Bangalore District Court
Muniraju Alias Munikariyappa vs Mallaiah Mallappa on 19 December, 2024
KABC010056502015 IN THE COURT OF THE XXXVII ADDL. CITY CIVIL & SESSIONS JUDGE (CCH-38), BENGALURU CITY. :PRESENT: Sri. Yashawanth Kumar, B.A.(Law), LL.B., LI Addl. City Civil & Sessions Judge, C/c XXXVII Addl. City Civil & Sessions Judge, (CCH-38),Bengaluru City. DATED This the 19th day of December 2024 O.S.No. 2141/2015 PLAINTIFF/S SRI. MUNIRAJU alias MUNIKARIYAPPA, S/O. MALLAIAH 2 MALLAPPA, AGED ABOUT 41 YEARS, R/AT. NO.14, 4TH CROSS, 2ND MAIN, 1ST FLOOR, SHIVANAGAR, RAJAJINAGAR, BANGALORE-10. (Pl By Sri. SR, Advocate) Versus DEFENDANT/S 1.SRI. MALLAIAH @ MALLAPPA S/O. LATE MUNIKRISHNAPPA, AGED ABOUT 66 YEARS, R/AT. NO.14, 4TH CROSS, 2ND MAIN, GROUND FLOOR, SHIVANAGAR, RAJAJINAGAR, BANGALORE-10. O.S.No.2141/2015 2 2:SMT. AKKAYYAMMA alias PARVATHAMMA, W/O. LAKSHMANA, D/O. MALLIAH @ MALLAPPA, AGED ABOUT 44 YEARS, R/AT. NO.90, NEAR GANAPATHI TEMPLE, KKP MAIN ROAD KONANAKUNTE VILLAGE BANGALORE-62. 3:SMT. HEMAVATHI W/O. SUBRAMANYA, D/O. MALLAIAH @ MALLAPPA, AGED ABOUT 30 YEARS, R/AT. KANNUR VILLAGE BIDARAHALLI HOBLI KANNUR POST BANGALORE EAST TALUK BANGALORE-149. 4. SMT. SHOBA, W/O. LATE H. RAMAKRISHNAIAH, AGED ABOUT 55 YEARS, 5. SMT. AKSHAYA ANAND, D/O. LATE H. RMAKRISHNAIAH, AGED ABOUT MAJOR YEARS, 6. SMT. SUCHITRA, W/O. LATE H. RAMAKRISHNAIAH, AGED ABOUT MAJOR YEARS, 7. SRI. AJAY DARSHAN RAMAKRISHNAIAH, S/O. LATE H. RAMAKRISHNAIAH, AGED ABOUT 32 YEARS, DEF. NO. 4 TO 7 ARE R/AT. NO. 24/1, 9TH MAIN ROAD, SHIVANAHALLI, RAJAJINAGAR, BENGALURU-10. O.S.No.2141/2015 3 (DfS No.1, 3, by Sri. KGS, Advocate) (Df No. 2 by Sri. CDP, Advocate) (DFS No.4 to 7, by Sri. NJR, Advocate) Date of Institution of the suit 6.3.2015 Nature of suit Declaration & Partition suit Date of commencement 17.02.2023 of recording of evidence. Date on which judgment 19.12.2024 was pronounced. Total Duration. Years Months Days 09 09 13 C/c. XXXVII ACCJ, BENGALURU O.S.No.2141/2015 4 JUDGMENT
This is a suit filed by the plaintiff for the relief of partition
and separate possession of his 1/4th share in the suit schedule
properties by declaring that the gift deed dt: 28/3/2014 and gift
deed dt: 11.6.2014 are null and void and not binding on the
plaintiffs share.
2. The case of the plaintiff in brief is as under:-
The plaintiff and defendant No.2 are the children from the
first wife and defendant No.3 is the daughter from the second
wife of defendant No.1. The suit properties were purchased by
defendant No.1 out of the funds generated from alienating the
ancestral properties inherited by his father Munikariyappa. On
the birth of plaintiff, he came a member of joint family and he
inherited the suit properties. The plaintiff and defendants No.1
to 3 constituted a Hindu Join family and they are in possession
and enjoyment of the suit schedule properties. The name of
defendant No.1 mutated in the revenue records as he is the
Kartha and eldest member of the family. No partition has taken
place between the plaintiff and defendants No.1 to 3. The
plaintiff is entitled for 1/4th share in the suit schedule
O.S.No.2141/2015
5properties. In the last week of January 2015 the plaintiff
demanded for partition. But the defendants are postponing the
same on one of the other reason. It appears that defendant No.1
without the knowledge and consent of the plaintiff has gifted
the suit schedule B properties to defendant No.3. The plaintiff is
not a party to the said gift deed. The defendant No.1 had no
independent right to gift the schedule B properties. The said gift
deeds are not binding on the plaintiff. Hence, this suit.
3. The defendant No. 2 has filed his written statement. She
has admitted the plaint averments. She has contended that she
is entitled for 1/4th share in the schedule A property and 1/3 rd
share in the schedule B properties.
4. The defendants No.1 and 3 have filed their written
statement. They have contended that the suit is not
maintainable. They have contended that in an oral arrangement
in the family in respect of schedule A property, it was divided in
to two parts and one portion given to plaintiff and defendant
No.2 and remaining half portion given to defendants No.1 to 3
and hence, the question of dividing the schedule A property
does not arise. The plaintiff has suppressed the materials fact of
oral division before the court. The suit in respect of schedule A
O.S.No.2141/2015
6
property is liable to be dismissed with cost. Schedule B
properties are the absolute and self-acquired properties of
defendant No.1. Those properties were purchased out of the
sale proceeds of the property of Smt. Lakshmamma who is the
second wife of defendant No.1. Hence, it is not available for
partition. Already defendant No.1 has gifted the schedule B
properties in favour of defendant No.3 through registered gift
deed dtd:11.6.2014. Now the schedule B properties have
become the absolute properties of defendant No.3. The plaintiff
cannot claim share in the said properties. One of the property
bearing Sy.No.31/1 of Ramapura village, Biderahalli Hobli was
standing in the name of Chinnanna the brother of first wife of
defendant No.1. After her death, the plaintiff and defendant
No.2 by colluding together obtained the katha and without the
knowledge and consent of defendant No.1 sold the same and
appropriated the consideration amount. In fact the schedule B
properties are the absolute properties of defendant No.1 and his
second wife Smt. Lakshmamma. The plaintiff and defendant
No.2 are fully aware of the gift deed executed by defendant No.1
and his wife in respect of schedule B properties. The plaintiff
has filed this false and frivolous suit. The suit valuation is not
O.S.No.2141/2015
7
proper and the Court fee paid is insufficient and hence, prayed
for dismissal of the suit.
5. On the basis of the above pleadings of the parties, the
following issues have been framed:
1. Whether the plaintiff proves that suit schedule properties
are the Joint Hindu undivided family properties of himself
and the defendants ?
2. Whether the plaintiff proves that he is entitled for 1/4th
share in the suit schedule properties?
3. Whether the plaintiff proves that the gift deed dated
28.03.2014 is not binding on his share?
4. Whether the defendants prove that there was oral
arrangement in the family of the plaintiff and themselves?
5. Whether the defendants prove that schedule-B properties
are self-acquired properties?
6. Whether the defendants prove that the defendant No.1
has gifted the schedule-B properties in favour of 3 rd
defendant under a registered gift deed dated 11.06.2014?
7. What order or decree?
Addl. Issue dt: 3/12/2015:
1. Whether the 2nd defendant proves that, she is entitled
for 1/4th of share in ‘A’ schedule property and 1/3 rd
share in ‘B’ schedule property along with the plaintiff
and 1st defendant?
6. In order to prove his case, the plaintiff has been examined
as PW 1 and got marked documents at Ex.P1 to P14. The
O.S.No.2141/2015
8
defendant No.1 has been examined as DW-1 and Spl.P.A. Holder
Defendant has been examined as Dw-2 and got marked Ex. D-1
to D-24.
7. Heard the arguments of the learned counsel for the plaintiff
and the arguments of the learned counsel for the defendants.
8. My answer to the above issues are as under:
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : In the Affirmative,
Issue No.4 : In the Negative,
Issue No.5 : In the Negative,
Issue No.6 : Partly in the Affirmative,
Addl. Issue No.1 : Partly in the Affirmative,
Issue No.7 : As per the final order,
for the following :-
REASONS
9. Issue No.1: The relationship between the parties is not
disputed. The defendant No.1 had 2 wives, the plaintiff and
defendant No.2 are the children from his first wife and defendant
No.3 is the daughter from his second wife.
10. It is the contention of plaintiff that the suit schedule
properties are the joint family properties. On the other hand, it
is contention of defendants No.1 and 3 that the suit schedule A
O.S.No.2141/2015
9
property has been already divided and schedule B properties are
the self-acquired properties of defendant No.1.
11. In order to prove his contention, the plaintiff has
examined himself as Pw-1 and got marked 14 documents as
Ex.P-1 to P-14. The certified copy of the release deed has been
marked as Ex. P-14. The plaintiff’s counsel argued that
plaintiff’s grand father Mallaiah S/o. Late Muni Kariyapppa
acquired 2 items in Sy.No. 30/2 of Shivanahalli village,
Yeshwanthpura Hobli under the registered release deed executed
by him on 20.10.1972, one measuring East to West 40 feet and
North to South 55 feet and another measuring East to West on
the Northern side 46 feet and on the Southern side 37 feet and
North to South 50 feet. Subsequently, Mallaiah S/o Muni
Kariyappa sold the extent measuring 45×25 feet in Sy.No.30/2
through a registered sale deed dt: 5.4.1978 for a sum of
Rs.8,000/-. From the above said sale consideration received by
Mallaiah S/o Muni Kariyappa, he had purchased item No.1 and
2 of schedule B properties through two separate sale deeds
dt:27.5.1978. Therefore, it is his contention that schedule B
properties are the joint family properties of defendant No.1. It is
his contention that Sy.No. 30/2 of Shivanahalli village was the
O.S.No.2141/2015
10
ancestral property of defendant No.1 and the suit schedule
properties have been purchased by selling a portion of property
in Sy.No.30/2 and therefore the suit schedule properties are the
ancestral and joint family properties.
12. In order to support the contention, the plaintiff has
produced the certified copy of the release deed dt: 20.10.1972.
It is marked as Ex.P-14, it shows that it has been executed by
defendant No.1 Mallaiah S/o Late Muni Kariyappa in favour of
his father’s brother S.M.Hanumaiah, wherein it is stated that
Sy.No.30/2 of Shivanahalli village is the ancestral property and
they were in a joint family and the defendant No.1 separated
from the joint family by taking a site measuring East to West 40
feet and North to South 55 feet having boundaries, East: Road,
West: Item No.2 taken by defendant No.2 in the said release
deed. North: S.M.Hanumaiah’s house and vacant property,
South: Siddagangamma’s house and Vishwanathappa’s site.
Another property taken by defendant No.1 in the said release
deed is property measuring East to West on the northern side 46
feet and southern side 37 feet, North to South 50 feet having
boundaries East: item No.1 taken by defendant No.1 in the said
O.S.No.2141/2015
11
release deed, West: road, North: Narayanappa’s site, South:
Vishwanathappa’s site.
13. This release deed clearly shows that the releasor and
the releasee were in a joint family and the releasor i.e., the
defendant No.1 has separated from the joint family by taking the
above two properties in the ancestral properties. The recitals in
this document clearly show that the properties taken by
defendant No.1 under the release deed were the ancestral
properties.
14. Ex.P-11 is the sale deed executed by defendant No.1 in
favour of Smt. K.Padmavathi G Pai in respect of property
measuring 45×25 feet in Sy.No.30/2 of Shivanhalli village with
boundaries East: road, West: house constructed in the site sold
to Thimmappa, North: S.M.Hanumanthaiah’s house and vacant
property. South by site and house retained by defendant No.1.
The total consideration amount received by defendant no.1
under the sale deed of Rs.8,000/-.
15. After the sale of above said properties, within two
months, the defendant no.1 has purchased Item No.1 and 2 of
schedule B properties herein. Ex.P-12 is the sale deed dt:
27.5.1978 executed in favour of defendant No.1 in respect of
O.S.No.2141/2015
12Sy.No.28/2 measuring 34 guntas having boundaries East:
Vaderahalli boundary, West Raja Kaluve, North: Venkatamma’s
land, South; Lakshaman Sharma’s land. There is one more sale
deed along with Ex.P-12. It is also dated: 27.5.1978. The
document number is 584/1978-79, it shows that Mallaiah has
purchased 6 guntas of land in Sy.No.28/3, Bileshivale village
having boundaries East: Vaderahalli boundary, West:
Rajakaluve, North: land sold to defendant No.1. South: Land of
Ginagappa for a consideration of Rs.800/-. Ex.P-12 sale deed
bearing document No.583/1978-79 it appears that it is not a
complete document and sale consideration amount cannot be
made-out from the said document. However the defendants have
produced the original of the said sale deed, it has been marked
as Ex.D-1. It shows it has been purchased for a consideration of
Rs.5,700/-. Ex.D-2 is the original sale deed referred above as
document No.584/1978-79.
16. On going through these documents it appears that the
property sold by defendant No.1 in Ex.P-11 sale deed is a
portion of the property he received in the release deed as per
Ex.P14 and within two months from the date of sale of portion of
O.S.No.2141/2015
13
property in Sy.No.30/2, the defendant No.1 has purchased the
properties under the sale deed as per Ex.D-1 and D-2.
17. In their written statement, the defendant No.1 and 3
have contended that in an oral arrangement in the family in
respect of schedule A property, it was divided into two portions,
one portion was given to plaintiff and defendant No.2 and
remaining half portion was given to defendant No.1 and 3 and
therefore the question of partition of the schedule A property
does not arise.
18. The defendant No.1 i.e., father has been examined as
Dw-1 and in his cross-examination, he has stated that he
purchased schedule A property about 40 years back from
Hanumaiah. He has denied that schedule A property is an
ancestral property. He has contended that it is a property
purchased by him and therefore it is his self-acquired property.
But defendants No.1 and 3 have not produced any document to
show that schedule A property was purchased by defendant
No.1. He has not stated the date of purchase of said property
and he does not know the extent of said property. Moreover,
there is no pleading by defendants No.1 and 3 that schedule A
property was the self purchased property of defendant No.1. The
O.S.No.2141/2015
14
evidence shows that the defendant No.1 has got two properties
in Sy.No.30/2 under the release deed and it is clearly stated in
the release deed that it was an ancestral property. Therefore, it
cannot be said that the family of defendant No.1 was not having
joint family nucleus to acquire the schedule A property. Under
such circumstances, even if it is accepted that schedule A
property was purchased by defendant No.1, it cannot be
disbelieved that it has been purchased from the joint family
nucleus.
19. In a decision reported in AIR 2003 SUPREME COURT
3800 (D.S. Lakshmaiah & Anr vs L. Balasubramanyam & Anr)
The legal principle, therefore, is that there is no
presumption of a property being joint family
property only on account of existence of a joint
Hindu family. The one who asserts has to prove
that the property is a joint family property. If,
however, the persons so asserting proves that
there was nucleus with which the joint family
property could be acquired, there would be
presumption of the property being joint and the
onus would shift on the person who claims it to
O.S.No.2141/2015
15
be self acquired property to prove that he
purchased the property with his own funds and
not out of joint family nucleus that was available.
It is held that when there is joint family nucleus, it is to be
accepted that the property acquired was by using such joint
family nucleus. In the present case it appears that there was
joint family nucleus, therefore onus shifts on defendant no.1
and 3 to show that the defendant no.1 has acquired the said
property from his own income. But, the defendant no.1 has 3
have not produced any such evidence before the court.
20. The defendants No.1 and 3 have stated in their written
statement that there was oral partition between the plaintiff and
defendant in respect of schedule A property. But there is no
evidence to prove the oral partition between plaintiff and
defendants. All these circumstances, shows that schedule A
property is an ancestral property.
21. As far as schedule B property is concerned, the release
deed clearly shows that the property came to defendant No.1
was an ancestral property. Though the plaintiff was not born at
the time of said release deed, subsequently he born. Prior to the
birth of plaintiff, the defendant No.1 has not disposed the
O.S.No.2141/2015
16
properties he got in the release deed. Therefore, on the birth of
his son, it becomes the joint family property of both father and
son. Under such circumstances, it cannot be said that the
properties received by defendant No.1 under the release deed
became his self-acquired properties. On the other hand it is to
be accepted that those properties became the ancestral and
joint family properties.
22. The defendant no.1 has sold a portion of the property,
he got in the release deed on 5.4.1978 for Rs.8,000/-,
immediately thereafter i.e, on 27.5.1978 he has purchased
schedule B properties for Rs.5,700/- and Rs.800/- respectively.
The proximity of time between the sale deed as per Ex.P-11 and
sale deeds as per Ex.P-12 i.e., Ex.D-1 and D-2 clearly shows
that defendant No.1 has purchased Item No.1 and 2 of schedule
B properties from consideration amount received by selling a
portion of ancestral properties. Thus, Item No.1 and 2 of the
schedule B property also to be considered as ancestral
properties. In view of above discussions, I answer Issue No.1 in
the Affirmative.
23. Issue No. 6:- There is no dispute that defendant No.1
has executed registered gift deed dt: 11.6.2014 in respect of
O.S.No.2141/2015
17
schedule B properties in favour of defendant No.3. The certified
copy of the said gift deed has been marked by the plaintiff as
Ex.P-7 and original gift deed has been marked as Ex.D-4.
24. Now the defendant has also gifted half portion in
schedule A property to defendant No.3 and the original gift deed
in respect of the same has been marked as Ex.D-5. The
execution of the above two gift deeds are not disputed by the
plaintiff. But it is contended that those gift deeds are not binding
on the share of the plaintiff. In view of my answer to Issue No.1,
the defendant No.1 had no exclusive right to execute the gift
deed in respect of schedule A and B properties and he could
have gifted only in respect of his share in those properties.
Accordingly, I answer Issue No.6 partly in the Affirmative.
25. Issue No. 3 :- In view of my answer to Issue No1, the
defendant No.1 had no exclusive right to execute the gift deed
dt:28.3.2014 in respect of the schedule B properties and gift
deed dt: 11.6.2014 in respect of half portion of schedule A
property in favour of defendant No.3. Therefore, the gift deeds
executed by the defendant No.1 in respect of entire schedule B
properties and half portion of schedule A property are not
O.S.No.2141/2015
18
binding on the share of plaintiff. Therefore, I answer Issue No.3
in the Affirmative.
26. Issue No. 4:- The defendants No.1 and 3 have
contended that there was an oral arrangement in the family in
respect of schedule A property. But there is no evidence to prove
the same. Therefore, I answer Issue No.4 in the Negative.
27. Issue No. 5:- While discussing Issue No.1, I have come
to the conclusion that schedule B properties are the properties
acquired by defendant No.1 from the funds accrued by sale of
ancestral properties. Therefore, the schedule B properties
became the ancestral and joint family properties of plaintiff and
defendants and it cannot be contended that those properties are
the self-acquired properties of defendant No.1. Hence, I answer
Issue No.5 in the Negative.
28. Issue No. 2:- I have concluded that both schedule A
property and schedule B properties are the ancestral joint family
properties of plaintiff and defendants. The plaintiff and
defendants No.1 to 3 are the joint family members. In view of the
amended Sec.6 of Hindu Succession Act, the daughters are also
entitled for equal share in the ancestral properties. Hence, the
plaintiff, defendant No.1, defendant No.2 and defendant No.3 are
O.S.No.2141/2015
19
entitled for equal share in the suit schedule properties i.e., 1/4 th
share each. Hence, I answer Issue No. 2 in the Affirmative.
29. Addl. Issue No. 1:- The defendant No.1 has contended
that she is entitled for 1/4th share in the schedule A property
and 1/3rd share in the schedule B properties. But there is no
basis to claim 1/3rd share in the schedule B properties. But she
is entitled for 1/4th share in both schedule A properties and
schedule B properties. Accordingly, I answer Addl. Issue No.1
partly in the Affirmative.
30. Issue No. 7:- In view of my above discussions, I proceed
to pass the following:
ORDER
The suit of the plaintiff is hereby decreed.
The plaintiff, the defendant No.1, defendant No.2
and defendant No.3 are entitled for 1/4th share each in
the suit schedule A property and schedule B properties
by metes and bounds.
Considering the relationship between the parties, they
shall bear their own costs.
Draw preliminary decree accordingly.
The parties shall appear before the Court for Final
decree proceedings on 18.1.2025. The Office is directed
to register FDP case and put up the file by 18.1.2025.
O.S.No.2141/2015
20(Dictated to the stenographer grade-I, transcribed and typed by her,
corrected and then pronounced by me in open court, this the 19th Day of
December 2024)(YASHAWANTH KUMAR)
C/c. XXXVII ADDL. CITY CIVIL JUDGE,
(CCH-38), BENGALURU.
Schedule A Property
All the piece and parcel of the property bearing No. 14, 2 nd
Main, 4th Cross, Shivanahalli, Bengaluru-560010, measuring
East to west : 44 feet and North to South: 30 feet, bounded by;-
East : Road,
West : Private property,
North : Private property,
South : Krishnegowda’s property,Schedule B Property
Item No.1,All the piece and parcel of the Agricultural property bearing
Sy. No. 28/2, of Bileshivale village, Bidarahalli Hobli, Bengaluru
East Taluk and Bengaluru District, in all measuring 0 acre 34
guntas bounded by;-
East : Vaderahalli village boundary,
West : Land bearing Sy. No. 32,
North : Land bearing Sy. No. 28/1,
South : Land bearing Sy. No. 28/1,
Item No.2 herein.
O.S.No.2141/2015
21Item No.2,
All the piece and parcel of the Agricultural property bearing
Sy. No. 28/3, of Bileshivale village, Bidarahalli Hobli, Bengaluru
East Taluk and Bengaluru District, in all measuring 0 acre 6
guntas bounded by;-
East : Vaderahalli village boundary,
West : Land bearing Sy. No. 32,
North : Land bearing Sy. No. 28/2,
( i.e., item No. 1 herein)
South : Land bearing Sy. No. 28/4 & 28/5.
ANNEXURE
List of witnesses examined on behalf of the plaintiff/s:
PW-1 – Muniraju
Documents marked on behalf of the plaintiff/s:
Ex.P-1 Affidavit of genealogy Ex.P-2 Katha Certificate Ex.P-3 Katha Extract Ex.P-4 Property tax receipt Ex.P-5 RTC Extracts for the year 2012-2013 and 6 Ex.P-7 Certified copy of the registered gift deed dated 25.03.2014 Ex.P-8 RTC Extracts for the year 2013-2014 and 9 Ex.P-10 Mutation Register Extract
Ex.P-11 Certified copy of the registered sale deed
dated 05.04.1978
O.S.No.2141/2015
22Ex.P-12 Certified copy of the registered sale deed
dated 27.05.1978
Ex.P-13 Death Certificate of my mother
Jayamma
Ex.P-14 Certified copy of the release deed dated
20.10.1972List of witnesses examined on behalf of the Defendant/s:
DW-1. Mallappa @ Mallaiah
DW-2. L.KeshavaDocuments marked on behalf of the Defendant/s:
Ex.D-1 Original registered sale deed dated
27.05.1978
Ex.D-2 Original registered sale deed dated
27.05.1978
Ex.D-3 Katha registration document dated
28.05.2005
Ex.D-4 Original registered gift deed dated
25.03.2014
Ex.D-5 Original registered gift deed dated
11.06.2014
Ex.D-6 Encumbrance certificate
Ex.D-7 Mutation register extract
Ex.D-8 Katha certificate dated 23.09.2014
Ex.D-9 Katha extract dated 23.09.2014
Ex.D-10 Property tax receipt
Ex.D-11 Katha certificate dated 13.10.2014
Ex.D-12 Katha extract dated 13.10.2014
Ex.D-13 RTC Extract of Sy.No.28/2
Ex.D-14 RTC Extract of Sy.No.28/3
O.S.No.2141/2015
23Ex.D-15 SPA executed by defendant no.2
Akkayamma @ Parvathamma
Ex.D-16 Digitally signed copy of the registered
sale deed dated 04.03.2005.
Ex.D-17 RTC extracts of Sy.No.58/5 of Kallodu
to Ex. Village.
D-21 Ex.D-22 Mutation Register Extract in MR.No.22/2004-2005.
Ex.D-23 Death Certificate of Smt.Jayamma.
Ex.D-24 School Transfer Certificate of
Hemalatha.H.
(YASHAWANTH KUMAR)
C/c. XXXVII ADDL. CITY CIVIL JUDGE,
(CCH-38), BENGALURU.