive the loan amount
from the Society on the Suit Properties. Further this
witness also admitted the signature of his
mother/Plaintiff No.1 on Ex.D.2 which is the Power of
Attorney executed by all the children of Gopal Rao in
favour of wife of Defendant No.3 as per Ex.D.9. This
witness has identified the signature of his mother on
all the pages of Ex.D.2. Further he stated that he does
not know on the basis of Ex.D.2 the wife of Defendant
No.3 executed registered Release Deed dtd: 1.4.1998
in favour of Defendant No.3 in respect of Suit A
28 O.S.No.26348/2012
schedule property. Further stated that he does not
know on the strength of the said Release Deed the
Defendant No.3 has become absolute owner of Suit
Schedule ‘A’ Property. Further stated that he is not
aware that his mother and Plaintiff No.2 were aware
of the Release Deed and ownership of Defendant No.3
over the Suit Schedule ‘A’ Property. Further admitted
the suggestion that the 3rd Defendant has constructed
a new residential building in the Suit Schedule ‘A’
Property by demolishing old house. Further admits
the suggestion that there was house warming
ceremony in the year 2000. Further admits that
himself and his mother were attended the house
warming ceremony.
22. In the above admission of PW.1 with Ex.D.1
to Ex.D.3 it appears that the Plaintiff No.1 and other
brother and sisters of D.3 were signatory to Ex.D.1 &
Ex.D.2 and on the basis of Ex.D.2 only the wife of
Defendant No.3 had executed Release Deed in respect
of Suit Schedule ‘A’ Property in favour of Defendant
No.3 as per Ex.D.9.
23. The Plaintiffs have categorically contended
that the Ex.D.2 has been created by forging the
29 O.S.No.26348/2012
signature of the Plaintiffs and executed Release Deed
in favour of the Defendant No.3 on 1.4.1998 in respect
of the Suit Schedule ‘A’ Property. However, in order to
show that the signature of Plaintiff No.1 has been
forged by the wife of the Defendant No.3 is concerned,
no materials have been placed. On the other hand,
the PW.1 himself has admitted the signature of his
mother in Ex.D.2 Power of Attorney, so the question of
forging the signature of Plaintiff No.1 on Ex.D.2 does
not arise.
24. The Defendant No.3 has examined himself
as DW.1 and reiterated most of the contents of his
written statement in his examination-in-chief. In
support of his evidence he has got marked as many
as 32 documents including the certified copy of Final
Decree passed in O.S.No.125/1965, Compromise
Petition entered in the said suit, Encumbrance
Certificate, Family Arrangement, Khata Extract,
Release Deed, Sanction Plan in respect of the house
constructed in the Suit Schedule ‘A’ Property,
Electricity & Water Bills, Tax Paid Receipts, IT
Returns, Photo and property records of the Suit
Schedule ‘A’ & ‘B’ Properties, Tax Paid Receipt etc.
30 O.S.No.26348/2012
25. During the course of cross-examination, he
admitted the suggestion that the 1 st Plaintiff is the
third daughter of his parents. The 1 st Plaintiff got
married against the wishes of their parents. Further
denied the suggestion that for that reason they hated
deceased Plaintiff No.1 and in order to cheat her they
have created documents over the Suit Schedule
Properties. Further he admits the suggestion that Suit
Schedule ‘A’ Property is an ancestral property and all
the children of his parents are entitle for equal share
over the same. Even the deceased Plaintiff No.1 was
also having equal share over the same. Further
admits the suggestion that the General Power of
Attorney was not registered. Further denied the
suggestion that no such General Power of Attorney
was executed by the deceased Plaintiff No.1 and it
was created by him to get the property transferred in
his name. Further admits the suggestion that the Suit
Schedule ‘B’ Property being the landed property
belongs to his mother and the Plaintiffs are having
equal share over the same. Further admits that till
today the khatha of the property is standing in the
name of her mother.
31 O.S.No.26348/2012
26. It is an admitted fact that though this
witness admitted that Plaintiff No.1 is having equal
share over the Suit Schedule ‘A’ & ‘B’ Properties, but
as discussed above, the deceased Plaintiff No.1
during her lifetime had executed General Power of
Attorney in favour of wife of Defendant No.3 and in
pursuance of said General Power of Attorney only the
wife of Defendant No.3 has executed Ex.D.9 Release
Deed in favour of Defendant No.3. In order to show
that the wife of Defendant No.3 had no authority to
execute the Release Deed in favour of Defendant No.3
in pursuance of Ex.D.2 is concerned, no materials
produced by the Plaintiffs in this suit.
27. The Defendant No.1 who is the sister of
Plaintiff No.1 and Defendant No.3 also examined as
DW.2 and she fully supported the case of the
Defendant No.3. This witness also been cross-
examined by the counsel for the Plaintiff, but no worth
materials have been elicited from her mouth to
disprove the contents of her examination-in-chief.
Even during the course of cross-examination made by
the counsel for the Plaintiffs also she specifically
32 O.S.No.26348/2012
stated that Suit Schedule ‘A’ Property was released by
all of them in favour of Defendant No.3. Even this
witness during the course of cross-examination stated
that when they have all released their share in favour
of Defendant No.3, there is no need to partition the
Suit Schedule ‘A’ Property. Further stated that in
Ex.D.9 no witnesses have affixed their signatures as
witness to the said document. The evidence of DW.2
is much helpful to the Defendant No.3 and cross-
examination of DW.2 is of no use to the Plaintiffs to
disprove the valid execution of Ex.D.9 by the wife of
Defendant No.3 in favour of Defendant No.3.
28. It is the argument of the Learned Counsel for
the for the Plaintiff No.1 is that the Defendant No.3 is
claiming right over the Suit Schedule ‘A’ Property on
the basis of unregistered General Power of Attorney
alleged to have been executed by the Plaintiff No.1
and other Defendants. But on the basis of
unregistered General Power of Attorney no property
can be transferred. Therefore, the Release Deed
executed by the wife of Defendant No.3 on the basis
of unregistered General Power of Attorney cannot be
termed as legal and valid document and it is against
33 O.S.No.26348/2012
to Section 17 of the Limitation Act and as well against
to Section 54 & 55 of Transfer of Property Act.
Therefore, the Defendant No.3 will not confer any title
nor transfer any interest in Suit Schedule ‘A’ Property.
The Defendant No.3 in order to swallow the share of
Plaintiff No.1 over the Suit Schedule ‘A’ Property only
created Ex.D.2 and Ex.D.9. Therefore, the Court may
hold that on the basis of Ex.D.9 the Defendant No.3
did not get any right over the Suit Schedule ‘A’
Property. In support of his arguments he has relied
upon the decisions of the Hon’ble Apex Court in
Special Leave Petition (C) No.13917 of 2009 in
between Suraj Lamp & Industries Pvt., Ltd., V/s
State of Haryana & Anr.
29. It is the arguments of the Learned Counsel
for the for the Defendant No.3 is that the Plaintiffs
have filed the present suit against the Defendants for
the relief of partition in respect of the Suit Schedule ‘A’
& ‘B’ Properties and also prayed to declare that the
Release Deed dtd: 1.4.1998 is not binding on the
Plaintiffs’ share in the Suit Schedule ‘A’ Property
which was based on forged General Power of
Attorney dtd: 4.2.1998. Such being the fact, it is
34 O.S.No.26348/2012
burden upon the Plaintiffs to prove that the Ex.D.2 &
Ex.D.9 have been created by playing fraud, undue
influence, coercion etc., in this regard, there is no
pleading in the plaint and full particulars of undue
influence, coercion etc., shall have to be pleaded by
the Plaintiffs in the plaint and then they have to prove
the same. General allegations regarding fraud and
undue influence are not sufficient, mere use of
expressions ‘misrepresentation’ and ‘fraud’ etc., are
not sufficient. In support of pleadings the Plaintiff
No.1 has not placed any materials, on the other hand,
PW.1 himself has admitted the signatures of his
mother Plaintiff No.1 in Ex.D.1 & Ex.D.2. When the
signatures of Plaintiff No.1 is admitted, it deemed that
she has signed on the said document, then onus is
upon the Plaintiffs to establish that those documents
have been created by playing fraud. However, in
order to show that it has been created, no materials
forthcoming from the side of the Plaintiffs. Therefore,
he prayed to hold that the Plaintiffs have failed to
prove that the wife of Defendant No.3 by forging the
signature of Plaintiffs executed Release Deed in
favour of Defendant No.3.
35 O.S.No.26348/2012
30. In support of his arguments he has relied
upon fallowing decisions reported in:
1) AIR 1951 SC 280 Bishundeo Narayan &
Another V/s Seogeni Rai & Others,
2) AIR 1963 SC 1279 Ladli Prashad Jaiswal V/s
The Karnal Distillery Co., Ltd., Karnal,
3) (2021) 5 SCC 241 H.S. Goutham V/s
Ramamurthy & Another,
4) 2021 SCC Online Bombay 2360 Indus Co-
Operative Housing Society Limited, Nagpur V/s
Nagpur Improvement Trust and Others,
5) (2009) 14 SCC 782 Rajini Tandon V/s Dulal
Ranjan Ghosh Dastidar and Another and
6) 2022 Livelaw (SC) 822 C.S. Ramaswamy V/s
V.K. Senthil & Others.
31. I have gone through all the above decisions
and the principles of all the above decisions are aptly
applicable to the facts of this case. Here in this case
also it is the contention of the Plaintiffs that the
signature of Plaintiff No.1 has been forged for creating
Ex.D.2. However, in this regard, no materials placed.
As argued by the counsel for the Defendant No.3 mere
36 O.S.No.26348/2012
use of expression ‘misrepresentation’ and ‘fraud’ in
the pleading without any further particulars does not
satisfy legal requirements in this regard. Moreover, in
the aforesaid decision of the Hon’ble Apex Court in
Rajini Tandon Case the Hon’ble Apex Court held that,
where a Deed is executed by an Agent for the
Principal and the same Agent signs, appears and
presents the deed or admits execution before the
Registering Officer, that is not the case of presentation
under Section 32(C) of the Act. Section 33 will come
into play only in cases where presentation in terms of
Section 32(C) of the Act. In other words, only in cases
where the persons signing the documents cannot
present the documents before the Registering Officer
and gives a Power of Attorney to another to present
the document that the provisions of Section 33 get
attracted. Further it is held that only in such a case,
that the said Power of Attorney has to be necessarily
executed and authenticated in the manner provided
under Section 33(1)(a) of the Act.
32. Here in this case, the Plaintiffs and all other
sisters of Defendant No.3 have jointly executed Power
of Attorney in favour of the wife of Defendant No.3
37 O.S.No.26348/2012
and in turn the wife of Defendant No.3 has executed
registered Release Deed in favour of Defendant No.3
before the Registering Authority. So she has executed
the said document in view of the power given to her
by other sisters and brother of the Defendant No.3.
Even PW.1 clearly admitted the signature of his
mother and other siblings of his mother on Ex.D.1.
even he clearly admitted the signatures of his mother
on Ex.D.2. So, Ex.D.2 is executed by the brothers and
sisters of Defendant No.3 to execute Release Deed by
the wife of Defendant No.3 in favour of Defendant
No.3 and this document taken place within the family
members. Hence, it cannot be said that it is created
one, moreover after long gab, only after institution of
the suit only the Plaintiffs have taken contention
regarding forging of signatures of Plaintiff No.1 on
Ex.D.2, but it is not proved.
33. Further as observed in the above referred
decision of C.S. Ramaswamy V/s V.K. Senthil &
Others, in the present case also just the Plaintiff
pleaded that fraud has been played by forging the
signature of Plaintiff No.1 in Ex.D.2, but they have not
specifically pleaded in the plaint, mere stating in the
38 O.S.No.26348/2012
plaint that a fraud has been played is not enough and
allegations of fraud must be specifically averred in the
plaint otherwise merely using the word fraud itself is
not sufficient to come to conclusion that by forging the
signature of the Plaintiffs the wife of the Defendant
No.3 has executed Release Deed in favour of
Defendant No.3 in respect of Suit Schedule ‘A’
Property.
34. It is further argument of the Learned Counsel
for the for the Defendant No.3 is that the Ex.D.2 has
been taken place on 14.2.1998 and the Ex.D.9
Release Deed has been taken place on 1.4.1998.
However, the present suit has been filed in the year
2012 and also the Plaintiffs for the first time got
amended the plaint on 1.10.2020 and taken up fresh
contention regarding the forging of the signatures of
Plaintiff No.1 on Ex.D.2. According to Section 17 of
Limitation Act effect of fraud plea that suits are filed
within 03 years of acquiring knowledge of fraud,
failure of Plaintiff to examine the person disclosing the
information to her, since the Plaintiff failed to
establish the existence of fraud, there is no occasion
for its discovery, benefit under Section cannot be
39 O.S.No.26348/2012
extended to the Plaintiff. In support of this argument
he has relied upon the decision reported in AIR 2021
SC 899. I have gone through the above decision and
the principles of the above decision is aptly applicable
to the case on hand and the contention of the
Defendant No.3.
35. As aforesaid, though the Power of Attorney
has been taken place on 14.2.1998 and the Release
Deed on 1.4.1998, but the suit is filed in the year
2012. Moreover, the Plaintiffs have failed to establish
the existence of fraud in executing Ex.D.2. Therefore,
there is no occasion for its discovery. Therefore,
benefit under Section 17 of Limitation Act cannot be
extended to the Plaintiff. Therefore, suit is prima-facie
barred by limitation.
36. It is pertinent to note that in another recent
decision relied upon by the counsel for the Defendant
No.3 in Vinita Shama V/s Rakesh Sharma case
also the Hon’ble Apex Court clearly held that :
Family and Personal Laws –
S.6(5) r/w Expln. Thereto [as
substituted by the Hindu
40 O.S.No.26348/2012Succession (Amendment) Act,
2005] – Provision under,
excepting those partitions which
were effected before 20-12-2004
by a decree of a court or a deed
duly registered in terms of
Registration Act, 1908 –
Intendment of S.6(5) Expln. And
its importance, explained and
emphasized.
The protection of rights of
daughters as coparcener is
envisaged in the substituted
Section 6 of the HS Act, 1956
recognizing the partition bought
about by a decree of a court or
effected by a registered
instrument. The partition so
effected before 20-12-2004 is
saved.
37. In the present suit also on 14.2.1998 all the
brothers and sisters of the Defendant No.3 have
executed Ex.D.2 Power of Attorney in favour of the
wife of Defendant No.3 and in turn she executed
registered Release Deed in respect of Suit Schedule ‘A’
Property in favour of Defendant No.3 on 1.4.1998. The
41 O.S.No.26348/2012said Release Deed is questioned by the Plaintiffs after
infinite time in the year 2016. Therefore, the partition
claimed by the Plaintiff No.1 on Suit Schedule ‘A’
Property is clearly hit by the principles of this
decision.
38. No doubt, though the suit has been filed in
the year 2012 and for the first time the Plaintiff
sought the relief of declaration in the year 2016 to
declare the Release Deed dtd: 1.4.1998 executed by
the wife of Defendant No.3 in favour of 3 rd Defendant
is not binding on the Plaintiffs share over the Suit
Schedule Properties, as the same has been created by
forging the signatures of the Plaintiffs in Ex.D.2 etc.
However, according to the decision reported in AIR
2011 SC 41 in between Van Vibhag Karamchari
Griha Nirman Sahakari Sanstha Maryadit
(Regd.) V/s Ramesh Chander & Others of Hon’ble
Apex Court, the Plaintiffs omission to claim the relief
of declaration by filing the suit and got amended the
plaint after so many years, the said relief is prima-
facie barred under Article 54 of Limitation Act. For
better appreciation of the above decision, I would like
42 O.S.No.26348/2012
to re-produce the relevant part of the aforesaid
judgment as under:
Civil P.C. (5 of 1908), O.2 R.2,
O.6 R.17 – Specific Relief Act (47
of 1963), S.20, S.34 – Limitation
Act (36 of 1963), Art.54 – Suit for
declaration of title and
injunction – Omission to claim
relief of specific performance of
agreement to sell – It would
amount to relinquishment of that
part of claim – Subsequent
inclusion of plea of specific
performance by way of
amendment after 11 years of
filing of suit – Cannot be allowed
being barred by limitation under
Art.54 of Limitation Act.
39. The principles of the above decision is aptly
applicable to the case on hand and the arguments
canvassed by the Learned Counsel for the for the
Defendant No.3. As aforesaid in the present suit also
at the time of filing of the suit the Plaintiffs have not
sought for any declaration with regard to Release
Deed dtd: 4.2.1998. When the Defendant No.1 and 3
filed written statement and taken up contention that
without claiming the relief of declaration to declare the
43 O.S.No.26348/2012Release Deed as null and void the Plaintiffs are not
entitled for the relief of partition, then only the
Plaintiffs got amended the plaint, till then the
Plaintiffs were silent spectator on the issue of GPA or
on the Release Deed. The Plaintiffs and other sisters
of the Defendant No.3 were aware that they have
signed the Power of Attorney before the suit is
initiated by the Plaintiffs, but they have not sought
any relief with regard to allegation of fraud in
connection with Ex.D.2 Power of Attorney. Therefore,
the limitation would start running from the date of suit
filed by the Plaintiffs. When the Plaintiffs have not
sought the relief of declaration while filing the suit
with regard to alleged forging of the signatures of the
Plaintiffs in the Power of Attorney, it would amount to
relinquishment of claim of declaration and subsequent
amendment after lapse of so many years to include
the relief of declaration cannot be allowed and it is
prima-facie barred by limitation.
40. Further the Learned Counsel for the for the
Defendant No.3 in his further arguments contended
that though the Plaintiff No.1 was signatory to Ex.D.2
and the said Ex.D.2 had been taken place in the year
44 O.S.No.26348/20121998, the suit filed in the year 2012 and the Plaintiffs
got amended the plaint in the year 2016 and 2020
and also for the first time the Plaintiffs claimed the
relief of declaration in the year 2020 that the
Defendant No.3 has created General Power of
Attorney on 14.2.1998 by forging the signature of
Plaintiffs and created Release Deed on 1.4.1998. the
suit brought in respect of declaration with regard to
alleged General Power of Attorney and Release Deed
after 12 years from the date of Release Deed is
barred by law of limitation. Therefore, the Plaintiffs
were not entitle for the reliefs as prayed in the suit. In
this connection the Counsel for the Defendant No.3
further relied the decisions of the Hon’ble Apex Court
in 2019 SC 1430 between Raghavendra Sharan
Singh V/s Ram Prasanna Singh (Dead) by Lrs., in
the above decision the Hon’ble Apex Court held thus:
Civil P.C. (5 of 1908) O.7 R.11(d) –
Rejection of plaint – Ground of
limitation – Suit for declaration
that Gift Deed executed in favour
of Defendant is sham transaction
and not binding – Filed after
more than 22 years of execution
of registered Gift Deed – Plaintiff
not praying for any declaration
45 O.S.No.26348/2012to set aside Gift Deed as in that
case suit would be clearly barred
by limitation under Art. 59 of
Limitation Act – Averments in
plaint cleverly drafted to bring
suit within period of limitation –
Plaint liable to be rejected.
Limitation Act (36 of 1963),
Art.59.
41. Further in the decision reported in 2019 (4)
KCCR 3891 between M/s Durga Projects and
Infrastructure Pvt., Ltd., Bengaluru, V/s Sri. S.
Rajagopala Reddy & Others, the Hon’ble High
Court of Karnataka held thus:
Civil Procedure Code, 1908 –
Order 7 Rule 11(a)(c)(d) and
Section 115 – CRP against order
dismissing IA made under Order
7, Rule 11(a)(c) and (d) read with
Section 151 CPC – Application
made by Defendants 1 to 3 and 5
– Suit for declaration that
Plaintiffs are absolute owners of
their 1/3 share and the alleged
Sale Deeds are not binding on
them – Plea of Defendants that
without challenging the alleged
Sale Deeds executed 12 years
46 O.S.No.26348/2012ago, suit for declaration is not
maintainable and barred by
limitation – Suppression of fact
as to execution of GPA and
agreement of sale.
42. The principles laid down in the above
decisions of Hon’ble Apex Court and Hon’ble High
Court of Karnataka are aptly applicable to the case on
hand. In the present suit also initially the Plaintiffs
have filed the suit in the year 2012 and simply
prayed the relief of partition and separate possession
of their 2/8th share in the Suit Schedule ‘A’ & ‘B’
Properties. When the Defendant No.3 has appeared
through his counsel and contended that without
seeking the relief of declaration to declare the Release
Deed dtd: 1.4.1998 as null and void, the present suit
for partition is not maintainable, then only in the year
2016 and 2020 they got amended the plaint and
inserted the relief of declaration with regard to the
Release Deed dtd: 1.4.1998. When the prima-facie
suit filed by the Plaintiffs after lapse of more than 20
years of execution of Release Deed and not prayed
the relief for declaration to set aside the Release Deed
at the time of filing of the suit and subsequent
47 O.S.No.26348/2012amendment to the plaint and prayer itself would be
clearly barred by limitation under Article 59 of
Limitation Act.
43. Merely, clever drafting of the plaint to bring
the suit within the period of limitation is not a ground
to hold that the Plaintiffs are entitle for the reliefs as
prayed in the suit. Further as aforesaid on careful
perusal of plaint averments and also admission of
PW.1, it can very well be said that the Plaintiffs were
very much aware of transactions taken place with
regard to Ex.D.2 and Ex.D.9, that took place in the
year 1998 itself, they have suppressed the material
facts of execution of Release Deed and filed the suit.
Further they did not challenge all those transaction
for a quite long time, when even the Plaintiff No.1 was
party to the Ex.D.2. Therefore, the Plaintiff do not get
right to claim the said relief in the suit.
44. As aforesaid, PW.1 has admitted the
signature of his mother on Ex.D.1 & Ex.D.2 and even
in Ex.D.9 it is clearly mentioned that all the sisters
and brother of Defendant No.3 by receiving an
amount of Rs.1,00,000/- from the Defendant No.3
have released their right over the Suit Schedule ‘A’
48 O.S.No.26348/2012
Property in favour of Defendant No.3. As aforesaid,
the Plaintiffs have not at all claimed the relief of
declaration with regard to Release Deed within the
period of limitation. Even though the Defendants
argued that the Plaintiffs were aware about the
execution of Power of Attorney in the year 1998 and
they first time filed the suit in the year 2012 only for
the relief of partition of their share in the suit
properties and subsequently got amended the plaint
and sought the relief of declaration with regard to
alleged Gift Deed in the year 2020. All those things
would clearly indicates that the Plaintiffs impliedly
admitted the ownership and possession of the
Defendant No.3 over the Suit A Schedule Property.
Even though the Plaintiffs were aware about the
execution of Ex.D.2 & Ex.D.9 in the year 1998 itself
they have not challenged the said General Power of
Attorney and Release Deed within the period of
limitation. Therefore, as contended by the Defendant
No.3, the General Power of Attorney dtd: 14.2.1998
and Release Deed dtd: 1.4.1998 are clearly binding
on the Plaintiffs and Defendant No.1, 2, 4 & 5.
Therefore, I answer Issue No.1 in the Negative,
Addl. Issue Nos.1 & 4 in the Affirmative.
49 O.S.No.26348/2012
45. Issue No.3 & 4:-
Since the above issues are inter related and
finding on one issue is having bearing on the other, in
order to avoid repetition of facts, the above issues
have been taken up together for consideration.
46. The Defendant No.1 & 3 have taken up
specific defense in their written statement that the
suit of the Plaintiffs is bad for non-joinder of
necessary parties and the Defendant No.3 has
developed the Suit Schedule ‘B’ Property and has
constructed a house in the Suit Schedule ‘A’ Property.
The Defendant No.1 initially in the written statement
itself has stated that the suit is not maintainable as
one Manjunath the legal heir of S. Gopal Rao is left
out and not arrayed as one of the necessary party to
this suit. Even the family tree produced by the
Plaintiffs is incomplete etc. In this connection, during
the course of cross-examination made to PW.1 it is
suggested that G. Manjunath is also the son of S.
Gopala for that PW.1 admitted as true and correct. In
Ex.P.1 the Plaintiffs have simply stated that
Manjunatha is absconding. However, no steps have
been taken by the Plaintiffs to traced out the
50 O.S.No.26348/2012
whereabouts of G. Manjunath. Even PW.1 admitted in
the cross-examination that Manjunath was taking
treatment in Cadabams Arogya Kendra,
Kanakaapura Road, and he enquired about the
whereabouts of Manjunath and he could not get any
information. They have not lodged any missing
complaint with the Jurisdictional Police. Further
stated that he had filed application to impleading him
in the year 2016 and on the basis of information
furnished by Defendant No.3 he is stating that
Manjunath is missing. No doubt, no effective steps
have been taken to trace out the whereabouts of
Manjunath or they not filed any suit to declare that
the Manjunath is died as per law. Therefore, prima-
facie the suit is suffering from non-joinder of
necessary party.
47. On perusal of order sheet and the records, it
is clear that later the Plaintiffs have moved
IA.No.2/2022 under Order 1 Rule 10 R/w Section 151
of CPC to implead Manjunath as a party in this suit
and the said application came to be allowed.
However, the Plaintiffs have not taken effective steps
to serve the summons on Defendant No.7
51 O.S.No.26348/2012
i.e,.Manjunatha. Thereafter, on 4.7.2023 this Court
observed that insiptie of sufficient opportunities the
Plaintiffs remained absent and did not take any steps
against the Defendant No.7. Accordingly, the suit
against the Defendant No.7 has been dismissed.
48. Likewise, on 17.7.2023, the Counsel for the
Defendant No.3 had filed a memo reporting the death
of Plaintiff No.2 in the year 2021. Even the Plaintiff
No.1 has not chosen to produce the Death Certificate
of Plaintiff No.2, though the Plaintiff No.2 is the
maternal uncle of Plaintiff No.1(a) for obvious reasons.
Further it is observed in the order sheet dtd:
5.12.2023 that no steps has been taken against the
Lrs of Plaintiff No.2, as such the suit against the
Plaintiff No.2 has been abated. In this connection, the
PW.1 in his cross-examination admitted that Plaintiff
No.2 is died about 03 years back, he survived by wife
and two children and his wife name is Nagaratna and
daughter name is Sowmya and son name is
Raghavendra. He has no contact with them.
49. Admittedly, it was the duty of the Plaintiff
No.1 to bring the Lrs of Plaintiff No.2 on record in this
52 O.S.No.26348/2012
suit. Even the Plaintiff No.1 has not made any efforts
to traced out the whereabouts of legal heirs of Plaintiff
No.2. Since the Plaintiff No.2 is the uncle of PW.1 he
should have bring the Lrs of Plaintiff No.2 on record.
Therefore, prima-facie it appears that the suit filed by
the Plaintiffs for the relief of partition is not
maintainable as the same is suffered from non-joinder
of necessary parties. Therefore, the genealogy
produced by the Plaintiffs as per Ex.P.1 is not in
accordance with real facts. When the Plaintiffs have
filed the suit for partition, all the legal heirs of
deceased S. Gopal Rao should have been brought on
record and they are necessary and proper parties to
this suit. Unless and until all the legal heirs of
deceased S. Gopal Rao are brought on record the
Plaintiffs cannot entitle for the relief of partition in this
suit.
50. The Defendant No.1 & 3 have contended
that the Defendant No.3 has developed the Suit
Schedule ‘B’ Property and constructed a house in the
Suit Schedule ‘A’ Property. Admittedly, according
Ex.D.1 all the brothers and sisters of Defendant No.3
have permitted the Defendant No.3 to avail loan from
53 O.S.No.26348/2012
the Society for construction of house in Suit Schedule
‘A’ Property. Even PW.1 clearly admitted that there
was a house warming ceremony in the year 2000,
PW.1 himself and his mother were attended the house
warming ceremony. So this itself clearly goes to show
that the Defendant No.3 had constructed building over
the Suit Schedule ‘A’ Property by obtaining loan from
the Society. It is further contention of the Defendant
No1. & 3 is that the Defendant No.3 has developed
the Suit Schedule ‘B’ Property. The documents
produced by the Defendant No.3 reveals that one
Chikkanna had filed an application before the Land
Tribunal seeking occupancy right in respect of Suit
Schedule ‘B’ Property and the revenue proceedings
have been initiated in RRT/BS/44/1996-1997. Even
the order has been passed in favour of one
Venkataramaiah and it has been challenged and later
the application filed before the Land Tribunal by
Chikkanna was rejected. It appears that the
Defendant No.3 had contested all the said
proceedings on behalf of his mother before revenue
courts.
51. The Defendant No.3 had contended that he
has developed the Suit Schedule ‘B’ Property by
54 O.S.No.26348/2012
investing huge money. On the other hand, the Plaintiff
No.1(a) is not aware about the said cultivation as he
had visited the Suit Schedule ‘B’ Property about 15-20
years back. When such being the fact, from the oral
and documentary evidence placed by the Defendants,
it is clear that the Defendant No.3 had developed the
Suit Schedule ‘B’ Property by investing money.
Therefore, I answer Issue No.3 & 4 in the
Affirmative.
52. Addl. Issue No.2:-
The Defendant No.3 has taken up contention in
this suit that without seeking the relief of cancellation
of Release Deed dtd: 1.4.1998 the suit filed by the
Plaintiffs claiming the relief of partition is not
maintainable. Admittedly, in this suit the Plaintiffs
initially simply filed the suit for partition and
thereafter claimed that the Release Deed dtd:
1.4.1998 is not binding on the Plaintiffs share over
the Suit Schedule ‘A’ Property. Admittedly, the
Plaintiffs should have claimed that the said Release
Deed has to be declared as null and void. Anyhow,
already this Court comes to conclusion that the
Release Deed dtd: 1.4.1998 is binding on the
Plaintiffs and Defendant No.1, 2, 4 & 5.
55 O.S.No.26348/2012
53. Moreover, according to the decision relied
upon by the counsel for the Defendant No.3 in 2019
(4) KCCR 3891, the Plaintiffs claiming the relief of
possession of the Suit Property, he must sought for
the relief of declaration to set aside the concerned
Deeds which is claiming to be not binding on them.
But in this suit simply claimed that Ex.D.9 is not
binding on their shares over the Suit ‘A’ Schedule
Property.
54. I have gone through the above decision. In
Para No.8 of the said judgment it is held thus:
Para – 8. As regards limitation, in
Para 38 of the plaint it is clearly stated
that the cause of action arose on
18.03.2005, 29.03.2007 and 15.06.2016.
18.03.2005 is the date when the first
defendant executed a sale deed in favour
of third defendant. That means, the cause
of action first arose on 18.03.2005. This is
a suit for declaration and possession. Just
because possession is claimed, 12 years
period of limitation is not available. Unless
the sale deeds are set aside and the
plaintiffs’ title is declared, they are not
entitled to possession. Declaration is the
main relief in the circumstances pleaded.
Article 58 of the Limitation Act is
applicable and therefore the limitation is
to be reckoned from the first date; the
56 O.S.No.26348/2012
subsequent dates pleaded do not extend
the limitation period.
55. The principles of the above decision is aptly
applicable to the case on hand. In this suit also the
Plaintiffs contended that the Release Deed dtd:
1.4.1998 is not binding on the Plaintiffs. However, the
Plaintiffs have not claimed any declaration to declare
that the said Release Deed has to be set aside and
her share has to be declared. Unless she prayed for
setting aside the Release Deed she is entitle for the
relief of partition. That apart, according to above
decision, Article 58 of the Limitation Act is applicable
and therefore, the limitation is reckoned from the first
date and i.e., from the date of execution of Release
Deed, the subsequent dates as pleaded by the
Plaintiffs in their plaint do not extend the limit of
limitation period. Therefore, this Court opines that the
Plaintiffs ought to have claimed the relief of
declaration to declare that the Release Deed dtd:
1.4.1998 has to be cancelled. Hence, I answer this
Issue in the Affirmative.
56. Addl. Issue No.3:-
The Defendant No.1 & 3 in their written
statement have contended that the Plaintiffs have not
57 O.S.No.26348/2012properly valued the suit and the court fee paid by the
Plaintiffs is not proper and correct. However, the
Plaintiffs at the filing of this suit have filed valuation
slip and paid court fee of Rs.425/- as per Section
35(2) of the Karnataka Court Fee and Suits Valuation
Act. Further the Plaintiffs have valued the Suit
Schedule ‘A’ & ‘B’ Properties for Rs.80,00,000/- and
Rs.30,00,000/- each. It is true that after amendment
of plaint the Plaintiffs have not paid the separate
court fee for the relief of declaration. Admittedly, the
Ex.D.9 executed on the basis of Ex.D.2 Power of
Attorney executed by the Plaintiffs and other brothers
and sisters of Defendant No.3. So the Plaintiffs are
also parties to the Ex.D.9. Therefore, the Plaintiffs
ought to have paid court fee under Section 38 of the
Kartnataka Court Fee and Suits Valuation Act.
Therefore, this Court opines that the court fee paid by
the Plaintiffs is not sufficient and correct.
Accordingly, I answer this Issue in the Negative.
57. Issue No.2:-
In view of detailed discussion and findings given
by this Court on the foregoing issues, it is clear that
though the Plaintiffs are having share over the Suit
58 O.S.No.26348/2012Schedule ‘A’ Property, but in view of Ex.D.2 and
Ex.D.9 they are not entitle for any share over the
same. No doubt, the Suit Schedule ‘B’ Property
belongs to the mother of the Plaintiffs and Defendants
and the Plaintiffs are also having equal share over the
same. Even the DW.1 has also clearly admitted the
same in his cross-examination. The Defendant No.3
contended that his mother had executed General
Power of Attorney as per Ex.D.23 and gave entire
right of the Suit Schedule ‘B’ Property in his favour.
Anyhow, as on today still the Suit Schedule ‘B’
Property is standing in the name of mother of the
Plaintiffs. Even all the court proceedings before the
revenue authority also took place in her name only.
No doubt, the Plaintiffs and Defendants are having
equal right over the Suit Property. However, in view of
the Plaintiffs have not brought all the legal heirs of
deceased S. Gopal Rao as parties in this suit and also
in view of detailed discussion and findings given on
foregoing issues, this Court cannot say that till today
the Suit Schedule Properties are available for
partition. Therefore, I answer this issue in the
Negative.
59 O.S.No.26348/2012
58. Issue No.5 & 6:-
In view of detailed discussion and findings given
by this Court on the foregoing issues, it is clear that
the Plaintiffs, Defendant No.2 & 5 have failed to prove
that they are entitle for the relief of partition in the
Suit Schedule Properties. Similarly, the Plaintiffs have
failed to establish that they are entitle for the relief of
declaration as claimed in the plaint prayer (a)(i) of the
suit plaint. Hence, I answer these issues in the
Negative.
59. Issue No.7:-
In view of the findings on the above issues, the
suit of the Plaintiffs deserves to be dismissed with
costs. Accordingly, I proceed to pass the following:
ORDER
The Suit of the Plaintiffs is
hereby dismissed with costs.
Draw Decree accordingly.
(Dictation given to the Stenographer, transcribed by her, after
correction, signed and pronounced by me in the open court on this
the 10th day of January 2025.)[Sri. Sreepada N]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73).
60 O.S.No.26348/2012
SCHEDULE “A” PROPERTY
All that piece and parcel of the residential house
bearing Old No.31, presently BBMP No.45, 29 th
Division, PID No.49-57-45, Ward No.49, Surveyor
Street, K.G. Nagara, Basavanagudi, measuring East
to West 23′.6″ X 24′.3″ and North to South 6′.2″ X
12′.2″, bounded on the-
East by : Private Property. West by : Private Property. North by : Conservancy.
South by : Common space leading for entrance to
Surveyor Street & Private Property
No.45/1.
SCHEDULE “B” PROPERTY
All that piece and parcel of land bearing
Sy.No.178/1 measuring 01 Acre 16 Guntas including
03 Guntas Kharab land situated at Ramapura @
Akkirampura Village, Holavanahalli Hobli, Koratagere
Taluk, Tumkur District, bounded as on the-
East by : Jayamangala River.
West by : Gomala.
61 O.S.No.26348/2012
North by : Remaining land in same Survey Number.
South by : Gomala.
[Sri. Sreepada N]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73).
ANNEXURES
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1: N.G. Shivaprasad.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : Genealogical Tree.
Ex.P.2 & : Death Certificate of S. Gopal Rao &
Ex.P.3 Smt. Sushilamma.
Ex.P.4 : Mutation Order No.40/2004-05.
Ex.P.5 : RTC in respect of Sy.No.178.
Ex.P.6 : Khata Extract.
Ex.P.7 : Endorsement dtd: 8.7.2022 issued by
BBMP.
Ex.P.8 : Certified copy of Release Deed dtd:
1.4.1998.
Ex.P.9 : Certified copy of Gift Deed dtd: 6.2.1946.
62 O.S.No.26348/2012
Ex.P.10 : 2 Mutation Order No.T19/2020-21.
&
Ex.P.11Ex.P.12 : RTC in respect of Sy.No.178/1.
Ex.P.13 : Death Certificate of G. Geetha.
Ex.P.14 : Death Certificate of N.G. Pushpalatha.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1 : G. Subramanya. DW.2 : Mrs. Seethalakshmi N.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D.1 : Affidavit dtd: 5.7.1997.
Ex.D.2 : General Power of Attorney 14.2.1998.
Ex.D.3 : Certified copy of Final Decree in
O.S.No.125/1995.
Ex.D.4 : Certified copy of Compromise Petition in
O.S.No.125/1995.
Ex.D.5 : Encumbrance Certificate from 1.4.1968 to
23.9.1996.
Ex.D.6 : Recording of the Family Arrangement
Deed dtd: 10.11.1983.
Ex.D.7 & : Khatha Bifurcation in the name of
63 O.S.No.26348/2012
Ex.D.7(a) Defendant No.3 dtd: 1.4.1995 and Khata
Certificate dtd: 16.3.1996.
Ex.D.8 & : Khata Certificate dtd: 11.7.1998 and
Ex.D.8(a) Endorsement given by BBMP dtd:
22.1.1998.
Ex.D.9 : Release Deed dtd: 1.4.1998.
Ex.D.10 : Memorandum of deposit of Title Deeds
dtd: 2.1.1998.
Ex.D.11 : Discharge Certificate issued by Sir M.
Visveshwaraiah Co-Operative Bank Ltd.
Ex.D.12, : 7 Encumbrance Certificates.
Ex.D.12
(a to f)
Ex.D.13 : Sanction Plan dtd: 1.2.1989.
Ex.D.14 : Electricity & Water connection related
documents and payment receipts.
Ex.D.15 : Tax Paid Receipts from 1970 to 2024.
Ex.D.16 : Valuation Report dtd: 28.3.2000.
Ex.D.17 : IT Returns for Asst. Year 2000-2001.
Ex.D.18, : 6 Photographs with Pen Drive.
Ex.D.18
(a to g)
64 O.S.No.26348/2012
Ex.D.19 : Entire Medical Discharge Report of
Smt. Susheelamma.
Ex.D.20 : Hospital expenses and bills of
Smt. Susheelamma.
Ex.D.21 : Conditional Gift Deed dtd: 6.2.1946.
Ex.D.22 : Deed of Gift from P. seetharamaiah.
Ex.D.23 : GPA dtd: 26.10.1998.
Ex.D.24 : Notice dtd: 25.7.2002.
Ex.D.25 : Final Order dtd: 30.8.2004.
Ex.D.26 : Amended Order in RRT(A): 68/2002-03.
Ex.D.27 : Survey Sketch.
Ex.D.28 : Tippani Report.
Ex.D.29 : Mutation Register of entire Sy.No.178/1.
Ex.D.30, : 15 RTCs.
Ex.D.30
(a to n)
Ex.D.31 : E-Khatha for 2021-2022.
Ex.D.32 : E-Mutation Register.
Ex.D.33 : 4 Patta and Receipt Book.
Ex.D.33
(a to c)
65 O.S.No.26348/2012
Ex.D.34 : 14 Tax Paid Receipts from 1972 to 2022-
Ex.D.34 2023.
(a to m)
Ex.D.35 : Certificate issued by Chartered
Accountant along with statement.
[Sri. Sreepada N]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73).