Bangalore District Court
Munibeerappa D vs Narayanamma on 15 January, 2025
KABC010178802000
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 15 th DAY OF JANUARY, 2025
O.S.No.6922 of 2000
Plaintiff: 1. Sri. D. Munibeerappa,
S/o Late Doddamuniyappa,
Aged about 35 years,
R/at Kallakere, K.R. Puram Hobli,
Bengaluru South Taluk.
(By sri. S.M.S., Advocate)
-VS-
Defendants: 1. Smt. Narayanamma
W/o Late Doddamuniyappa
Aged about 60 years,(died and
LRs are already on record
2.
Sri. Munipoojappa,
S/o Late Doddamuniyappa,
Aged about 32 years,
Both are residing at Kallakere,
2 O.S.No.6922 of 2000
K.R. Puram Hobli, Bengaluru
South Taluk.
3.
Smt. Lakshmidevamma,
D/o Late Doddamuniyappa,
Aged about 40 years,
4.
Smt. Nagarathna,
D/o of Late Doddamuniyappa,
Aged about 38 years,
5.
Smt. Vijayalakshmi,
D/o Late Doddamuniyappa,
Aged about 36 years,
6.
Smt. Kanthamma,
D/o Late Doddamuniyappa,
Aged about 34 years,
Defendant No.3 to 6 are
R/at Kallakere, K.R. Puram Hobli,
Horamavu Post,
Bengaluru East Taluk.
7.
Sri. R. Uma Prasad,
Aged about 50 years,
S/o Late B. Rudrappa,
R/at No.237, 13 th Cross,
2 nd Stage, Indiranagar,
Bengaluru-560 017.
8.
Smt. S.G. Shashikala,
Aged about 35 years,
W/o Sri. R.N. Parameshwara,
R/at No.14, Ulsoor Road,
3 O.S.No.6922 of 2000
9. Indiranagar, Bengaluru-38.
Mrs. B.S. Nanda,
W/o Umaprasad,
No.410, Priyadarshini Apartment,
No.237m and 240, 13 th Cross, 2 nd
Stage,
Indiranagar, Bengaluru-38.
(By D1-J.P., D-2-DSM., D3 to D5-
S., D6-S.R., D7 to D9-V.B.S.,
Advocates)
Date of Institution of the suit : 12-10-2000
Nature of the Suit : Partition
Date of commencement of : 07.08.2002
recording of the evidence
Date on which the Judgment : 15.01.2025
was pronounced
Total Duration : Years Months Days
24 03 03
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
4 O.S.No.6922 of 2000
J U D G M E N T
That, the plaintiff has filed this suit for partition &
separate possession of the suit schedule property. The
plaintiff has also sought for declaration to declare that
Sale Deed dated 29.09.2000 executed by 1 st defendant
in favour of defendant No.7 and 8 is void and not
binding on the rights of the plaintiff.
The suit property is agricultural land described in
the schedule as under:
SCHEDULE
Property situated at Kallakere, K.R. Puram Hobli,
South Taluk, bearing Sy.no.358, extent 1 ace 17
guntas, kushki land 2 guntas karab land having
bounded on:-
East : Jinkathimanahalli boundary
West : Ramanna’s property
North : Muniyappa’s property
South : Kempathimanna & Muniyappa’s Property
2) The facts narrated in the plaint are
under:-
Genealogy of the parties as could be seen
from the pleadings is as under:
5 O.S.No.6922 of 2000
Doddamuniyappa
(Deceased)Smt. Narayanamma
(Def.1)D.Munibeerappa Munipoojappa Lakshmidevamma
(Plf) (Def.2) (Def.3)Nagarathna Vijayalakshmi Kanthamma
(Def.4) (Def.5) (Def.6)a. The plaintiff submits that one
Doddamuniyappa died leaving behind him his wife
Narayanamma-Def.No.1, Plaintiff and Defendant No.2-
sons as his legal heirs. The defendant No.3 to 6 are the
daughters of 1 st defendant & Doddamuniyappa It is
specific case of the plaintiff that Doddamuniyappa has
purchased the suit schedule property from his
retirement savings as well as from nucleus of ancestral
6 O.S.No.6922 of 2000
property in the name of his wife defendant No.1. It is
submitted by the plaintiff that 1 st defendant was house
wife and had no independent income or immovable
properties belonging to her. It is specific case of the
plaintiff that schedule property was purchased in the
name of 1 st defendant as per registered Sale Deed
21.05.1977 out of joint family funds and as such
Doddamuniyappa, defendant No.2 and plaintiff herein
being members of the family are having right over the
suit property. The plaintiff submits that property was
purchased by Doddamuniyappa as a kartha of the joint
family. It is submitted by the plaintiff that suit
schedule property purchased in the name of defendant
No.1 was in possession & enjoyment of joint family
members and land was cultivated by spending joint
family funds and also joint labour & joint efforts of the
members of the family.
7 O.S.No.6922 of 2000
b. The plaintiff further submits that property is
standing in the name of 1 st defendant, was never
treated as her separate property and it is treated as
joint family property only. Doddamuniyappa father of
the plaintiff and defendant No.2 to 6 had paid land
revenue in the name of 1 st defendant out of joint family
funds. Therefore, the plaintiff has contended that
though property is in the name of 1 st defendant, it is
treated as joint family property and she has lost her
right to deal with property independently. The plaintiff
submits that defendant No.1 to 6 and plaintiff had
equal rights in the suit property.
c. It is specific case of the plaintiff that
defendant No.7 and 8 are claiming to have purchased
the suit schedule property as per registered Sale Deed
dated 29.09.2000, said to have been executed by 1 st
defendant. The plaintiff has further pleaded that he
came to know about the sale deed only after remand of
8 O.S.No.6922 of 2000
the suit by Hon’ble High Court in RFA 137 of 2007 and
after filing of written statement by defendant No.7 &8.
It is submitted by the plaintiff that as per sale deed an
area of 01-03-00 is sold but the boundaries mentioned
in the Sale Deed is with respect to entire 01-17-00. It
is submitted by the plaintiff that 1 st defendant is
illiterate lady and none of the family members of the 1 st
defendant have either accompanied nor attested the
Sale Deed. It is further alleged by the plaintiff that by
taking undue advantage of illiteracy of 1 st defendant,
the Sale Deed has been created & got executed behind
the back of the plaintiff and other family members.
The plaintiff submits that the Sale Deed is null & void
and came in existence under suspicious circumstances
and hence, is not voluntarily executed by 1 st defendant.
d. The plaintiff further submits that schedule
property is the joint family property in joint possession
9 O.S.No.6922 of 2000
of the members of the family and as such the
defendant No.7 and 8 have not acquired right title or
interest over the suit property. It is submitted by the
plaintiff that the extent and boundaries mentioned in
the Sale Deed shows dishonest and fraudulent intention
of defendant No.7 and 8 and members of the family of
the plaintiff were in possession of the property and the
Sale Deed is not binding upon the rights of the plaintiff.
It is further submitted by the plaintiff that Sale Deed
had been got executed by misrepresentation and
playing fraud without disclosing the nature of the
document. It is submitted by the plaintiff that no
consideration amount was paid to 1 st defendant under
Sale Deed and as such, document is to be declared as
void and not binding upon the rights of the plaintiff.
e. The plaintiff submits that def.No.1
Narayanamma was suffering from disorder and illness
relating to mental health and as such, she was not
10 O.S.No.6922 of 2000
possession of good mental health. The plaintiff further
that Def.No.1-Narayanamma was admitted to National
Institute of Mental Health and Neuro Science Bengaluru
as an inpatient and also received treatment. It is
submitted by the plaintiff that Doctors who have
examined Def.No.1-Narayanamma have advised for
medication and as such, the 1 st defendant
Narayanamma being illiterate and suffering from
mental disorder, was unaware about the legal
consequences of executing Sale Deed in favour of
defendant No.7 and 8. It is submitted by the plaintiff
that defendant No.7 and 8 have taken her to Sub-
registrar offi ce & without making disclosing the nature
of document, got the executed Sale Deed. The plaintiff
submit that prior to execution of alleged Sale Deed,
defendant No.7 and 8 who are knowing very well about
nature of the property, the plaintiff and other children
of 1 st defendant, never consulted them and hence,
11 O.S.No.6922 of 2000
none of the family members have attested the Sale
Deed. It is submitted by the plaintiff that in the alleged
Sale Deed recitals that funds are needed for herself
and members of her family is an invented one and
Narayanamma was not in position to take any decision
to sell the schedule property.
f. It is submitted by the plaintiff that taking
advantage of name of 1 st defendant appearing the
revenue records pertaining to suit property, the
property has been alienated. It is further submitted by
the plaintiff that suit schedule property was in actual
possession of plaintiff and Mango fruits have been
grown in the suit schedule property. Since, 1 st
defendant with ulterior motive has alienated the
property and entered into an agreement of sale in
respect of schedule property and is about to dispose of
the property, plaintiff had filed suit for partition and
separate possession of the suit schedule property.
12 O.S.No.6922 of 2000
3) a. Initially suit was filed against defendant
No.1 and 2 only. The defendant No.1 remained ex-parte
and as per judgment dated 01.09.2023 suit came to
decreed holding that plaintiff is entitled for ½ share in
the suit schedule property. Against judgment and
decree dated 01.09.2023 the original defendant No.1
Narayanamma had preferred regular first appeal before
Hon’ble High Court of Karnataka at RFA.No.137 of
2007. The regular first appeal filed by the defendant
No.1 Narayanamma came to be allowed and suit was
remanded for fresh disposal. Def.No.1 Narayanamma
appeared before the court and filed written statement
on 20.01.2006. In the written statement 1 st defendant
Narayanamma had denied that plaintiff is having share
in the suit schedule property. 1 st defendant
Narayanamma has pleaded that she is also having 4
daughters apart from plaintiff and defendant No.2 and
contended that suit is bad for non-joinder of necessary
13 O.S.No.6922 of 2000
party. The defendant No.1 Narayanamma has also
denied that the property is purchased by her husband
Doddamuniyappa in her name as per Sale Deed dated
21.05.1977. 1 st defendant Narayanamma had
contended that suit schedule property is purchased by
her out of own earnings from one Smt. Chinnakka, and
the plaintiff and 2 nd defendant have endorsed the same
stating that schedule property is owned by 1 st
defendant Narayanamma as per deed of declaration
dated 29.09.2000.
b) The 1 st defendant has contended that suit
schedule property is her self-acquired property and
plaintiff and other defendant No.2 is not having right
over the property. It is also denied by the defendant
No.1 that suit property is the ancestral property of
Late Doddamuniyappa. The defendant No.1 has also
denied that plaintiff was in possession of the suit
property, planted Mango trees and enjoying the same.
14 O.S.No.6922 of 2000
It is contended by the 1 st defendant that she has sold
the part of the suit schedule property prior to filing of
the suit and during the pendency of the suit and little
portion in the remaining property was gifted to plaintiff
by registered Gift deed. The defendant No.1 has
contended that plaintiff, defendant No.2 and her four
daughters have executed deed of declaration declaring
that 1 st defendant is the absolute and sole owner of the
property and as such she is having absolute right to
alienate the property.
c) The 1 st defendant further submits that after
obtaining an ex-parte decree plaintiff enticed 2 nd
defendant to file another suit for partition at
O.S.No.7393 of 2003 and 2 nd defendant & plaintiff have
joint hands to harass the 1 st defendant and purchaser
of the suit schedule property causing inconvenience,
damages to the compound constructed by purchaser-
defendant No.3 and 4 of O.S.No.7393 of 2003. The
15 O.S.No.6922 of 2000
police complaint is also filed against the plaintiff and
defendant No.2. The 1 st defendant has further
contended that there is no cause of action to file the
suit and court fee is paid is insuffi cient. On these
counts the defendant No.1 prayed that suit of the
plaintiff be dismissed with cost.
4) As 1 st defendant has taken contention that
she is having 4 daughters, they have impleaded as
defendant No.3 to 6. The defendant No.3 to 5 have
appeared & filed written statement in the suit. The
defendant No.3 to 5 have admitted that suit schedule
property is the joint family property purchased by
Doddamuniyappa in the name of 1 st defendant out of
his retirement saving as well as from nucleus of the
ancestral property. The defendant No.3 to 5 have also
admitted that plaintiff and defendant No.2 to 6 are
having share in the suit schedule property and 1 st
16 O.S.No.6922 of 2000
defendant is not having absolute right to alienate the
property. It is submitted by the defendant No.3 to 5
that 1 st defendant has already given share to defendant
No.6 by way of Gifting part of the property and as
such, they are also entitled for share in the suit
schedule property along with plaintiff and defendant
No.2.
5) Defendant No.6 has filed separate written
statement and admitted that she is the daughter of
Doddamuniyappa and Smt. Narayanamma the 1 st
defendant herein and also relationship between the
parties to the suit as stated in the plaint. The
defendant No.6 has admitted other contentions taken
by the plaintiff in the plaint. Defendant No.6 has also
disputed the validity of Sale Deed dated 29.09.2000
executed by 1 st defendant in favour of defendant No.7
and 8 as same is not supported by consideration and
17 O.S.No.6922 of 2000
obtained by playing fraud and misrepresentation. The
defendant No.6 also contended that 1 st defendant was
not in good state of mental health and in the year 1982
only her mental health was deteriorated and gradually
she lost her sense of understanding anything. It is
further submitted by defendant No.6 that defendant
No.7 and 8 claims to be purchasers of the suit schedule
property from defendant No.1 though they having full
knowledge about the nature of the property got
transferred the property by playing fraud and
misrepresentation. It is submitted by the defendant
No.6 that by taking advantage of illiteracy of
Narayanamma and her children, the defendant No.7
and 8 got executed Sale Deed in their favour. Since,
Sale Deed dated 29.09.2000 is out-come of fraud,
undue influence and misrepresentation, the defendant
No.6 has contended that the same is not binding upon
the share of the defendant No.6 and she is having 1/7 th
18 O.S.No.6922 of 2000
share in the suit schedule property. Accordingly
defendant No.6 prayed that suit be decreed as prayed.
6) a. The defendant No.7 and 8 have denied
that suit schedule property is the joint family property
of plaintiff and defendant No.1 to 6. The defendant
No.7 and 8 have contended that as per deed of
declaration executed by plaintiff and defendant No.2 to
6 dated 29.09.2000 1 st defendant is the absolute owner
in possession of the suit property. It is denied by the
defendant No.7 and 8 that suit property is purchased
by Doddamuniyappa in the name of 1 st defendant and
as such, suit property is the joint family property of
plaintiff and defendant No.1 to 6. It is contended by
the defendant No.7 and 8 that they have purchased the
suit schedule property and def.No.1 Narayanamma has
sold the property by knowing the contents of the
document. It is further denied by the defendant No.7
19 O.S.No.6922 of 2000
and 8 that fraud has been committed by them and
hence, Sale Deed dated 29.09.2000 is void.
b) The defendant No.7 and 8 have also contended
that 1 st defendant was in sound state of mind at the
time of execution of Sale Deed and hence it cannot be
said that due to mental condition 1 st defendant was
unaware about the consequences of execution of the
document. The defendant No.7 and 8 have claimed
that they are in possession & enjoyment of the suit
schedule property and as such, the claim made by the
plaintiff is not sustainable and liable to be dismissed.
On the these grounds defendant No.7 and 8 are prayed
for dismissal of the suit.
7) The 2 nd defendant has not filed written
statement but he had filed one suit at O.S.No.7393 of
2003 which has been clubbed along with the suit. The
2 nd defendant has also claimed that suit property is the
20 O.S.No.6922 of 2000
joint family property of Doddamuniyappa which is
purchased in the name of defendant No.1-
Narayanamma. In OS No.7393 of 2008, defendant No.2
had claimed that he is having share in the suit
property.
8) The defendant No.7 and 8 have filed
application at I.A.No.12 under Order VII Rule 11(a) and
(d) of CPC R/w. Section 4 of Benami Transaction
(Prohibition) Act 1988 to reject the plaint. This court
by order dated 31.03.2015 has allowed I.A.No.12 filed
under Order VII Rule 11(a) and (d) of CPC and rejected
the plaint holding that suit is barred under Section 4 of
Benami Transaction (Prohibition) Act, 1988. The suit
filed by the defendant No.2 at O.S.No.7393 of 2003 was
also dismissed on the ground that the same is barred
by Benami Transaction (Prohibition) Act 1988. Against
rejection of plaint by order dated 31.03.2015 the
21 O.S.No.6922 of 2000
plaintiff herein has filed regular first appeal at RFA
No.766 of 2015. The Hon’ble High Court of Karnataka
by order dated 19.07.2022 has allowed the regular first
appeal setting aside the order passed by this court on
31.03.2015 and remanded the case for disposal in
accordance with law. Accordingly, this case was
restored at its original number and presence of the
parties are secured.
9) During the pendency of RFA No.766 of 2015
Def.No.1 Narayanamma died and her legal heirs are
already on record.
10) During the pendency of the suit defendant
No.8 has relinquished her share in the suit schedule
property in favour of defendant No.7 and thereafter,
defendant No.7 has gifted the property in favour of
defendant No.9, who is the wife of defendant No.9. In
view of the subsequent to events defendant No.9 was
22 O.S.No.6922 of 2000
also brought on record by filing application under Order
I Rule 10 CPC. Defendant No.9 has also filed
written statement similar to that of defendant
No.7 and 8.
11) By considering pleadings and documents
produced by the parties, my learned predecessor in
offi ce had framed the following issues :-
1. Whether plaintiff proves that the suit
schedule property is joint family
property of plaintiff and defendant
No.1 to 6?
2. Whether defendant No.1 proves that
the suit schedule property is her self-
acquired property?
3. Whether plaintiff is entitled for
partition and separate possession of
his share in suit property? If so, at
what share?
4. Whether D2 proves that the suit is bad
for non-joinder of necessary party?
5 Whether plaintiff is entitled for the
reliefs sought for?
6. What order or decree?
Additional Issues framed on
07.07.2010
23 O.S.No.6922 of 2000
1. Whether plaintiff proves that
defendant No.7 and 8 have obtained
Sale Deed dated 29.09.2000 from
defendant No.1 by playing fraud and
misrepresentation?
2. Whether plaintiff proves that the Sale
Deed dated 29.09.2000 executed by
defendant No.1 in favour of defendant
No.7 and 8 is null and not binding on
the plaintiff?
3. Whether plaintiff is entitled for
declaration as sought for?
Additional issues framed on
15.07.2011
1. Whether the plaintiff proves that the
Sale Deed dated 29.09.2000 executed
by defendant No.1 in favour of
defendant No.7 and 8 is null and void
and not binding on plaintiff?( Deleted
as per order dated 09.11.2023)
2. Whether defendant No.7 and 8 proves
that the court fee paid by the plaintiff
is not suffi cient?
3. Whether the defendants 7 and 8 prove
that the suit is barred by limitation?
Issue regarding sufficiency of court fees is
considered by this court and as per order dated
24 O.S.No.6922 of 2000
16.02.2012 the said issued is answered in negative
holding that court fee paid is sufficient.
12. In order to prove the contention of the
plaintiff regarding nature of the property and the
validity of Sale Deed which was under challenged,
plaintiff got himself examined as P.W.1 and got
marked Ex.P.1 to P.7 and after remand Ex.P.8 to
P.37 are marked. At the request of Plaintiff
witness summons to one M.Revanna S/o K.
Muddappa – signatory to sale deed is issued, but in-
spite of repeated issuance of witness summons,
warrant and proclamation, his presence could not
be secured. Defendant No.7 has not adduced
evidence but his Power of Attorney Holder who is
the brother of defendant No.7 is examined as DW.1.
Thereafter the defendant No.7 has executed
25 O.S.No.6922 of 2000
another General Power of Attorney in favour of his
wife defendant No.9 and she is examined as DW.2.
29 documents were marked on behalf of
defendants. Parties to the suit have not adduced
any further evidence.
13. The learned counsel appearing for the
plaintiff has argued that suit schedule property is
the joint family property consisting of
Doddamuniyappa and his sons, daughters and 1 st
defendant, 1 st defendant had no independent
income and property is purchased by
Doddamuniyappa out of his retirement benefit and
income from salary and also from the joint efforts.
Learned counsel for the plaintiff has argued that
Doddamuniyappa was in joint family with his
brothers but the Doddamuniyappa and his sons,
26 O.S.No.6922 of 2000
daughters and wife have constituted micro joint
family within larger joint family of Doddamuniyappa
and his brothers and the property is purchased for
the benefit of Doddamuniyappa and his sons,
daughters and wife. Therefore, the learned counsel
for the plaintiff has argued that property is the joint
family property belonging to micro joint family of
Doddamuniyappa and his sons and daughters. The
learned counsel for the plaintiff has contended that
there is no evidence to show that 1 st defendant had
any independent income out of which she can
purchase the property and as such, it has to be
held that the property is purchased by
Doddamuniyappa in the name of 1 st defendant and
as such, it is a joint family property.
27 O.S.No.6922 of 2000
14. The learned counsel for the plaintiff has
also argued that Sale Deed dated 29.09.2000 is out
coming of fraud and misrepresentation and as such
is a void document. The learned counsel has
attacked Sale Deed dated 29.09.2000 on many
grounds stating that Sale Deed dated 29.09.2000 is
not supported by consideration or no consideration
amount is paid to the 1 st defendant, 1 st defendant
was not at all present when Sale Deed dated
29.09.2000 was presented before Sub-registrar, the
presence of 1 st defendant was secured stating that
she is executing Sale Deed in favour of her
daughter 6 th defendant and thereafter, the Sale
Deed dated 29.09.2000 has been registered on
later date, which was kept pending when it was
presented. Learned counsel for the plaintiff has
also argued that there was a sale agreement
28 O.S.No.6922 of 2000
between one M. Revanna witness to sale deed and
the defendant No.7 herein which shows that
consideration amount is not paid to the 1 st
defendant.
15. The learned counsel for the plaintiff has
contended that consideration amount is not paid
under Ex.D.4 and the intention of 1 st defendant to
execute the Sale Deed was denied, the defendant
No.7 and 8 have not taken pain to examine
attesting witnesses and as such, it has to be held
that the Sale Deed is outcome of fraud, undue
influence and misrepresentation. It is argued by
the counsel for plaintiff that defendant No.7, DW.1
who is the brother of defendant No.7-advocate
appearing for 1 st defendant as well as 7 th defendant
and one M. Revanna colluding with each other
29 O.S.No.6922 of 2000
have created Sale Deed without informing the
contents of the Sale Deed. It is argued on behalf of
the plaintiff that Sale Deed has been drafted and
executed in the language not known to 1 st
defendant Narayanamma and there is no recitals in
the Sale Deed that contents of the documents are
read over and explained to 1 st defendant.
Therefore, the learned counsel for the plaintiff has
contended that the Sale Deed is not valid
document. The learned counsel has also drawn my
attention to the cross examination of the
defendants and stated that from the evidence of
DW.2 it cannot be said that she was present at the
time of execution of Sale Deed if compared with
evidence of DW.1 who is also a GPA Holder of
defendant No.7. It is argued by the counsel for the
plaintiff that though written statement is filed by
30 O.S.No.6922 of 2000
defendant No.1, the same is not verified by filing
affi davit and hence, the written statement cannot
be considered. The learned counsel for the
plaintiff has argued that even if written statement
is considered, in the written statement also 1 st
defendant has not stated to whom she has sold the
property what is consideration received and the
extent of the property sold and the DW.1 who was
appearing for 1 st defendant Narayanamma being
brother of 7 th defendant has concealed the Sale
Deed executed in favour of defendant No.7 and 8
by playing fraud to 1 st defendant Narayanamma
also and as such, there is no reference of name of
purchasers in the written statement filed on behalf
of Def.No.1 Narayanamma. Hence, learned counsel
appearing for the plaintiff has contended that the
Sale Deed is void in law and hence, liable to be set
31 O.S.No.6922 of 2000
aside. Learned counsel for the plaintiff has referred
following decisions:-
1. Gowtham Swarup V/s. Leela Jaitly and others
2. S.R. Srinivas & Ors V/s. Padmavathamma, 2010
AIR SCW 3935, para-31-34
3. K.V. Narayanaswami Iyer V/s. Ramakrishna
Iyer, 1965 AIR 289 page 7
4. A.K. Kraipak V/s. Union of India, AIR 1970 SC
150
5. Union of India V/s. Ibrahim Uddin & Anr
6. Commissioner of customs (preventive) V/s. M/s
Aaflote textiles (I) Pvt. Ltd others, in Civil Appeal
2447/2007, in paragraphs 9, 10, 11, 12, 13.
7. Veena singh (since dead) by LRs V/s. The
district Registrar
8. Deccan Paper Mills Co.Ltd V/s. Regency
Mahavir Properties and others.
9. Mohommad Abdul Wahid V/s. Nilofer and
another made in SLP (CIVIL) No.14445/2021,
10. Devraj Dogra V/s. Gyanchand Jain, 1981 AIR
981,
11. Singara Sigh V/s. Daljit Singh para 15,
12. Ramathal V/s. K. Rajamani 2023 Livelaw (SC)
666
32 O.S.No.6922 of 2000
13. Udhav Singh V/s. Madhavarao Scindia AIR
1976 SC 744 para 30.
16. Per contra, the learned counsel appearing for
the defendant No.7 to 9 has argued that Def.No.1
Narayanamma has admitted that she has sold the
property to defendant No.7 and 8 and it is stated in the
written statement that 2 nd defendant by filing another
suit at O.S.No.7393 of 2003 tried to interfere with
possession of defendant No.3 and 4 of that suit who are
the purchasers which implies that Narayanamma has
clearly stated that she has sold the property to
defendant No.7 and 8. It is argued by the counsel for
the defendant that the property purchased in the name
of female is Shridhana property and is considered as
her self-acquired property. It is also argued by the
learned counsel appearing for the Defendant No.7 to 9
that as per Section 14 of Hindu Succession Act
property purchased by Female Hindu is treated as her
33 O.S.No.6922 of 2000
self-acquisition and as such, it is to be held that the
suit is bad in law as property is self-acquired property
of 1 st defendant. It is argued on behalf of defendant
that documents produced by plaintiff themselves shows
that the property is not a joint family property. The
learned counsel has drawn my attention to Ex.P.11 and
P.12 Partition deeds executed in the family of plaintiff
and others. Leaned counsel for the defendants has
contended that Ex.P.11 Partition deed dated
03.12.2002 is between 1 st defendant and her brother-
in-law i.e., brothers of her husband Doddamuniyappa
and in the said Partition deed there is no reference that
the suit property is a joint family property purchased in
the name of 1 st defendant.
17. The learned counsel for the defendant has
also argued that on the same day the plaintiff,
defendant No.1 and 2 got partitioned the property
34 O.S.No.6922 of 2000
allotted to 1 st defendant in family partition as per
Ex.P.11 and in that Partition deed also there is no
reference that the suit property is the joint family
property. Therefore, the learned counsel for the
defendants has contended that conduct of plaintiff,
defendant No.1 and 2 clearly establishes that property
is the separate property of 1 st defendant and she had
every right to alienate the suit schedule property. It
is also argued by the counsel appearing for the
defendants that the Sale Deed dated 29.09.2000 is
valid document and defendant No.7 and 8 have
purchased the property thereafter, defendant No.8 has
released her right in the suit schedule property in
favour of defendant No.7 on 17.02.2023 by executing
Release deed and thereafter, 7 th defendant has gifted
the property to defendant No.9 and as such, at present
the defendant No.9 is the owner in possession of the
suit property. The learned counsel for the defendants
35 O.S.No.6922 of 2000
has also contended that the possession of original
documents clearly shows that property was sold to
defendant No.7 and 8 and consideration amount is
received by defendant No.1. Since, registered
documents are having presumptive value, learned
counsel for the defendants has contended that
examination of attesting witness was not necessary
and hence, suit is liable to be dismissed. The learned
counsel for the defendants has relied upon following
decisions:-
1. LAWS (KAR) – 2022-10-803 in case of K.V.
Nagesh Gowda V/s. Munivenkatappa K.M
2. LAWS (KAR)-2021-12-34 in case of Vijayakumar
V/s. Vanajakshi
3. AIR 1976 SC 744 in case of Udhav Singh V/s.
Madhav Rao Scindia
4. AIR 2018 SC 3080 in case of Siddagangaiah (D)
their LRs V/s. N.K. Giriraja Shetty(D) their LRs.
18. The defendant No.2 & 6 have also filed written
arguments in the similar lines that of plaintiff and
36 O.S.No.6922 of 2000
prayed that suit be decreed and their share may kindly
be declared by passing preliminary decree.
19. I have perused oral and documentary
evidence adduced by both the parties to the suit in
light of the arguments advanced before me and my
findings on the above issues are:-
Issue No.1: In the Negative
Issue No.2: In the Affi rmative
Issue No.3: Plaintiff is not entitled for
partition and separate
possession
Issue No.4: Does not arise for
consideration
Additional Issue No.1 In the Negative
& 2 framed on
07.07.2010
Additional Issue No.2 Already decided as per
framed on 15.07.2011 order dated 16.02.2012
Additional Issue No.3 In the Negative
Issue No.5 and Plaintiff is not entitled for
additional issue No.3 the relief claimed
framed on 07.07.2010
Issue No.6: As per final order,
for the following:-
37 O.S.No.6922 of 2000
REASONS
20. Issue No.1 and 2 :- These issues are framed
with respect to nature of the suit schedule property. It
is contended by plaintiff that though property is
purchased in the name of 1 st defendant, the property is
purchased by his father Doddamuniyappa and as such
suit property is the joint family property of plaintiff and
defendant No.1 to 6. Whereas defendant No.1, 7 to 9
are contending that suit property is the self-acquired
property of defendant No.1. In this suit admitted an
undisputed facts are as below:
1. The relationship of plaintiff and defendant No.1
to 6.
2. Suit property was standing in the name of 1 st
defendant and was purchased in the name of 1 st
defendant as per registered Sale Deed dated
21.05.1977.
3. The joint family property consisting of
Doddamuniyappa and his brothers, has been divided
as per Ex.P.11 Partition deed dated 03.12.2002 i.e.,
during the pendency of the suit.
38 O.S.No.6922 of 2000
4. The joint family property consisting of plaintiff
and defendant No.1 to 6 were also divided during
the pendency of the suit as per Ex.P12 Partition
deed dated 03.12.2002.
The only dispute in the suit is regarding nature of
suit property and validity of Sale Deed.
21. The plaintiff contended that property is
purchased in the name of 1 st defendant and 1 st
defendant had no income and as such, it is a joint
family property. The plaintiff claims that his father
Doddamuniyappa had purchased suit property in the
name of 1 st defendant as per Sale Deed dated
19.05.1977 which is registered on 23.05.1977. In the
present case there is evidence available to show that
defendant No.1 had independent avocation through
which she had income to purchase the suit property.
To show that property is purchased by
Doddamuniyappa in the name of 1 st defendant, there is
no evidence except oral evidence of plaintiff. The
39 O.S.No.6922 of 2000
plaintiff has contended that property is the Benami
property of his father in the name of his mother for the
benefit of micro family consisting of Doddamuniyappa
and his sons and 1 st defendant only. It is further
contention of plaintiff as his father was joint with his
brothers, the property is purchased in the name of
defendant No.1. It is an admitted fact that when
property was purchased the Doddamuniyappa and his
brothers were joint. The plaintiff is not claiming that
out of the joint family funds available from the joint
family property, the present suit property is purchased
by his father Doddamuniyappa. If that is so then
brothers of Doddamuniyappa will also have share in the
property. However, the plaintiff is claiming that the
suit property is purchased by Doddamuniyappa out of
his retirement benefit, salary income for the benefit of
his family i.e., Doddamuniyappa, his wife, 1 st defendant
Narayanamma, his two sons i.e., plaintiff and defendant
40 O.S.No.6922 of 2000
No.2. The plaintiff claims that the property is a Benami
property of Doddamuniyappa, which is purchased in the
name of his wife 1 st defendant. While ordering
rejection of plaint as per order passed on I.A.No.12 this
court has held that suit is hit by Benami Transaction
(Prohibition) Act, however the Hon’ble High Court of
Karnataka in RFA No.766 of 2015 has observed that
Benami Transaction (Prohibition) Act is not barred and
following observation was made by the Hon’ble High
Court of Karnataka.
“6. Sub-section (1) of Section 3, as seen,
prohibits a person from entering into any
Benami transaction. Sub-section (3) of Section
3, as seen, makes a person who enters into a
Benami transaction liable for punishment.
Section 5 makes properties held Benami liable
for acquisition without payment of any amount.
But, when sub-section (2) of Section 3 permits
a person to enter into a Benami transaction of
purchase of property in the name of his wife or
41 O.S.No.6922 of 2000unmarried daughter by declaring that the
prohibition contained against a person in
entering into a Benami transaction in sub-
section (1) of Section 3, does not apply to him,
question of punishing the person concerned in
the transaction under sub-section (3) thereof or
the question of acquiring the property
concerned in the transaction under Section 5,
can never arise, as otherwise the exemption
granted under Section 3(2) would become
redundant. What we have said of the person
and the property concerned in sub-section (2)
of Section 3 in relation to non-applicability of
Section 3(3) and Section 5 shall equally hold
good for non-applicability of the provisions of
sub-sections (1) and (2) of Section 4 in the
matter of filing of the suit or taking up the
defence for the selfsame reason. Further, we
find it diffi cult to hold that a person permitted
to purchase a property in the name of his wife
or unmarried daughter under sub-section (2) of
Section 3 notwithstanding the prohibition to
enter into a Benami transaction contained in
sub-section (1) of Section 3 cannot enforce his
42 O.S.No.6922 of 2000rights arising therefrom, for to hold so would
amount to holding that the statute which
allows creation of rights by a Benami
transaction also prohibits the enforcement of
such rights, a contradiction which can never be
attributed to a statute. If that be so, there can
be no valid reason to deny to a person,
enforcement of his rights validly acquired even
in the past by purchase of property in the
name of his wife or unmarried daughter, by
making applicable the prohibition contained in
respect of filing of suits or taking up of
defences imposed in respect of Benami
transactions in general by sub- sections (1) and
(2) of Section 4 of the Act. But, it has to be
made clear that when a suit is filed or defence
is taken in respect of such Benami transaction
involving purchase of property by any person in
the name of his wife or unmarried daughter, he
cannot succeed in such suit or defence unless
he proves that the property although
purchased in the name of his wife or
unmarried daughter, the same had not
been purchased for the benefit of either
43 O.S.No.6922 of 2000the wife or the unmarried daughter, as
the case may be, because of the statutory
presumption contained in sub-section (2)
of Section 3 that unless a contrary is
proved that the purchase of property by
the person in the name of his wife or his
unmarried daughter, as the case may be,
was for her benefit.
22. In the Judgment, the Hon’ble High Court has
held that as per the judgment of Apex Court in case of
Nanda kishore V/s. Sushila Mehra & held that the bar
under Section 4(1) and 4(2) of Benami Transaction
(prohibition) Act is not applicable to the property
purchased in the name of person’s wife or his
unmarried daughter, subject to the presumption that
property was purchased for the benefit of wife and
unmarried daughter. It is clear from provisions of
Section 3, 4(1) and 4(2) that if any property is
purchased in the name of person’s wife or his
44 O.S.No.6922 of 2000
unmarried daughter, the prohibition contained in the
Act is not applicable but, it is to be presumed that it is
for the benefit of wife and unmarried daughter unless
he proves that property though purchased in the name
of his wife or unmarried daughter, same had not been
purchased for the benefit of wife or unmarried
daughter. So law presumes that the property is even if
purchased by Doddamuniyappa in the name of 1 st
defendant, it is for her benefit and not for the benefit of
entire family. No evidence is adduced by plaintiff to
show that intention behind the purchase is for the
benefit of entire family. Except interested say of
plaintiff and pleading made by other defendants no oral
or documentary evidence is forthcoming in this regard.
23. Apart from this, as per Section 14 of Hindu
Succession Act, any property purchased by or in the
name of female member of the family is considered as
45 O.S.No.6922 of 2000
her self-acquired property. The Hon’ble High Court of
Karnataka in Vijayakumar Vs. Vanajakshi reported in
Laws (KAR) 2021-12-34 has held that property
purchased in the name of wife is a self-acquired
property under provisions of Section 14 of Hindu
Succession Act. So, in the absence of any material to
show that property was purchased for the benefit of
entire family, this court cannot hold that the property is
the joint family property of micro family of plaintiff and
defendant No.1 to 6 only. The presumption available
under Section 14 of Hindu Succession Act and under
Section 3 & 4 of Benami Transaction (Prohibition) Act
also makes it clear that when property is purchased in
the name of wife then it is for the benefit of wife and as
such, it is treated as her separate property. If the age
of plaintiff and defendant No.2 to 6 are considered as
mentioned in the plaint, then in year 1977 they are 09-
17 years old and it cannot be held that they have also
46 O.S.No.6922 of 2000
contributed money for purchase of suit property or
property is purchased by the family from joint efforts.
Therefore, in my considered opinion the plaintiff has
failed to establish that suit property is the joint family
property of plaintiff and defendant No.1 to 6. Per
contra, with presumptions available in favour of 1 st
defendant, the property is required to be treated as
separate property of defendant. Accordingly, Issue
No.1 is answered in the Negative and Issue No.2 is
answered in the Affi rmative.
24. Additional Issue No.1 and 2 framed on
07.07.2010:- That, these two issues are framed with
respect to validity of Sale Deed dated 29.09.2000-
Ex.P.7/ Ex.D.4 and whether it is binding upon the
plaintiff or not. The plaintiff has challenged Sale Deed
dated 29.09.2000-Ex.P.7/ Ex.D.4 stating that same is
outcome of fraud, and misrepresentation. The plaintiff
47 O.S.No.6922 of 2000
has claimed that the Sale Deed dated 29.09.2000-
Ex.P.7/ Ex.D.4 is void as it was obtained by playing
fraud and misrepresentation on 1 st defendant, no
consideration amount is paid to the 1 st defendant,
defendant No.1 has executed the Sale Deed without
knowing the contents of the document and sale is void
as defendant No.1 had no independent right over the
suit schedule property.
25. Contention regarding right of defendant
No.1 to execute the Sale Deed. While answering
issue No.1 and 2 I have concluded that , suit property
was purchased in the name of 1 st defendant and it is
the self-acquired property of 1 st defendant as per
Section 14 of Hindu Succession Act and as per proviso
of Section 4 to Benami Transaction (Prohibition) Act it
is to be considered as purchased for the benefit of
defendant No.1 Narayanamma. Since, the property is a
48 O.S.No.6922 of 2000
self-acquired property and separate property of
defendant No.1 Narayanamma, she had every right to
alienate the property and plaintiff, defendant No. 2 to
6 are not having any right to question the same.
Therefore, the contention of the plaintiff that since 1 st
defendant had no authority to sell the property, sale is
void does not arise for consideration.
26. The contention regarding capacity of
defendant No.1 to execute the Sale Deed dated
29.09.2000-Ex.P.7/ Ex.D.4. The plaintiff as well as
6 th defendant have contended that the 1 st defendant
was not mentally fit to execute the document as she
was admitted to NIMHANS Bangalore and has been
advised to take medicines. It is important to note that
the plaintiff has produced some document which shows
that the defendant No.1 has taken treatment in
NIMHANS. The Ex.P.32 the case dairy and prescription,
49 O.S.No.6922 of 2000
it can be seen that Narayanamma was admitted to the
NIMHANS and she has been discharged in the year
1992 only. It is seen from the discharge summary that
she was depressed and a medication was prescribed.
But it does not show that Def.No1-Narayanamma was
not in fit state of mind in the year 2000. It is
important to note that Narayanamma filed RFA No.137
of 2000 and the Hon’ble High Court has allowed that
RFA, thereafter she appeared before this court filed
written statement and also filed application for change
of advocate and as such, one cannot say that Def.No1-
Narayanamma was mentally unfit when she executed
Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4. It cannot
be said that Def.No.1 Narayanamma was not in fit state
of mental condition and she was incapable of knowing
the consequences or understanding the document
which she executed. Apart from this, the plaintiff has
produced Ex.P.11 and P.12 registered Partition deed
50 O.S.No.6922 of 2000
dated 03.12.2002. In Ex.P.11 Def.No.1 Narayanamma
represented entire branch of her husband
Doddamuniyappa-plaintiff and defendant No.2 to 6. As
per Ex-P11 there was partition in respect of family
property of the joint family of Doddamuniyappa & his
brothers. Thereafter, on the same day plaintiff
defendant No.2 and Narayanamma-1st defendant got
divided the properties allotted to the branch of
Doddamuniyappa as per Ex.P.11 and the properties
have been partitioned as per Ex.P.12. The Partition
deeds executed on 03.12.2002 and same is binding
upon the parties to the suit. When Narayanamma was
sound state of mind in the year 2002 to represent
branch of plaintiff & def.No.2 to 6, one cannot say that
she was not mentally fit as on the date of execution of
Sale Deed. Therefore, in my considered opinion the
contentions raised on behalf of plaintiff and defendant
No.6 that Def.No.1 Narayanamma was not in state
51 O.S.No.6922 of 2000
condition of mind to execute the Sale Deed and
hence, same is void cannot be accepted. In my
considered opinion Def.No.1 -Narayanamma was
mentally fit since she has participated in the
proceedings of this suit, she has filed RFA before
Hon’ble High Court of Karnataka and she has also
executed registered document after execution of the
disputed Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4.
Therefore, in my considered opinion the contention that
due to unstable mental status of defendant No.1 Sale
Deed is void cannot be accepted and liable to be
rejected.
27. Contention regarding Fraud &
misrepresentation. The plaintiff has alleged that
fraud has been committed on Def.No.1 Narayanamma
and as such, the Sale Deed is void. To appreciate this
contention the pleadings is not an accordance with
52 O.S.No.6922 of 2000
Order VI. As per Order VI Rule 4 CPC the party has to
plead that when fraud is committed, who has
committed a fraud and the other details of fraud is
required to be pleaded. The ingredients necessary is
not pleaded. So, pleading is not in accordance with
Order VI Rule 4 of CPC. The plaintiff claimed that
Def.No.1 Narayanamma was not present when Sale
Deed is presented for registration and as such, it was
kept pending and Narayanamma was present on
17.10.2000 then only the Sale Deed has been
registered which shows that Def.No.1 Narayanamma
was not at all present when Ex.D.4 original Sale Deed
was produced for registration. I have perused Ex.D.4
original Sale Deed in detail. The Sale Deed has been
presented on 29.09.2000 by defendant No.7. As per
Section 32 of Registration Act every document to be
registered under the provision of Registration Act
except cases mentioned in Section 31, 88 and 89
53 O.S.No.6922 of 2000
whether such registration be compulsory or optional,
shall be presented at the proper registration offi ce by
person executing or claiming under the same. The
defendant No.7 and 8 are claiming under the document
i.e., Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4 and as
such, as per Section 32 they can present the same for
registration. So, presentation of sale deed by
defendant No.7 for registration cannot be considered as
one of the circumstances which will lead to the
inference that fraud has been played of def.No.1.
28. As per Section 34 of Registration Act when a
document is presented for registration, the registering
authority shall (a) enquire whether or not such
document was executed by the persons by whom it
purports to have been executed; (b) satisfy himself as
to the identity of the persons appearing before him and
alleging that they have executed the document;
54 O.S.No.6922 of 2000
and (c) in the case of any person appearing as a
representative, assign or agent, satisfy himself of the
right of such person so to appear. Thereafter, only he
has to register the document by holding in inquiry. In
this case, the endorsement made on the Ex.D.4 does
not show that executant was not present when
document was presented for registration nor it is stated
that executant has not admitted the execution of
document. In Ex.D.4 Sale Deed it is mentioned that
the registration is kept pending on 29.09.2000. On
17.10.2000 it is stated that admission for registration
and on 17.10.2000 the document has been registered.
It is not mentioned in Ex.D.4 that on 17.10.2000
executant was present. It is to be noted that the Sale
Deed was executed on stamp paper of Rs.70,850/-.
As per the assessment of Sub-registrar the proper
stamp duty is Rs.72,969/-. There was a deficit stamp of
₹.1,950/- and same was paid in State Bank of Patiala on
55 O.S.No.6922 of 2000
29.09.2000, the Sub-registrar has endorsed the same
stating that ₹.1,950/- being deficit/ proper stamp duty
has been recovered/ credited to Bank/ treasury vide
Challan No.453417 dated 29.09.2000 by Sri. R.
Umaprasad and Shashikala. This endorsement on the
last page of Ex.D.4 shows that the reason for not
registering the document on 29.09.2000 was a deficit/
proper stamp duty of Rs.1,950/- and not executant
being absent. Therefore, it cannot be said that as on
the date of execution of document and presentation of
documents for registration Def.No.1-Narayanamma was
not present. In fact, as per the endorsement appearing
on the 2 nd page of the Sale Deed Def.No.1-
Narayanamma was present on 29.09.2000 and she has
admitted that she has executed the Sale Deed.
Therefore, in my considered view the contention of the
plaintiff that Def.No.1-Narayanamma was not at all
56 O.S.No.6922 of 2000
present when Sale Deed was presented for registration
does not have any force.
29. It is contended by plaintiff that Revanna who
is signatory to Ex.D.4 has taken Def.No.1-
Narayanamma for transferring the 00-06-00 of land in
favour of defendant No.6 and by misleading her that
she is executing the Sale Deed in favour of her
daughter defendant No.6, Ex.D.4 has been executed.
The plaintiff has not pleaded this aspect in the plaint.
Only theory is built in cross examination & during the
arguments. It is important to note that the Sale Deed
has been executed in favour of defendant No.6 with
respect to 10 guntas of land in the suit survey number
on 25.10.2000. Ex.D.28 is certified copy of Sale Deed
dated 25.10.2000 executed in favour of defendant No.6
by defendant No.1-Narayanamma. The plaintiff has not
challenged the Sale Deed dated 25.10.2000 nor
57 O.S.No.6922 of 2000
Narayanamma during her lifetime has challenged Sale
Deed dated 25.10.2000. The Sale Deed was presented
on 25.10.2000 only and same is registered on
25.10.2000. So, one cannot come to the conclusion
that the Def.No.1-Narayanamma was present on
29.09.2000 or 17.10.2000 for execution of Sale Deed in
favour of her daughter and by misrepresenting that she
is executing the document in favour of her daughter,
Ex.D.4 is executed by Narayanamma in favour of
defendant No.7 and 8. Therefore, in my considered
opinion, when the date of document executed in favour
of defendant No.6 is different than that of one
mentioned in Ex.D.4, this court cannot hold that by
playing fraud and misrepresentation on defendant
No.1. The defendant No.7 and 8 and Revanna got
executed the Sale Deed.
58 O.S.No.6922 of 2000
30. The defendant No.7 and 8 are not related to
Narayanamma-defendant No.1, so one cannot say that
she had trust over the defendant No.7 and 8 and she
has executed the document Ex.D.4 Sale Deed dated
29.09.2000 without verifying the contents of the same.
It is true that in Ex.D.4 Sale Deed is in English language
not known to Def.No.1-Narayanamma, and there is no
recital that the Sale Deed that document has been read
over and explained to Def.No.1-Narayanamma.
However, in the Ex.D.4 Sub-Registrar has made an
endorsement that he has explained the document to
executant Def.No.1-Narayanamma and she has
admitted the same. The endorsement is made while
discharging offi cial duty and court shall presumed that
Sub-registrar being Government servant has carried
out his duties in accordance with law. So, Sub-
Registrar has explained the contents of the document
which is presented for registration and Narayanamma-
59 O.S.No.6922 of 2000
1st defendant has admitted that she has executed the
Sale Deed. Therefore, it cannot be held that the Sale
Deed is outcome of fraud and undue influence. There
is an allegation against one of the witness M. Revanna
stating that he was the agreement holder of the
schedule property and has played fraud and taken a
signature of defendant No.1 on the Sale Deed without
there being the intention to sell the property. The said
contention is not proved. Though xerox copy of the
Agreement of sale dated 04.06.2000 was produced,
same is not marked. This court cannot consider the
Agreement of sale dated 04.06.2000 since the same is
not proved by plaintiff. Even marking of xerox copy
was rejected by this court as it is a xerox copy which
has been upheld by Hon’ble High Court of Karnataka in
Writ Petition No.23661 of 2023. The Hon’ble High court
has clearly held that Agreement of sale dated
04.06.2000 is not mentioned in the plaint nor a
60 O.S.No.6922 of 2000
foundation is laid to lead secondary evidence. Plaintiff
being not party to Sale agreement dated 04.06.2000,
which is being in between Defendant No.7 & M.
Revanna, the agreement is irrelevant and as such,
rejection was proper. So, the Agreement of sale dated
04.06.2000 which is not proved in accordance with law
cannot be considered to say that M.Revanna was the
Agreement holder and at his instigation defendant No.1
has signed the Sale Deed. Apart from this original title
deed i.e., 19.05.1977 is handed over to the defendant
No.7 & 8 which also shows that Def.No.1 by
understanding the effect of document which is
executing has executed the sale deed. No explanation
is given by plaintiff how defendant No.7 & 8 are able
to secure original title deeds. That apart the defendant
No.1 in the written statement has mentioned that she
has sold the property to defendant No.3 & 4 of OS
No.7393 of 2003 and during her life time she has not
61 O.S.No.6922 of 2000
challenged the sale deed stating that document has
been got executed by playing fraud, misrepresentation
and undue influence. From the available evidence, the
plaintiff has not proved that sale deed has been got
executed by playing fraud upon the defendant No.1.
31. Contention Sale Deed is void for want of
consideration. The learned counsel for plaintiff has
argued that in the cross examination defendant No.9
and DW.1 have clearly stated that sale consideration is
paid through cheque but, no account extract is
produced and in the Sale Deed it is mentioned that sale
consideration is paid by cash. So, it is contended that
in the absence of proof of passing of sale consideration
amount, the Sale Deed dated 29.09.2000 is void. It is
true that the Sale Deed without consideration is void. In
the Ex.D.2 it is mentioned that the Sale Deed is
executed for consideration amount of ₹.4,80,000/-. It is
62 O.S.No.6922 of 2000
also mentioned that ₹.4,80,000/- was paid to def.No.1-
Narayanamma before the witnesses at the time of
registration. It is not mentioned that whether it is paid
in cash or paid through bank account. But, in the Sale
Deed it is mentioned that the sale consideration
amount is paid to Narayanamma. 1 st defendant had
never denied that she has not received consideration
amount under Ex.D.4 Sale Deed. Def.No.1-
Narayanamma even after sale of property filed RFA,
filed written statement and also participated in the
proceedings of this suit. She never stated that sale
consideration amount is not paid to her. Even if sale
consideration amount is not paid, the remedy is to file
a suit for recovery of sale consideration. So, when the
executant of document has not denied the execution,
executant of document has not denied receipt of
consideration amount, it cannot be said that the
consideration amount is not paid under the Sale Deed
63 O.S.No.6922 of 2000
and as such, Sale Deed is void. So, it cannot be said
that the sale is void because same is not supported by
consideration. Name of purchasers has been entered
in the RTC pertaining to suit schedule property in the
year 2001 only as per MR.No.7/2001 as could be seen
from the RTC pertaining to the suit schedule property.
The plaintiff or Def.No.1 Narayanamma have not
objected for change of katha stating that the property
was not sold to defendant No.7 and 8. Katha has been
changed in the year 2002 only and in the year 2003
when suit was remanded defendant No.1 has filed
written statement stating that she sold the some of
the properties. In written statement filed the
defendant No.1 has clearly stated that the 2 nd
defendant by filing suit at O.S.No.7393 of 2003 is
interfering with possession of defendant No.3 and 4 of
that suit. Ex.D.1 the plaint copy of O.S.No.7393 of
2003 shows that defendant No.3 and 4 of O.S.No.7393
64 O.S.No.6922 of 2000
of 2003 are Umaprasad and Shashikala who are
defendant No.7 and 8 in the suit. So, Def.No.1-
Narayanamma has clearly stated that defendant No.7
and 8 are the purchasers of the property and she has
sold the property to them. When executant of
document herself has admitted in the judicial
proceedings, this court cannot hold that Sale Deed is
outcome of fraud, undue influence and
misrepresentation. The learned counsel for plaintiff
has argued that the counsel appearing for the
defendant No.1 Narayanamma was brother of
defendant No.7 and as such, as per the instructions of
his brothers written statement is drafted. It is
important to note here that the advocate appearing for
the defendant No.1 who is the brother of defendant
No.7 and later on he was examined as DW.1 as GPA
holder. DW.1 has clearly deposed that as per the
instructions given by Narayanamma only he has
65 O.S.No.6922 of 2000
drafted written statement. There is no allegations that
DW.1 was present when Sale Deed was executed by
Def.No.1-Narayanamma and he is part of conspiracy of
execution of Sale Deed. In the pleadings there is no
allegation against DW.1. That apart, DW.1 retired from
the suit and Def.No.1-Narayanamma had filed
applications for appointment of a lawyer as DW.1 is not
protecting her interest. Thereafter, one Jayaprakash
advocate appeared for defendant No.1 and he has not
filed any application for striking of pleadings filed by
defendant No.1 through her previous advocate who was
brother of defendant No.7, nor defendant No.1 has filed
additional written statement stating that the earlier
admissions made in the written statement is not
correct. So, this court cannot hold that the admissions
made in the pleadings is not correct, though verifying
affi davit is not available in the file, at the time of filing
of application for change of advocate, Def.No.1-
66 O.S.No.6922 of 2000
Narayanamma had filed affi davit stating that she has
already filed written statement in this suit, which shows
that written statement was filed by her in this suit.
Therefore, in my considered opinion executant of the
document has admitted the execution of the document
and has not pleaded fraud, undue influence coercion
and non-payment of consideration amount. Therefore,
this court cannot hold that the defendant No.7 and 8
playing fraud upon Def.No.1-Narayanamma, have got
executed the Sale Deed. Therefore, in my considered
view the Sale Deed dated 29.09.2000 is legal and valid
in all respect. Apart from this, registered document are
having presumptive value in respect of due execution
and validity of the document. The evidence adduced
by the plaintiff is not suffi cient to say that the Sale
Deed is null and void document as same is executed
by playing fraud upon the executant Narayanamma.
Hence, in my considered view the Sale Deed dated
67 O.S.No.6922 of 2000
29.09.2000 is legal and valid in all respect. Since,
defendant No.1 had absolute right over the property
and she has executed Sale Deed in favour of defendant
No.7 and 8, the Sale Deed is binding upon the plaintiff
as 1 st defendant had authority to execute the Sale
Deed. Accordingly, additional Issue No.1 and 2 are
answered in the Negative.
32. Additional issue No.3 framed on
15.07.2011:- defendant No.7 and 8 have claimed
that suit is barred by limitation. The defendant No.7
and 8 claimed that since the relief of declaration is not
sought within 3 years from the date of execution of
Sale Deed, the suit is barred by limitation. It is
important to note that at the first instance the
purchasers were not parties to the suit and same has
been decreed. Thereafter, the executant of document
has challenged the judgment & decree and after
68 O.S.No.6922 of 2000
remand the defendants were impleaded. The
amendment goes back to date of presentation of the
suit. So, when amendment is made challenging the
execution of document it relate back to the date of the
filing of the suit and as such, it cannot be said that the
suit is barred by limitation. Therefore, there is no force
in the contention of the defendant No.7 & 8 that suit is
barred by limitation. Accordingly, this issue answered
in the Negative.
33. Issue No.4:- The issue is with respect of
suit being bad for non-joinder of necessary
parties. This issue is framed regarding contention
raised by 1 st defendant that suit is bad for non-joinder
of necessary parties as daughters of Narayanamma
were not impleaded. However, after filing of written
statement and after remand of suit the daughters of
Def.No.1 Narayanamma were impleaded as defendant
69 O.S.No.6922 of 2000
No.3 to 6 and as such, this issue does not survive for
consideration. Accordingly, I answer this issue holding
that all the necessary parties who are required to be
impleaded are party to this suit and suit is not bad for
non-joinder of necessary parties.
34. Issue No.3:- This issue is framed regarding
entitlement of relief of partition and share of plaintiff
herein. While answering issue No.1 and 2, I have
concluded that the suit property is the separate
property of defendant No.1. Sy.No.358 of Kalkere
Village is totally measuring 01-19-00, Kharab 00-02-00.
As per Ex.D.4 Sale Deed an area of 01-03-00 is sold in
favour of defendant No.7 and 8. As per Ex.D.28 an
area of 00-10-00 was sold in favour of defendant No.6
herein. So, totally 01-013-00 was sold by defendant
No.1 and what was remaining was 00-04-00 of land and
00-02-00 Kh i.e., totally 00-06-00. In the Sale Deed
70 O.S.No.6922 of 2000
Ex.D.28 it is mentioned that towards north of the
property sold to defendant No.6 that 00-06-00 was
remaining. It is important to note that on 15.12.2001
the property bearing No.358 katha No.358 of Kalkere
measuring 44 X 55 feet was gifted to the plaintiff
D.Munibeerappa. The document is denied but it is a
registered document executed by Def.No.1-
Narayanamma. In the said deed it is clearly mentioned
that towards south of the property gifted property of
Kanthamma who is defendant No.6, is situated. The
Gift deed has been attested by defendant No.2
Munipoojappa. So, one cannot say that this document
which is in favour of plaintiff and attested by defendant
No.2, executed by Def.No.1-Narayanamma is a
fraudulent document. No action is taken by plaintiff till
today challenging this Gift deed. So, remaining
property which was in Sy.No.358 is also transferred to
plaintiff herein. Hence, in my considered opinion in
71 O.S.No.6922 of 2000
Sy.No.358 nothing is left as defendant No.1 has
transferred/ alienated the same during her lifetime
only. Therefore, in my considered view the plaintiff is
not entitle for relief of partition & separate possession
of the suit schedule property. Since, plaintiff is not
entitle for relief of partition and separate possession
and in my considered opinion this issue is required to
be answered in the Negative.
35. Additional Issue No.3 dated 07.07.2010
and issue No.5:- While answering issue No.1 to 4
and additional issue No.1 and 2 and additional issue
No.3 framed on 15.07.2011, I have concluded that suit
schedule property is the self-acquired property of 1 st
defendant and she has sold the same in favour of
defendant No.7 and 8 as per Sale Deed dated
22.09.2000, in favour of defendant No.6 as per Sale
Deed dated 25.10.2000 and 4 gunta in favour of
72 O.S.No.6922 of 2000
plaintiff by gifting the same as per Ex.P.27. Therefore,
there is a nothing available to be partitioned. Hence,
relief of partition claimed by plaintiff is not at all
permissible. The plaintiff has sought for relief of
declaration that Sale Deed dated 29.09.2000-Ex.P.7/
Ex.D.4 is null and void and not binding upon the
plaintiff. While answering additional issue No.1 and 2, I
have concluded that Sale Deed is legal and valid and
plaintiff has failed to show that same is obtained by
playing fraud. Therefore, in my considered view the
plaintiff is not entitled for the relief claimed. The
decisions cited is not at all applicable to the case on
hand as executant of the document has not denied the
execution during the pendency of the suit or earlier.
Therefore, in my considered view, plaintiff is not entitle
for relief claimed, accordingly, I answered additional
issue No.3 and issue No.5 in the Negative holding that
plaintiff is not entitle for relief claimed.
73 O.S.No.6922 of 2000
36. Issue No.6 : In view of the discussions and
conclusion arrived at above issues, the suit is liable to
be dismissed. Considering the relationship of the
parties, remand of case awarding of cost is not
necessary. Accordingly, I proceed to pass the
following:-
ORDER
The suit of the plaintiff is dismissed.
Parties to bear their own cost.
(Dictated to the Stenographer Grade-III, transcript thereof
corrected, signed and then pronounced by me, in open Court, on
this the 15th day of January, 2025.)(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
BengaluruANNEXURE
I. List of witnesses examined on behalf of plaintiff:-
P.W.1 D. Munibeerappa
74 O.S.No.6922 of 2000II. List of witnesses examined on behalf of defendants:-
D.W.1 R. Virupaksha
D.W.2 B.S. Nanda
III. List of documents exhibited on behalf of plaintiff:-
Ex.P.1 Geneology tree
Ex.P.2 RTC
Ex.P.3 Mutation extract
Ex.P.4 to 6 Tax paid receipts
Ex.P.7 C/c of Sale deed dated 29.09.2000
Ex.P.8 The death certificate of Plaintiff's
father by name B.Muniyappa.
Ex.P.9 The death certificate of defendant No.1
Narayanamma.
Ex.P.10 Certified copy the judgment and
decree dated 01.09.2003.
Ex.P.11 Registered partition deed dated
03.12.2002.
Ex.P.12 Another registered partition deed
dated 03.12.2002.
Ex.P.13 Legal notice dated 29.08.2022/2023.
Ex.P.14 and Two postal receipts.
Ex.P.14(a)
Ex.P.15 Postal track consignment.
Ex.P.16 Unserved postal cover.
Ex.P.16(a) The legal notice found in Ex.P.16 postal
cover.
75 O.S.No.6922 of 2000
Ex.P.17 Digitally signed registered sale
agreement dated 27.02.2023.
Ex.P.18 The genealogical tree issued by the
village accountant.
Ex.P.19 Certified copy of the registered sale
deed dated 19.05.1977.
Ex.P.19(a) Typed copy of the sale deed dated
19.05.1977.
Ex.P.20 Identity card of the father of the
Plaintiff.
Ex.P.21 Certified copy of the order dated
13.12.2005 passed in RFA
No.137/2004.
Ex.P.22 Certified copy of the representation
submitted by the Plaintiff to the Joint
Director of Urban Planning Authority.
Ex.P.23 The reminder dated 06.04.2023 issued
by District Registrar.
Ex.P.24 to 7 photographs.
Ex.P.30
Ex.P.31 C.D pertaining to the 7 photographs.
Ex.P.32 Original discharge summary.
Ex.P.33 One RTC extract pertaining to Survey
No.358/1.
Ex.P.34 The digitally certified copy of gift deed
dated:12.04.2023.
Ex.P.35 The RPAD cover addressed to
Smt.Renukha Devi A.S.
Ex.P.36 Reply notice dtd:01.10.2023
03
76 O.S.No.6922 of 2000
Ex.P.37 The I.A.No.6 dated 30.10.2023
IV List of documents exhibited on behalf of defendants:
Ex.D.1 Copy of plaint in O.S.No.7393 of 2003
Ex.D.2 The notarized SPA
dated:27/28.11.2023 executed by
defendant No.7 in my favour.
Ex.D.3 Original registered sale deed
dated:19.05.1977 executed by
Chinnakka in favour of defendant
No.1 Narayanamma.
Ex.D.4 Original sale deed dated:29.09.2000
executed by defendant No.1
Narayanamma in favour of defendant
No.7 and 8.
Ex.D.5 The declaration affidavit
dated:29.09.2000.
Ex.D.6 Certified copy of the conversion order
dated:18.03.2023.
Ex.D.7 Certified copy of the survey sketch.
Ex.D.8 Certified copy of the Hissa Tippani.
Ex.D.9 Certified copy of the Pakka Book.
Ex.D.10 Certified copy of the Aakaar Band
register.
Ex.D.11 The register extract.
Ex.D.12 Certified copy of the order passed by
Deputy commissioner for Inams in
case No.163.
77 O.S.No.6922 of 2000
Ex.D.13 The endorsement dated:04.03.2023
and and 80.03.2023 issued by Tahasildar
Ex.D.14 and Assistant commissioner
respectively.
Ex.D.15 to 4 Certified copies of Manual RTC
Ex.D.18 extracts.
Ex.D.19 22 RTC extracts pertaining to
Sy.No.358/2 collectively marked.
Ex.D.20 Certified copies of 4 RTC extracts
collectively marked.
Ex.D.21 2 Certified copies of the mutation
and register extract.
Ex.D.22
Ex.D.23 2 E.C
and
Ex.D.24
Ex.D.25 Certified copy of the judgment and
decree dated:30.01.2019 passed in
O.S.7393/2003.
Ex.D.26 Certified copy of the written
statement filed in O.S. 7393/2003.
Ex.D.27 C/c of Gift deed dated 15.12.2001
Ex.D.28 Sale deed dated 25.10.2000
Ex.D.29 The original Special Power of Attorney
dated 01.04.2024(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
78 O.S.No.6922 of 2000
79 O.S.No.6922 of 2000
[ad_1]
Source link