1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2021
PRESENT
THE HON'BLE Mr. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
R.F.A. No.1570/2019
BETWEEN:
H. JAYAMMA
SINCE DEAD BY LRS
1. SRI. P. DHANARAJ
S/O. LATE V. PAPANNA
& H. JAYAMMA
AGED ABOUT 60 YEARS
NO. 2, SEVEN HILLS
SATISH NILAYA, 4TH FLOOR
1ST MAIN, TALAKAVERI LAYOUT
AMRUTHAHALLI
BANGALORE - 560 092.
2. SRI. P. BABU
S/O. LATE V. PAPANNA
& H. JAYAMMA
AGED ABOUT 58 YEARS
NO. 71 B1, AREHALLI
GUDDADAHALLI
BASHETTIHALLI POST
DODDABALLAPUR TALUK
BANGALORE RURAL - 561 203.
3. SRI. P. GIRISH
S/O. LATE V. PAPANNA
2
& H. JAYAMMA
AGED ABOUT 52 YEARS
NO. 2, SEVEN HILLS
SATISH NILAYA, 4TH FLOOR
1ST MAIN, TALAKAVERI LAYOUT
AMRUTHAHALLI
BANGALORE - 560 092 ... APPELLANTS
(BY SRI. P.S. RAJAGOPAL, SENIOR COUNSEL FOR
SRI. G.S. VENKAT SUBBA RAO, ADVOCATE)
AND:
1. H. THIPPA REDDY
S/O. LATE H. M. HANUMA REDDY
AGED ABOUT 82 YEARS
SAIKRUPA, CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
2. R. SATHYANARAYANA REDDY
S/O. LATE H. M. HANUMA REDDY
AGED ABOUT 79 YEARS
R/O. CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
3. VENKATESH REDDY
S/O. LATE H. M. HANUMA REDDY
AGED ABOUT 72 YEARS
R/O. CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
SRI. ANANTH RAM REDDY
SINCE DEAD BY HIS LRS
4. SMT. SUMA REDDY
D/O. LATE ANANTHARAM REDDY
3
AND SMT. NAGAVENI
AGED ABOUT 37 YEARS.
5. SMT. A. SOUMYA REDDY
D/O. LATE ANANTHARAM REDDY
AND SMT. NAGAVENI
AGED ABOUT 22 YEARS.
6. SMT. DEENA
W/O. LATE ANANTHARAM REDDY
AGED ABOUT 55 YEARS.
7. SRI. A. SANDEEP REDDY
S/O. LATE ANANTHARAM REDDY
AND SMT. M. DEENA
AGED ABOUT 34 YEARS.
4 TO 7 ARE R/O CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
8. SMT. N. K. NAGAVENI
D/O. LATE SHARADAMMA
AGED ABOUT 59 YEARS
R/O. CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
9. SMT. N. K. JAYANTHI
D/O. LATE SHARADAMMA
AGED ABOUT 49 YEARS
DODDANEKKUNDI POST.
10. SRI. N. K. VASUDEV REDDY
S/O. LATE SHARADAMMA
AGED ABOUT 68 YEARS
NO. 99, MAHESWARI NILAYA
DODDANEKKUNDI POST.
BANGALORE - 560 037.
4
11. SRI. N. K. BABU REDDY
S/O. LATE SHARADAMMA
AGED ABOUT 52 YEARS
NO. 99, MAHESWARI NILAYA
DODDANEKKUNDI POST.
BANGALORE - 560 037.
12. SMT. N.K. KAMALAKSHAMMA
D/O. LATE SHARADAMMA
AGED ABOUT 70 YEARS
13. SMT. N. K. SUDHA
D/O. LATE SHARADAMMA
AGED ABOUT 65 YEARS.
14. SMT. N. K. GOWARAMA
D/O. LATE SHARADAMMA
AGED ABOUT 49 YEARS
12 TO 14 ARE R/O HOODI POST
HOODI, BANGALORE - 560 037.
15. SMT. N. K. LAKSHMI
D/O. LATE SHARADAMMA
AGED ABOUT 57 YEARS
DODDANEKKUNDI POST
BANGALORE - 560 037.
16. SMT. N. K. MANU
D/O. LATE SHARADAMMA
AGED ABOUT 55 YEARS
DODDANEKKUNDI POST
BANGALORE - 560 037.
17. SRI. P. BABU
S/O. LATE VIJAYAMMA
AGED ABOUT 52 YEARS
ANANTHARAM REDDY LAYOUT
MARATHAHALLI POST
CHINNAPANAHALLI
BANGALORE - 560 037.
5
18. SMT. P. GAYATHRI
D/O. LATE VIJAYAMMA
AGED ABOUT 49 YEARS
ANANTHARAM REDDY LAYOUT
MARATHAHALLI POST
CHINNAPANAHALLI
BANGALORE - 560 037.
19. SRI. P. NATARAJ
S/O. LATE VIJAYAMMA
AGED ABOUT 58 YEARS
ANANTHARAM REDDY LAYOUT
MARATHAHALLI POST
CHINNAPANAHALLI
BANGALORE - 560 037.
20. SRI. P. LAKSHMINARAYAN REDDY
S/O. LATE. PEDHAKKA
AGED ABOUT 77 YEARS
NO. 13, CHINNAPANAHALLI
DODDANEKKUNDI POST
BANGALORE - 560 037.
21. SMT. P. NAGAMMA
D/O. LATE SAVITHRAMMA
C/O. NAGARAJ
AGED ABOUT 62 YEARS
ANANTHARAM REDDY LAYOUT
MARATHAHALLI POST
CHINNAPANAHALLI
BANGALORE - 560 037.
22. SMT. P. CHANDRA
D/O. LATE SAVITHRAMMA
C/O. NAGARAJ
AGED ABOUT 60 YEARS
ANANTHARAM REDDY LAYOUT
MARATHAHALLI POST
6
CHINNAPANAHALLI
BANGALORE - 560 037.
23. SMT. SUMA REDDY
D/O. LATE ANANTHARAM REDDY
AND SMT. N. K. NAGAVENI
AGED ABOUT 41 YEARS
CHINNAPANAHALLI
BANGALORE - 560 037.
24. SMT. A. SOWMYA REDDY
D/O. LATE ANANTHARAM REDDY
AND SMT. N. K. NAGAVENI
AGED ABOUT 39 YEARS
CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
25. SMT. M. DEENA
W/O. LATE ANANTHARAM REDDY
AGED ABOUT 59 YEARS
CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
26. SRI. A. SANDEEP REDDY
S/O. LATE ANANTHARAM REDDY
AND SMT. M. DEENA
AGED ABOUT 38 YEARS
CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
27. SRI. L. V. RAJU
S/O. LATE R. L. RAJU
AGED ABOUT 81 YEARS
R/A NO. 76, RANGA RAO ROAD
SHANKARAPURAM
BANGALORE - 560 004.
7
28. SMT. N. A. HEMAVATHY
D/O. N. H. ANANTHA REDDY
MAJOR.
29. SMT. N. A. NALINA
D/O. N. H. ANANTHA REDDY
MAJOR.
30. SMT. N. A. KAVITHA
D/O. N. H. ANANTHA REDDY
MAJOR.
27 TO 30 ARE R/A NO. 668, 14TH CROSS
13TH MAIN ROAD, 2ND PHASE
J. P. NAGAR
BANGALORE - 560076.
31. SRI. S. NAGENDRA BABU
S/O. H. SATHYANARAYANA REDDY, MAJOR
R/A. HANUMAREDDY LAYOUT
CHINNAPPANAHALLI
DODDANEKKUNDI POST
BANGALORE - 560037.
32. SRI. T. VIJAYA KUMAR @ VIJAYA BABU
S/O. H. THIPPA REDDY, MAJOR
R/A. SAI KRUPA, HANUMA REDDY LAYOUT
CHINNAPPANAHALLI
DODDANEKKUNDI POST
BANGALORE - 560037.
33. SRI. G. V. CHANDRASHEKAR
S/O. G. R. VENKATASWAMY REDDY
MAJOR, R/O GUNJUR GRAMA
VARTHUR POST
BANGALORE - 560087.
34. M/S. ROHAN ASSOCIATES
PRADEEP CHAMBERS
813, BHANDARKAR INSTITUTE ROAD
PUNE 411 004.
8
REP. BY ITS PARTNER
MR. SANJAY KUSHALCHAND LUNKAND
ALSO AT NO. 1201, 1ST FLOOR
DIVYA SHAKTI, 100' ROAD
INDIRANAGAR
BANGALORE - 560 038.
35. SRI. SANJAY KUSHALCHAND LUNKAD
PARTNER, M/S. ROHAN ASSOCIATES
NO. 1201, 1ST FLOOR, DIVYA SHAKTI
100' ROAD, INDIRANAGAR
BANGALORE - 560 038.
36. M/S. GOODRICH AEROSPACE SERVICES PVT. LTD.
SY. NO. 14/1 AND 15/1
MARUTHI INDUSTRIAL ESTATE
PHASE - II, HOODI VILLAGE
WHITEFIELD, K. R. PURAM HOBLI
BANGALORE - 560 048.
REP. BY ITS VICE PRESIDENT
MR. CHRISTOPHER ANIL RAO.
SRI. G. V. LAKSHMIKANTH RAJU
SINCE DEAD BY LRS
37. SMT. B. SHASHIREKAMMA
W/O. LATE LAKSHMIKANTH RAJU
AGED ABOUT 78 YEARS.
38. SRI. V. L. MUKUNDARAJU
S/O. LATE LAKSHMIKANTH RAJU
AGED ABOUT 50 YEARS.
39. SRI. V. L. RAJESHWARI
D/O. LATE LAKSHMIKANTH RAJU
AGED MAJOR.
40. SRI. V. L. JAYASHREE
D/O. LATE LAKSHMIKANTH RAJU
AGED MAJOR.
9
37 TO 40 ARE R/AT NO. 9/1
28TH CROSS, KILARI ROAD
BANGALORE - 560003.
41. SMT. VANAMALA
D/O. H. HANUMA REDDY
W/O. LATE RAMACHANDRA REDDY
AGED ABOUT 65 YEARS
CHINNAPANAHALLI, MARATHAHALLI
BANGALORE - 560037.
42. SMT. SARASAMMA
D/O. H. HANUMAN REDDY
W/O. LATE RAMACHANDRA REDDY
AGED ABOUT 75 YEARS
RESIDING AT KOLAR, NEAR RTO OFFICE
563 101.
43. SRI. A. ANNADANAPPA
S/O. LATE R. A. SAGANABASAPPA, MAJOR
R/A NEW THIPPASANDRA
BANGALORE - 560 075.
44. SRI. K. ASHWATH
S/O. SRI. S. KRISHNAPPA, MAJOR
C/O. MUNITHAYAPPA BUILDING
HOODI VILLAGE
BANGALORE - 560048.
45. SRI. H. B. SUDHIR
S/O. SRI. H. S. BASAVARAJAPPA
AGED ABOUT 55 YEARS
R/A. NO. 33, BASAVA KRUPA
NANDIDURG ROAD, JAYAMAHAL
BANGALORE - 560046.
46. SRI. N. SRINIVASA REDDY
S/O. LATE T. NARAYANA REDDY
AGED ABOUT 76 YEARS
R/A. NO. 89, 4TH CROSS
10
GOKULA 3RD STAGE
MYSORE - 570 002.
47. SRI. N. THIMMA REDDY
S/O. LATE T. NARAYANA REDDY
AGED ABOUT 73 YEARS
R/A NO. 57, 4TH MAIN
DOMLUR 2ND STAGE
BANGALORE - 560 071.
48. SRI. N. GOPAL REDDY
S/O. LATE T. NARAYANA REDDY
AGED ABOUT 66 YEARS
R/A NO. 2, MUTHASANDRA VIA VARTHUR
BANGALORE - 560 087.
49. SRI. P. VENKATESHWARA RAO
S/O. SRI. P. SURANNA
AGED ABOUT 49 YEARS
R/A NO. 384/ A, SINDURA APARTMENTS
RMV II STAGE, II BLOCK
BANGALORE - 560 094.
50. SRI. G. K. SURESH
S/O. G. T. KRISHNAPPA REDDY
AGED ABOUT 41 YEARS
R/O. GUNJUR VILLAGE, VARTHUR
BANGALORE - 560 087.
51. M/S. VIJETHA CONSTRUCTIONS
A PARTNERSHIP FIRM
NO. 13/2, OPP : PRESTIGE OZONE
WHITEFIELD
BANGALORE - 560 066
REP. BY ITS PARTNER
SRI. B. SREEDHAR.
52. SMT. KAMALAMMA
W/O. SRI. H. THIPPA REDDY
R/A NO. 22, "SAI KRUPA"
11
CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560037.
53. SRI. T. MURALIDHAR
S/O. SRI. H. THIPPA REDDY
R/A. NO. 23, R. J. GARDEN, I CROSS
ANANTH NAGAR, CHINNAPANAHALLI
MARATHAHALLI POST
BANGALORE - 560 037.
54. SRI. T. KIRAN KUMAR
S/O. SRI. H. THIPPA REDDY
R/A NO. 1/6, RAJ PALYA, HOODI VILLAGE
K. R. PURAM HOBLI
BANGALORE - 560 048.
55. MAHAVEER PROPERTIES
MAHAVEER BOWER - II
REP. BY ITS PROP : SRI. P. SATHYA SHEKAR
NO.1, MAHAVEER TOWERS
3RD FLOOR, 24TH MAIN, JP NAGAR 5TH PHASE
BANGALORE - 560 078.
56. SRI. RAJEEV KUMAR GUPTHA
FATHER'S NAME NOT KNOWN
TO THE PETITIONER, MAJOR
R/AT : FLAT NO. 301, 2ND FLOOR.
57. SMT. NIDHI GUPTHA
W/O. SRI. RAJEEV KUMAR GUPTHA, MAJOR
R/A : FLAT NO. 301, 2ND FLOOR.
58. DR. HIREMATH VAMADEVAIAH
S/O. SRI. H. M. PANCHAKSHARAIAH MAJOR
R/A : FLAT NO. 404, 4TH FLOOR.
59. SRI. T. SUNIL KUMAR
S/O. SRI. T. PRASAD
AGED ABOUT 47 YEARS.
12
60. SMT. T. N. L. SHILPA
W/O. SRI. T. SUNIL KUMAR, MAJOR
R/A : NO. 203, 2ND FLOOR.
61. SRI. K. MOHAN DAS
S/O. SRI. D. KRISHNA VADIYAR
AGED ABOUT 73 YEARS
R/AT : NO. 402, 4TH FLOOR.
62. SRI. AMITHAVA PAUL
S/O. SRI. BABUL PAUL
AGED ABOUT 45 YEARS
R/A : NO. 402, 4TH FLOOR.
63. SRI. R. PADMANABHAN
S/O. SRI. S. RAJAGOPAL
AGED ABOUT 51 YEARS
R/A : FLAT NO. 102, I FLOOR.
64. SRI. A. K. RAMANJALU
S/O. LATE GUNASHEKARAN
AGED ABOUT 51 YEARS
R/A : FLAT NO. 104, I FLOOR.
65. SRI. SRIKANTH HALLA VENKATA
NAGESWAR RAO A
AGED ABOUT 41 YEARS
R/A : FLAT NO. 302, 4TH FLOOR.
66. SRI. VEGI SRINIVAS
FATHER'S NAME NOT KNOWN TO PETITIONER
AGED ABOUT 51 YEARS
R/A : FLAT NO. 404, 4TH FLOOR.
67. SRI. ANIL KUMAR ATNURKAR
S/O. SRI. DINAKAR RAO ATNURKAR
AGED ABOUT 49 YEARS
R/A : NO. 304, 3RD FLOOR.
13
68. SRI. S. LINGESH KUMAR
S/O. SRI. M. SHIVA PERUMAL, MAJOR
R/A : NO. 201, 2ND FLOOR.
69. SRI. JAYAKISHORE PAGADALA
S/O. SRI. P. VEERARAGHAVA RAO, MAJOR
R/A : NO. 202, 2ND FLOOR.
55 TO 69 IN THEIR RESPECTIVE FLATS AT
MAHAVEER BOWER - II, CMC KHATA NO. 100
K. T. CHINNAPPANAHALLI
K. R. PURAM HOBLI
BANGALORE EAST TALUK - 560036.
70. DR. T. N. ACHAIAH
S/O. LATE SRI. T. M. NANJAPPA
AGED ABOUT 69 YEARS
R/A : MAHIL SAMAJIA ROAD
VIRAJPET 571 218.
(KODAGU DISTRICT)
71. SMT. CHENANDA NIRMALA MUDAPPA
W/O. LATE SRI. C. A. MUDAPPA
AGED ABOUT 83 YEARS
R/A : NO. 228, 5TH CROSS ROAD
1ST MAIN ROAD, DOMLUR LAYOUT
BANGALORE - 560 071.
72. SRI. P. M. ACHAIAH
S/O. SRI. P. R. MUTHAPPA
AGED ABOUT 49 YEARS.
73. SRI. P. G. MUTHAPPA
S/O. SRI. P. A. GANAPATHI
AGED ABOUT 84 YEARS.
72 & 73 R/A : 3367/5, 8TH CROSS
13TH MAIN, HAL II STAGE
BANGALORE - 560 008.
14
74. M/S. ROMA BUILDERS & DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO. 858, 2ND MAIN ROAD
'C' BLOCK, AECS LAYOUT
KUNDALAHALLI
BANGALORE 560 037.
REP. BY ITS MANAGING PARTNER
SMT. T. R. L. PADMAVATHI.
75. SRI. MEDIDIAN NAGAVENKATA CHANDRA MOHAN
MAJOR, S/O. VEERABHADRACHARAYALU
R/A : FLAT NO. 104,
GROUND FLOOR.
76. SRI. MAJETY SURYANARAYANA MURTHY
S/O. SRI. UPENDRA RAO
AGED ABOUT 51 YEARS.
77. SMT. GOKAVARAPU LAKSHMI NAGA VENKATA SARITHA
AGED ABOUT 52 YEARS
W/O. SRI. MAJETY SURYANARAYANA MURTHY.
76 & 77 ARE R/AT : FLAT NO. 204, 1ST FLOOR.
78. SRI. PALICHARLA SAREEN KUMAR REDDY
S/O. SRI. P. VENUGOPALA REDDY, MAJOR
R/A : NO. 303, 3RD FLOOR.
79. SRI. BACHUPALI AMARENDRA
S/O. SRI. B. CHALAPATHI RAO, MAJOR
R/A : NO. 103, GROUND FLOOR.
80. SRI. RASOJU VEERABHADRACHARI
S/O. SRI. ESHWARAIAH MAJOR
R/A : NO. 105, GROUND FLOOR.
81. SMT. RADHA H. GOWDA
W/O. LATE SRI. HOMBE GOWDA, MAJOR
R/A : NO. 304, 3RD FLOOR.
15
82. SRI. LINGA HARIKRISHNA PRASAD
S/O. LATE SRI. VENKATESWARA RAO, MAJOR
R/A : FLAT NO. 203, 3RD FLOOR.
74 TO 82 ARE ALL IN THEIR RESPECTIVE FLATS
AT ROMA PEARL APARTMENTS
SY. NO. 10/1, CHINNAPPANAHALLI VILLAGE
K. R. PURAM HOBLI
BANGALORE EAST TALUK - 560036.
83. SRI. B. V. RADHAKRISHNA
S/O. LATE SRI. MAHADEV BHAT, MAJOR
R/A : NO. 562, AECS LAYOUT
KUNDALAHALLI, K. R. PURAM HOBLI
BANGALORE SOUTH TALUK - 560036.
84. SRI. S. R. VENKATESH
S/O. LATE RAMESH
AGED ABOUT 59 YEARS
R/A : NO. 7, SOWMAY LAYOUT
KONENA AGRAHARA HAL POST
BANGALORE - 560 017.
85. M/S. KEERTHANA CONSTRUCTIONS
A PARTNERSHIP FIRM, HAVING ITS
OFFICE NO. 1, ASSAYE ROAD
BANGALORE - 560042.
REP. BY ITS PARTNERS
1. SMT. P. SARASWATHI
2. SRI. B. CHIRANJEEVI
3. SRI. P. MADHUSUDANA REDDY.
86. MAHAVEER PROPERTIES
MAHAVEER BOWER - II
REP. BY ITS PROP : SRI. P. SATHYA SHEKAR
NO. 1, MAHAVEER TOWERS
3RD FLOOR, 24TH MAIN, JP NAGAR 5TH PHASE
BANGALORE - 560 078.
16
SRI. JAYARAMA REDDY
S/O. FATHER NAME NOT KNOWN TO PETITIONER
MAJOR, R/A : M. B. W. BRICK WIRES
CHINNAPPANA HALLI
MARATHHALLI POST
BANGALORE - 560 037.
SINCE DEAD BY LRS.,
87. G. J. RAJA, MAJOR
S/O. G. JAYARAMA REDDY.
88. G. J. ARUNA, MAJOR
S/O. G. JAYARAMA REDDY.
89. G. J. ARUNA, MAJOR
D/O. G. JAYARAMA REDDY.
87 TO 89 ARE R/O M. B. W. BRICK WIRES
CHINNAPPANA HALLI, MARATHHALLI POST.
BANGALORE - 560 037.
90. M/S. GOLDEN GATE PROPERTIES LIMITED
A COMPANY INCORPORATED UNDER THE INDIAN
COMPANIES ACT, HAVING ITS REGISTERED OFFICE
AT GOLDEN HOUSE, 820, 80 FEET ROAD
8TH BLOCK, KORAMANGALA
BANGALORE - 560 034.
DIRECTOR MR. C. D. SANJAY RAJ.
91. MRS. ANU CHOPRA (MAIDEN NAME MISS ARUNA B. RAO)
W/O. MR. RAJEEV CHOPRA, AGED 68 YEARS
NO. 16/126, MAYUR APARTMENTS
PRABHAT COLONY, OPP HOTEL GALAXY
SANTA CRUZ EAST
MUMBAI 400055.
92. MR. GIRISH NAYUDU
S/O. LATE SRI. A. V. R. NAYUDU, AGED 68 YEARS
RESIDING AT SITE NO. 10, AECS 1LAYOUT
17
A BLOCK, CHINNAPPANAHALLI VILLAGE
BANGALORE EAST TALUK 560036
BANGALORE - 560036.
93. MRS. SHONALEE DAMODAR
W/O. SRI. B. B. SUJITH CARIAPPA
R/A. 351, 7TH MAIN
HAL 2ND STAGE
BANGALORE - 560008.
94. SRI. CHAITANYA EDUCATIONAL INSTITIUTION
REPRESENTED BY ITS FOUNDER
DR. B. S. RAO
S/O. FATHER'S NAME NOT KNOWN
TO THE APPLICANT, MAJOR
95. DR. B. JANSI LAKSHMI BAI
W/O. B. S. RAO
SY. NO. 23, R. J. GARDENS
CHINNAPPANAHALLI
MARATHHALLI POST
BANGALORE - 37.
96. M/S. SHRIRAM BUILDERS
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO. 10/1B, GRAPHITE INDIA ROAD HOODI
BANGALORE - 560 048.
REP. BY ITS MANAGING PARTNER
SRI. C. SURENDRANATH REDDY
S/O. LATE SRI. NARASIMHA REDDY.
97. T. N. BHAGYA
W/O. T. C. NAGARAJ
AGED ABOUT 69 YEARS
R/AT 274, 128, 13TH MAIN ROAD
HAL 2ND STAGE
BANGALORE - 560 008.
18
98. M/S. ICON DEVELOPERS
A REGISTERED PARTNERSHIP FIRM
(REGISTERED AS NO. SJN - F 744/2011 - 12)
HAVING ITS OFFICE AT NO. 106
1ST FLOOR, A ABOVE REKHA MARBLES
VIJAYA BANK COLONY EXTENSION
BANASAWADI RING ROAD
BANGALORE - 43.
REPRESENTED BY ITS PARTNERS
MR. C. SURENDRANATH REDDY
AGED ABOUT 74 YEARS
S/O. LATE SRI. C. NARASIMHA REDDY
MR. G. PRABHAKAR REDDY
AGED 65 YEARS
S/O. MR. GURIVI REDDY
SRI. N. SRINIVASA REDDY
S/O. LATE T. NARAYANA REDDY
76 YEARS, R/AT NO. 89, 4TH CROSS
GOKULA 3RD STAGE
MYSORE - 570002.
99. THE KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD
NO. 14/3, 2ND FLOOR
RESTROTHANA PARISHATH BUILDING
BANGALORE - 560 001.
100. THE SPECIAL LAND ACQUISTION OFFICER
KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD
NO. 14/3, 2ND FLOOR
RESTROTHANA PARISHATH BUILDING
NRUPATHUNGA ROAD
BANGALORE - 560 001.
101. M/S. BANGALORE METRO RAIL CORPORATION
HAVING ITS REGISTERED OFFICE AT
BMTC COMPLEX, 3RD FLOOR
19
K. H. ROAD, SHANTHI NAGAR
BANGALORE - 560 027.
102. SRI. HANUKRISHNA. K
S/O. HANUMANTHAIAH SETTY
AGED ABOUT 50 YEARS.
103. SMT. APARNA P. V.
W/O. HANUKRISHNA K.
AGED ABOUT 44 YEARS.
102 AND 103 ARE RESIDING AT
NO. 11/2, 4TH MAIN, 6TH CROSS
TRIVENI ROAD K. N. EXTENSION
YESHWANTHPUR
BANGALORE - 560 022.
104. SRI. RAVI. KUMAR LAGISETTY
S/O. L. MALLIAH GUPTA
AGED ABOUT 71 YEARS
RESIDING AT NO. B - 303
VERACIOUS SONESTA
K. R. GARDEN, WIND TUNNEL ROAD
MURUGESHPALYA
BENGALURU - 560 017.
105. SRI. K. SRINIVASAN
S/O. KASHI VISHWANATHAN
AGED ABOUT 61 YEARS
RESIDING AT PLOT NO. 172
RANI CHANNAMMA SOCIETY
MM EXTENSION, SRININAGAR
BELAGAUM - 590 016.
106. SRI. S. V. SUBRAMANI
S/O. S. C. VENKATESH
AGED ABOUT 51 YEARS
RESIDING AT SRINIVASANDRA VILLAGE
AND POST, KASAMBAL HOBLI
20
BANGARPET TALUK
KOLAR DISTRICT.
REP. BY THEIR GENERAL POWER
OF ATTORNEY HOLDER
M/S. SAADHANA DEVELOPERS
A PARTNERSHIP FIRM REGISTERED UNDER
THE INDIAN PARTNERSHIP ACT AND
HAVING ITS REGISTERED OFFICE AT
NO. 26/2, FIRST FLOOR
V. R. CHAMBERS, OUTER RING ROAD
KADUBASANAHALLI, BELLANDURU POST
BENGALURU - 560 103.
REPRESENTED BY ITS PARTNERS
(1) SRI. MASTHANAIAH KONCHA
(2) SMT. KOTHAPALLI SUMALATHA
107. SRI. GANAPATHI RAO AYINAPURAPU
S/O. PRABHAKAR RAO
AGED ABOUT 51 YEARS
NO. 42, 3RD CROSS
CHINNAPPANAHALLI MAIN
DODDANAKKUNDI EXTENSION
BENGALURU - 560 037.
108. SRI. KUPPUSWAMY
S/O. FATHERS NAME NOT
KNOWN TO THE PLANTIFF
AGED ABOUT 78 YEARS.
109. SRI. K. ASHOK REDDY
S/O. KUPPUSWAMY AND BHARATHI
AGED ABOUT 50 YEARS.
110. SRI. K. VASU REDDY
S/O. KUPPUSWAMY & BHARATHI
AGED ABOUT 47 YEARS.
21
108 TO 110 ARE RESIDING AT NO. 64
ANANTHARAMA REDDY LAYOUT
CHINNAPPANAHALLI
BANGALORE - 560 037.
111. SMT. ANURADHA. C
W/O. LATE P. MARUTHI
AGED ABOUT 49 YEARS
NO. 40, 1ST MAIN, 1ST CROSS
MANJUNATHA LAYOUT
HSR SECTOR - 7
BANGALORE - 560 068.
112. SRI. M. SHRIKANTH
S/O. LATE P. MARUTHI
GRANDSON OF LATE H. JAYAMMA
AGED ABOUT YEARS
NO. 40, IST MAIN, 1ST CROSS
MANJUNATH LAYOUT
HSR SECTOR - 7
BANGALORE - 560 068.
113. SMT. M. HONUSHREE
D/O. LATE P. MARUTHI
GRANDSON OF LATE H. JAYAMMA
AGED ABOUT 27 YEARS
NO. 48, ENNAR PLAZA
SANTRUPTHI NAGAR, KOTHANUR DINNE
OPPOSITE TO KAURAR NAGAR BUS STOP
BANGALORE - 560 048.
114. SRI. P. KRISHNAKUMAR
S/O. LATE H. JAYAMMA
AGED ABOUT 49 YEARS
BDK MANDIRA
SANTHA CIRCLE
YALAHANKA
BANGALORE - 560 064.
22
115. SMT. MUNINAGAMMA
D/O. LATE H. JAYAMMA
AGED ABOUT 65 YEARS
NO. 501, BAZAR STREET
2ND CROSS, NEAR SANJAY
PRINTING PRESS
YALAHANKA OLD TOWN
YALAHANKA, BANGALORE - 560 064.
116. SMT. N. PUSHPA
W/O. LATE H. THIPPA REDDY
AGED ABOUT 59 YEARS
R/A : SAI RAM NILAYA
NELLURAHALLI MAIN ROAD
SIDDAPURA, WHITEFIELD POST
BANGALORE - 560 066.
117. SRI. T. UMA SHANKAR
S/O. LATE H. THIPPA REDDY
MAJOR
R/A : NO. 22, SRI SATHYA SAI NILAYA
CHINNAPPANAHALLI VILLAGE
MARATHAHALLI POST
BANGALORE - 560 037.
... RESPONDENTS
(BY SRI. V. VISHWANATH, ADVOCATE FOR C/R-102,
103, 105 AND 106, SRI. SARAVANA, ADVOCATE FOR
SRI. D.R. RAVISHANKAR, ADVOCATE FOR R-104;
SRI. C. SHANKAR REDDY, ADVCOATE FOR
R32, 52, 53, 54, 116, AND 117;
RESPONDENTS NOS. 111, 112, 113, 114 & 115
ARE SERVED)
===
THIS R. F. A. IS FILED UNDER SECTION 96 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
26.04.2019 PASSED IN O.S.NO.17547/2006 ON THE FILE OF
23
THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
BENGALURU (CCH.NO.7), DISMISSING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
SHIVASHANKAR AMARANNAVAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal has been filed by the unsuccessful plaintiff challenging the judgment and decree passed by XXII Additional City Civil and Sessions Judge. Bengaluru, in OS No. 1754/2006 dated 26.04.2019.
2. The appellant died during the pendency of this appeal and her legal representatives were brought on record as appellants-1 to 3. The appellant/plaintiff had filed O.S. No. 1754/2006 seeking partition and separate possession of her share in the suit schedule A to C properties.
3. Even though separate evidence has been led, a common judgment came to be passed in O.S. No. 942/2001, O.S. No. 476/2006 and O.S. No. 1754/2006. 24
4. The case of the plaintiff in brief is that Chikkamuniswamy Reddy was married to Smt. Hanumakka and they had 7 sons namely, H.M. Shamanna Reddy, H.M. Krishna Reddy, H.M. Hanuma Reddy, H.M. Chinnappa Reddy, H.M. Veerappa Reddy, H.M. Kodandarama Reddy and H.M. Narayana Reddy. Smt. Akkayamma is the wife of Sri. H.M. Hanuma Reddy and they had 12 children namely, Smt. Peddakka, Smt. Chinnakka, Smt. Sharadamma, Smt. H. Jayamma (appellant/plaintiff), Smt. Savitramma, Sri. H. Tippa Reddy, Sri. H. Satyanarayana Reddy, Smt. H. Vijayamma, Smt. H. Sarasamma, Sri. H. Venkatesh Reddy, Smt. Vanamala and Sri. Anantarama Reddy. Smt. Peddakka, Smt. Sharadamma, Smt. Savitramma, Smt. Vijayamma and Sri. Anantarama Reddy are dead and their legal representatives are party defendants. Both Sri. H.M. Hanuma Reddy and his wife Smt. Akkayamma are dead.
5. Partition had been effected among Sri. H.M. Hanuma Reddy and others. Sri. H.M. Hanuma Reddy had got various 25 properties. After the partition, he had acquired certain properties. On 29.11.1971 a partition was effected among Sri. H.M. Hanuma Reddy and his children and in that partition he was allotted properties shown in Schedule-A of the suit. Though survey No. 19 was purchased by Sri. H.M. Hanuma Reddy, it was partitioned. All acquisitions by Sri. H.M. Hanuma Reddy or other members of the family are out of joint family nucleus and all the joint family properties were enjoyed jointly even though some of the properties were purchased in the name of coparceners.
6. The properties purchased by Sri. H.M. Hanuma Reddy were shown in schedule B of the suit. Though the properties were acquired by Sri. H.M. Hanuma Reddy, the properties mentioned in schedule B were also joint family properties.
7. The properties purchased in the name of Sri. H. Tippa Reddy were mentioned in schedule C of the suit. Sri. H. Tippa Reddy had obtained a sale deed from sons of Sri. 26 Chikamuniswamy Reddy, Sri. Shamanna Reddy, Sri. Krishna Reddy, Sri. Hanuma Reddy and Sri. Narayan Reddy. The object of sale as recited in the sale deed are that their father Sri. Chikkamuniswamy Reddy had obtained loan and they did not want to continue to be the members of Joint Hindu Family. Sri. Shamanna Reddy was authorized to sell one of the lands and he was unable to sell the land as the Khata stood in the name of the Society. It is also recited that they had other debts. The property bearing Survey No. 10 of Hoodi village (item No.4 of schedule C) purportedly sold in favour of Sri. H. Tippa Reddy son of Sri. H.M. Hanuma Reddy and said sale was not for his personal benefits. He was eldest son of the family of Sri. H.M. Hanuma Reddy and he was also a member of undivided joint family consisting of his father and uncles. He had no independent income of his own and his income was from the nucleus of the undivided joint family. The sale was only with a view to secrete the property bearing Survey No.10. The joint family had also purchased an immovable property in the name of defendant No.1 on 27 20.11.1968 in addition to the property bearing No.10 from out of nucleus of the joint family.
8. Sri. H. Tippa Reddy defendant No. 1 had no independent income of his own and he was not capable of investing money to purchase the suit property by himself. The property - land bearing Survey No. 13/2 measuring 1 acre was wet land situated at Chinnappanahalli, Bengaluru (item No.5 of schedule C) and it was purchased from Sri. H.M. Chinnappa Reddy in the name of defendant No. 1 under a registered sale deed dated 21.11.1968 and it was also a joint family property.
9. Land bearing Survey No.10/2 to an extent of 1 acre which was also a wet land in Chinnappanahalli, Bengaluru came to be purchased in the name of defendant No. 2 - Sri. H. Sathyanarayan Reddy on 21.11.1968 from out of nucleus of the joint family as he was a junior member of the joint family and consideration was paid out of nucleus of the joint family.
28
10. Sri. H. Tippa Reddy, is a coparcener and there was no need for the family to sell the property bearing Survey No. 10 to him and income out of it was being utilized by Sri. H.M. Hanuma Reddy and other coparceners. If the properties were blended with other joint family properties, it was never treated as a self-acquired property. Sri. H. Tippa Reddy was trying to take the advantage of the fact that others were not financially well and all the sale deeds stood in his name. All the properties mentioned in schedule C were also joint family properties. If the property mentioned in A, B and C schedules continued to be undivided joint family properties, after death of Sri. H.M. Hanuma Reddy each one of them had undivided interest.
11. Land bearing Survey No. 23 (item No.1 of schedule A of the suit), there was discrepancy with regard to its measurements and what was sought to be divided was 20 guntas even though the documents indicate that its measurement is 05 acres 26 guntas.
29
12. Item No. 2 of the schedule A property of the suit is to an extent of 05 acres 33 guntas and it had been held as joint family property and attempts were made in the proceedings before the authorities with regard to its division. The division had been done excluding the rights of Sri. H.M. Hanuma Reddy.
13. The joint family also purchased the immovable properties in the name of defendant No. 1 in addition to the property bearing Survey No.10 from out of nucleus of the joint family. Sri. H. Tippa Reddy, defendant No. 1 had no independent income of his own and he was not capable of investing to purchase the said property by himself and therefore the properties purchased in the name of defendant No. 1 were joint family properties. The defendants who claimed to be the purchasers of certain portions of lands were having absolute right and the sales did not bind the plaintiff. The appellant/plaintiff had got herself impleaded in the suit filed by Smt. Vanamala and others in O.S. No. 942/2011 and 30 she made an application to withdraw the suit with liberty to file a fresh suit with the same cause of action and had thus filed the suit i.e. O.S. No. 1754/2006.
14. The legal representatives of defendant No. 2, defendant Nos. 5, 21 to 23, 24, 25 to 31, 33, 35, 39, 40 to 42, 44, 49, 78, legal representatives of defendant Nos. 81, 82, 83, 84 to 88, 90 and 97 have filed their separate written statements. Defendant No. 1 had adopted the written statement of defendant Nos. 28 and 29. Defendant No. 34 (a) and (b) had adopted the written statement of defendant No.
24. Defendant No. 87 had adopted the written statement of defendant No. 86. Defendant Nos. 94 to 96 and 98 had adopted the written statement of defendant No. 97. Defendant Nos. 3, 17 to 19, 36, 38, 46 to 48,53, 57, 60, 62 to 67, 89, 91 to 93, 99 had not filed written statements. Defendant No. 4 is dead. Defendant Nos. 6 to 16, 20, 22, 43, 45, 50 to 52, 58, 61, 69 to 71, 91, 92 and 93 were placed ex-parte. Defendant 31 Nos. 37, 54 to 56, 59, 68, 72 to 77, 79, 80, 100 to 102 were absent.
15. Legal representatives of defendant No. 2 i.e. defendant Nos. 2 (a) (b) (c) and (e) had taken up the following defence in their written statement.
They have admitted the relationship between the parties to the suit. They contended that plaintiff had filed O.S. No. 942/2001 along with one Smt. Vanamala for the relief of partition and separate possession. The contentions taken by the plaintiff in the said suit were contradictory to the contentions taken in this suit. The plaintiff was defendant No. 2 in the said suit and on realizing that she would never succeed in the said suit had filed application to withdraw the said suit with liberty to file a fresh suit on the same cause of action. The plaintiff had filed the present suit on a different cause of action giving go by to the alleged earlier cause of action stated in O.S. No. 942/2001. However, she was bound by the pleadings in plaint of O.S. No. 942/2001 as she was 32 co-plaintiff. Subsequently the plaintiff had impleaded herself as defendant No. 9 in O.S. No. 942/2001 and had not chosen to take up separate defence. They have contended that suit is hit by Section 10 and 11 CPC. Plaintiff in O.S. No. 942/2001, defendant No. 36 - Sarsamma and defendant No. 35 - Vanamala in the present suit had filed one more suit for the relief of partition and separate possession in O.S. No. 3859/2006 and the same came to be dismissed. The suit schedule properties were no more agricultural properties and the plaintiff had admitted that several suit schedule properties have already been sold in favour of third parties decades prior to filing of the suit and the plaintiff had not impleaded all the persons who had purchased the sites and therefore, suit was bad for non-joinder of proper and necessary parties. They further contended that there was a registered partition deed on 29.11.1971 between Sri. H.M. Hanuma Reddy and his children which was effected by meets and bounds and it was acted upon by all the parties and some sharers had alienated their respective shares long back 33 before filing of the suit. The said alienations have never been challenged by the plaintiff even though they were within her knowledge. The said partition dated 29.11.1971 was full- fledged in nature and there was disruption of status of members of family and there was no existence of joint family either in food, shelter or properties and each sharer was exclusively enjoying the properties fallen to his/her share. The object of sale transaction between Sri. H. Tippa Reddy and sons of Sri. Chikka Muniswamy Reddy was recited in the document to the effect that their father Sri. Chikka Muniswamy Reddy had obtained a loan and they did not want to continue to be members of joint family and it was further recited that Sri. H.M. Shamanna Reddy was authorized to sell one of the lands and he was unable to sell the land as khathas stood in the name of Society and it was recited that they had other debts that the property bearing survey No. 10 of Hoodi village had been purportedly sold in favour of Sri. H. Tippa Reddy son of Sri. H.M. Hanuma Reddy. They further contended that the suit schedule properties have been fully 34 developed and they have changed several hands wherein third party interest have been created who were bonafide purchasers. Several multistoried buildings have also been built by bonafide purchasers from Sri. H.M. Hanuma Reddy during his life time itself and hence, the suit schedule properties were not available for partition.
They further contended that plaintiff was aware that late Sri. H.M. Hanuma Reddy during his life time had executed a registered Will dated 14.05.1986 where he had mentioned regarding prior partition and in fact under the very same Will the son of plaintiff No. 1, i.e., Sri. P. Dhanaraj was even given a site carved out of survey No. 19 of Chinnappanahalli village and therefore the plaintiff cannot feign ignorance of the 1971 partition. The said Sri. P. Dhanaraj had even alienated the site that was given to him by late Sri. H.M. Hanuma Reddy. One Smt. Vijayamma late daughter of Sri. H.M. Hanuma Reddy i.e. mother of defendant Nos. 14 to 16 was also given 2 sites for Harishina-kumkuma by late Sri. H.M. Hanuma Reddy.
35
They further contended that several purchasers who are in actual possession and enjoyment of suit schedule properties with various structures standing thereon having invested several crores of rupees are not made parties to the suit and therefore suit is bad for non-joinder of proper and necessary parties. Plaintiff has not challenged the registered partition deed dated 29.11.1971 and also the subsequent partition deed dated 28.08.1989 whereunder properties were partitioned. Plaintiff has not disclosed that late Sri. H.M. Hanuma Reddy had two wives and all the legal representatives through first wife were not impleaded in the suit. There is no prayer as against the various purchasers of the suit schedule properties.
They further contended that suit is bad for non inclusion of all the properties that fell to the share of Sri. H.M. Hanuma Reddy in the partition that took place in the year 1955 between himself and his brothers. They further contended that the plaintiff, Smt. Sarasamma, defendant No. 36 - Smt. Vanamala and defendant No. 35 had filed O.S. No. 36 3859/2006 against defendant Nos. 1 and 2 and sons of defendant No. 1 for partition and separate possession which came to be dismissed on 25.01.2010. The said suit was filed claiming share in properties shown in schedule C therein. However it is admitted therein that defendant No. 1 was in exclusive possession of the same and the plaintiff in the said suit claimed that they were entitled for a share in the property of Sri. H.M. Shamanna Reddy even though they were daughters of Sri. H.M. Hanuma Reddy. Once they claim a share in respect of certain properties and the suit is dismissed, they are precluded from making contrary claims in the present suit. It is their further contention that late Sri. H.M. Hanuma Reddy had bequeathed a portion of property bearing survey No. 10/2 of Chinnappanahalli village under a Will dated 14.05.1986 in favour of Sri. H. Anantharama Reddy and also in favour of his wife and it had been acted upon by the parties and it was within the knowledge of plaintiff as her son was also a beneficiary to the said Will. Sri. H.M. Hanuma Reddy had also bequeathed some sites formed 37 in survey No. 19 of Chinnappanahalli village in favour of Sri. P. Dhanaraj son of Smt. Jayamma - plaintiff and also in favour of daughter of Sri. H.M. Hanuma Reddy under Will dated 14.05.1986 which indicates that the said items were converted during the life time of Sri. H.M. Hanuma Reddy and they were no longer agricultural lands. The said survey No. 19 was later sub-divided and poded into survey Nos. 19/1 upto 19/20 and further survey No. 19/1 was subdivided and poded into survey No. 19/1a to survey No. 19/1e. But it was shown as survey number 19 in the plaint. One site in the survey number was gifted in favour of Smt. Sarasamma (defendant No. 36) under registered gift deed dated 27.03.1972 and she had sold the same by registered sale deed dated 25.11.1974 in favour of one Smt. Kathyaniamma and in the said sale deed also there was a reference to 1971 partition. They further contended that defendant No. 1 had purchased item No. 4 of schedule C property under registered sale deed dated 26.06.1967 from Sri. H.M. Shamanna Reddy. Hence, defendant No. 1 became absolute owner of the entire 38 extent of 13 acres 10 guntas in survey No. 10 of Hoodi village and he was in possession of the same. Later said survey No. 10 was subdivided and poded as survey Nos. 10/1 and 10/2 with separate extents in view of the alienations made by defendant No. 1. Defendant No. 1 had sold the entire land in survey No. 10/1 and he had retained land measuring in all 6 acres 10 guntas including a portion in survey No. 10/2. They further contended that survey No. 14/1, 14/2, 15/1 and 11 were converted prior to filing of the suit by conversion orders dated 07.04.2004 and 26.03.2005 and now multistoried buildings are constructed and the same was leased out to defendant No. 34. They further contended that survey Nos. 21/1, 21/2, 21/3, 22, 23 and 24 were converted as per conversion order dated 10.12.2008. A portion of land in survey No. 23 had been utilized for laying a railway line which passes through survey No. 23. Defendant No. 1 had purchased an extent of 20 guntas from his father Sri. H.M. Hanuma Reddy under registered sale deed dated 28.03.1983. The eldest son of defendant No. 1 Sri. T. Muralidhar 39 constructed a house a decade prior to suit and he was residing therein. They further contended that defendant No. 1 purchased an extent of 25 guntas in survey No. 24 under registered sale deed and same was converted and 4 guntas of land in the same survey number was purchased by defendant No. 1 under registered sale deed dated 23.04.1988 from one Smt. Annamma Abrahim out of 6-1/2 guntas. They further contended that survey No. 44 had been subdivided and poded into survey Nos. 44/1 and 44/2 and survey No. 44/1a was later subdivided and poded in survey No. 44/1a and 44/1b. They further contended that survey No. 13 was not at all in existence as on the date of suit as the same was already poded as survey No. 13/1 in the name of defendant No. 2. Said survey No. 13 measured 23 guntas and not 1 acre as claimed by plaintiff and it was converted prior to the suit. Survey No. 3/1 was not in existence and it never belonged to joint family of Sri. H.M. Hanuma Reddy. In fact the said land was allotted to the share of Sri. H.M. Veerappa Reddy and the said land had been purchased by defendant No. 2 from his 40 independent source of income under registered sale deed from Sri. H.M. Veerapa Reddy. Subsequently said land was sold to third parties.
They further contended that survey No. 44 of Chinnappanahalli village was allotted to defendant No. 1 under 1971 partition and later it was sold to third parties. Defendant Nos. 1 and 2 were doing civil contract work during the years prior to partition apart from agriculture and they owned lorries, tractors and crusher installed in survey No. 20 which was run in the name of Ravi Granites and Transport Business. They had obtained stone quarry licence in the year 1974. Defendant No. 2 was the Chairman of Nallorahalli Panchayat during the year prior to partition and he later became Director of Varthoor society for 9 years. He was elected as a Councilor of City Municipal Council, Mahadevapura, from ward No. 22 for 10 years. Quarry leases were taken from time to time including one issued during December 1991, 23.10.1999 and 26.11.1996. Said quarrying activities have been carried out since 40 years. Hence 41 defendant No. 2 had independent source of income and capacity to purchase properties in his name.
They further contended that during the pendency of the suit defendant No. 2 died and his legal heirs were brought on record. During his life time, much prior to filing of suit there was a further division of family properties belonging to the family of late defendant No. 2 which was reduced into writing under Panchayat parikat deed dated 07.07.2000 and it was acted upon. Defendant Nos. 2d and 2e prior to receiving notice of legal representatives application had already executed separate registered release deeds in respect of suit schedule properties in favour of defendant No. 2b and also confirmed partition by panchayat parikat dated 07.07.2000. Subsequently their family members had entered into a registered partition deed in respect of remaining properties. Certain properties fallen to the share of H.M. Hanuma Reddy were sold by him. There was further division among his sons under written document much prior to filing of the suit. 42
Defendant Nos. 5, 21 to 23 in their written statement contended as under:
They admitted relationship between the parties to the suit and division of the suit schedule properties long ago. During the life time of Sri. H.M. Hanuma Reddy he had effected the partition and the properties that had fallen to the share of legitimate sharers have already been sold and purchasers are in possession. The joint family was not in existence as on the date of filing of the suit.
Defendant No. 24 in written statement pleaded as under:
He had denied each and every averment narrated in the plaint. He was a purchaser of item No. 2 of schedule C property. It was measuring 3 acres 5 guntas in survey No. 10 of Hoodi village. It was totally measuring 13 acres 10 guntas owned by one Sri. H.M. Shamanna Reddy - uncle of plaintiff and it was his exclusive property and he had mortgaged it in favour of Lakshminarayana Swamy Cooperative Society, Hoodi. He had pleaded details of acquiring the said property. 43
Defendant Nos. 25 to 27 in their written statement have pleaded as under:
Plaintiff has described lands belonging to these defendants in survey No. 10 of Hoodi village at item No. 4 in Schedule C of the plaint recently adding the same by amending the plaint. These defendants have jointly purchased 1 acre 5 guntas of land in survey No. 10 of Hoodi village from Sri. Tippa Reddy under sale deed dated 19.03.1994. They claim that they were bona fide purchasers of the said property.
Defendant Nos. 28 and 29 in their written statement have pleaded as under:
Plaintiff, defendant No. 36 - Sarasamma and defendant No. 35 - Vanamala had filed one more suit for the relief of partition in O.S. No. 3859/2006 which came to be dismissed on 25.10.2010. They pleaded regarding partition dated 29.11.1971 and alienation of properties by sharers of their respective shares long prior to filing of the suit. The suit schedule properties have been fully developed and changed 44 several hands wherein third party interest have been created who are bona fide purchasers and several multistoried buildings have been built by the purchases and suit schedule properties were not available for partition. They also pleaded regarding Will dated 14.05.1986 bequeathing one property in favour of Sri. P. Dhanaraj son of plaintiff and in the said Will there was a reference to 1971 partition. Portion of survey No. 1/10 of Chinnappanahalli i.e. item No. 3 of Schedule A was bequeathed under the said Will in favour of Sri. H. Anantharama Reddy and it was acted upon. One of the sites in survey No. 19 was gifted in favour of defendant No. 36 - Smt. Sarasamma under registered gift deed dated 27.03.1972 and she sold the said site on 27.11.1974 in favour of Kathayaniamma and there was a reference to 1971 partition in the sale deed. They further pleaded that defendant Nos. 1 and 2 were doing civil contract work apart from agriculture and they owned lorries, tractors and crushers and running stone crushing quarry and they had independent source of income. 45
Defendant No. 30 in written statement has pleaded as under:
He is a purchaser of 21 guntas in survey No. 10 of Hoodi village from Sri. H. Tippa Reddy - defendant No. 1 under sale deed dated 17.02.1981 being portion of item No. 4 of Schedule C property and he had constructed commercial building over it and he is a bonafide purchaser.
Defendant No. 31 in the written statement has pleaded as under:
He is a builder and constructed residential apartment by entering into joint development agreement with defendant No. 2 and his sons in property bearing survey Nos. 8/1, 8/2, 9, 10/2 of Chinnappanahalli village and he sold his share of flats to third parties.
Defendant No. 34 Sri. G.V. Lakshmikant Raju has pleaded in the written statement as under:
That he is the absolute owner of property bearing Survey No.10 measuring 13 acres 10 guntas situated at Hoodi village and it was described in item No. 4 of C schedule. 46 One Sri. Chikkamuniswamy Reddy and his sons borrowed the loan and mortgaged the above said property along with other properties to Hoodi Laxminarayan Co-operative Society and due to default of repayment of loan the said society got a decree from the Court and the said property was auctioned and the said society succeeded as the highest bidder. Sri. Chikkamuniswamy Reddy and his 7 sons executed a sale deed in favour of the Society represented by the official liquidator. Sri. Chikkamuniswamy Reddy and his 7 sons executed the sale deed in favour of the said Society on 15.01.1942. Therefore, the plaintiff's ancestors lost their rights over the mortgaged property including the suit schedule C item No. 4. One Sri. M. G. Vasantayya had purchased the said property from Hoodi Laxminaraya Co- operative Society through official liquidator and became absolute owner and he sold 03 acres 05 guntas of the property to one Sri. L. Venkataramaraju on 09.09.1970 and he converted the same land for industrial purpose. Out of the remaining 10 acres and 5 guntas, 9 acres 5 guntas was 47 standing in the name of his father. That his father was alive, he was looking after the said property and he died on 27.06.1996. Defendant No. 3 and his two brothers were staying in Bengaluru and they were not aware of the same. This defendant had already filed partition suit in O.S. No. 601/2004 in City Civil Court (CCH. No. 3) against defendant Nos. 1, 25, 26, 27, 28 and 30 and brothers and sisters of defendant No. 3 for 7 acres 10 guntas of land out of 13 acres 10 guntas in item No. 4 of Schedule C. Defendant No. 34(a) and (b) who were the legal representatives of defendant No. 34 adopted the written statement of defendant No. 24.
Defendant No. 35 in her written statement had pleaded as under:-
She had admitted the claim of plaintiff. According to her Sri. Tippa Reddy purchased the property from Sri. Chikkamuniswamy Reddy and others. Sri. Tippa Reddy who was the elder son of Sri. H.M. Hanuma Reddy had no independent income and whatever income he was getting was 48 out of the nucleus of the undivided joint family. Joint family of Sri. H.M. Hanuma Reddy also purchased immovable properties in the name of defendant No. 1 on 20.11.1968 out of nucleus of joint family. She had admitted that defendant No.1 had no independent income and had no power to invest money on his own to purchase property bearing Survey No. 13/2 measuring 1 acre and hence, it is a joint family property and liable for division. So also property bearing Survey No. 10/2 was purchased in the name of defendant No. 2 who was junior member of the family at the time of purchase. Item No. 2 of schedule A is joint family property. In addition Survey No. 10 was acquired from out of nucleus of joint family and those properties are required to be partitioned between the parties to the suit. This defendant who being a member of Hindu Undivided Joint Family of late Sri. H.M. Hanuma Reddy stands on the same footing as that of plaintiff and entitled to a share in schedule A to C properties.
Defendant No. 39 in his written statement has pleaded as under:-
49
He had purchased item No. 4 of suit schedule C property measuring 2 acres of land under sale deed dated 19.09.1994 and he had converted the property from agricultural to non-agricultural purposes and he was a bonafide purchaser.
Defendants Nos. 40 to 42 in their written statement have pleaded as under:-
They are purchasers of 3 acres 05 guntas in Survey No.10 of Hoodi village and they are the bonafide purchasers.
Defendant No.44 in his written statement has pleaded as under:-
There was no joint family and Sri. H. Tippa Reddy was not a coparcener and there was a partition long back. This defendant was a developer and entered into joint development agreement with land owners and constructed apartments and sold them to third parties.
Defendant No. 49 in his written statement has pleaded as under:-
50
This defendant is only concerned with portion of item No. 19 of schedule C property. The said property was included by way of amendment in the year 2011 showing it as a vacant land though various apartment buildings were constructed and sold to various purchasers as on that day.
Defendant No.78 in his written statement has pleaded as under:-
That he was a purchaser of 15 guntas in Survey No. 14/2, i.e., item No. 18 of schedule C under sale deed dated 12.12.2003 from legal heirs of Sri Anantharama Reddy.
The legal representatives of defendant No. 81 in their written statement have pleaded as under:-
They are concerned with item No. 1 of plaint C schedule property and it was purchased by deceased defendant No. 81 under sale deed dated 23.05.1988 from Sri. H.V. Jayamma Reddy and others. They partitioned all the family properties including the property bearing Survey No. 3/1 under registered partition deed dated 21.01.2011. Under the said registered partition deed entire Survey No.3/1 had fallen to 51 the share of Sri. G.J. Vijayakumar and his children. Property bearing Survey No. 3/1 was not a joint family property of the plaintiff.
Defendant No. 82 in his written statement has pleaded as under:-
This defendant had purchased part of Survey No.10 of Hoodi village from Sri. H. Tippa Reddy and converted property measuring 5 acres 3/4th guntas and developed the said property and sold the same to the purchasers.
Defendant No. 83 in his written statement has pleaded as under:-
Under partition deed dated 29.11.1971 deceased defendant No. 4 was allotted 1 acre in Survey No.13/2 (schedule C item No. 5) of Chinnapanahalli village and he sold 20 guntas out of the said land to defendant No. 77 under sale deed dated 24.02.1992. Defendant No. 77 formed private layout of sites and sold site Nos. 8 and 9 under the sale deed dated 31.03.1995 in favour of this defendant and she is a bonafide purchaser.
52
Defendant No. 84 in his written statement has pleaded as under:-
There was a registered partition deed dated 29.11.1971 between Sri. H.M. Hanuma Reddy and his children and under the said partition 1 acre in Survey No.13/2 (schedule C item No.5) of Chinnapanahalli village was allotted to the share of defendant No. 4 who had sold 20 guntas out of Survey No. 13/2 to defendant No. 77 under sale deed dated 24.02.1992. Defendant No. 77 formed layout and sold site No.10 under the sale deed dated 31.03.1995 in favour of this defendant. After purchasing the site this defendant has constructed a residential house and is a bonafide purchaser.
Defendant No. 85 in his written statement has pleaded as under:-
There was a registered partition deed dated 29.11.1971 between Sri. H.M. Hanuma Reddy and his children and under the said partition 1 acre in Survey No. 13/2 (schedule C item No. 5) of Chinnappanahalli village was allotted to the share of defendant No. 4 who had sold 20 guntas out of Survey No. 53 13/2 to defendant No. 77 under sale deed dated 24.02.1992. Defendant No. 77 formed layout and sold site No. 7 under sale deed dated 31.03.1995 in favour of this defendant. After purchasing the site she is in possession of the site and she is a bonafide purchaser.
Defendant No. 86 in his written statement has pleaded as under:-
There was a registered partition deed dated 29.11.1971. Sri. Tippa Reddy got 2 acres in survey No. 23 of Chinnappanhalli village under the said partition deed. He got another 20 guntas in the said survey number under sale deed dated 28.03.1983 executed by Sri. H.M. Hanuma Reddy. Subsequently there was a registered partition in the family of Sri. H. Tippa Reddy dated 03.05.2012 under which schedule C property was allotted to the share of Sri. P. Muralidhara i.e., item No. 4 of C schedule and Survey No. 23 measuring 02 acres. This defendant was a tenant under the said Sri. P. Muralidhara in the said property.
54
Defendant No. 87 has adopted the written statement of defendant No. 86.
Defendant No. 88 in his written statement has pleaded as under:-
Defendant No. 42, his wife and children have entered into registered joint development agreement dated 07.11.2014 whereby this defendant agreed to construct multistoried apartment at his cost and in consideration defendant No. 42 agreed to transfer 55% undivided share in the land and defendant No. 42 was entitled for 45% super built up area. This defendant had constructed apartments and sold plots of his share to different purchasers.
Defendant No. 90 in his written statement has pleaded as under:-
This defendant had entered into joint development agreement dated 29.12.2012 with defendant No. 41. This defendant had pleaded defence as that of defendant Nos. 40 to 42.
55
Defendant No. 97 in his written statement has pleaded as under:-
Defendant No. 94 is actual owner and in possession of site No. 19 which is a portion of Survey No.19. Sri. H. M. Hanuma Reddy being owner of Survey No.19 had formed sites and sold the same to the third parties. Site No.19 was sold by him in favour of one Smt. V. Saroja under sale deed dated 25.08.1975. Smt. V. Saroja had sold the said site in favour of one Smt. K. Saroja under sale deed dated 31.01.1981. Thereafter said K. Saroja gifted the said site in favor of one Sri. K. Vaidyanathan under registered gift deed dated 03.08.2012. The said K. Vaidyanathan had in turn sold the said site to M/s. Irest Technologies Pvt. Ltd., under sale deed dated 03.08.2013. Later the said M/s. Irest Technologies Pvt. Ltd., had sold the same in favour of defendant Nos. 94 and 95 under the sale deed dated 08.08.2013. Defendant No. 96 was owner of site No. 29 in Survey No. 19 which was held by family of Sri. H.M. Hanuma Reddy. The said site was sold by his family members in favour of one Sri.Setumadhavan under 56 sale deed who in-turn sold the same in favour of one Sri. Anantharaman under sale deed dated 01.12.1992. After the death of said Sri. Anantharaman his wives Smt. Nagamani and Smt. Deena who succeeded to the said site have sold the same in favour of Sri. Ravi Kumar Lagi Setty - defendant No. 96 under sale deed dated 11.07.2002. This defendant was owner of site No. 2 which is part of Survey No.19 which was allotted to the share of Sri. Venkatesh Reddy son of Sri. H.M. Hanuma Reddy under registered partition deed dated 29.11.1971 and he had sold the same in favour of one Sri. Kashi Vishwanathan under the sale deed dated 17.04.1972. Later the said Kashi Vishwanathan had gifted the same in favour of his son i.e., this defendant under gift deed dated 16.11.2002. Defendant No. 98 was the absolute owner of portion of land in Survey No.19, 19/1C and 19/1D totally measuring 60 x 40 feet. The said portion of property was out of 5 guntas of land in Survey No.19, 19/1C, 19/1D, which was purchased by Smt. Kamalamma from Mathew George, Sri. Achuthan Nair and Sri. Tulasiraman under three 57 separate sale deeds dated 12.05.1987, 02.04.1988 and 12.05.1987. The said Smt. Kamalamma had purchased the above said property in the name of her minor son Sri. Umashankar as a natural guardian. Subsequently, the said Sri. Umashankar had sold the said property through his lawful attorney who was none other than his father Sri. Tippa Reddy in favour of Defendant No. 98 under sale deed dated 08.08.2008. Defendant Nos. 94 to 96 after purchase of sites had constructed residential houses which were demolished for the purpose of construction of residential apartments. The defendant Nos. 94 to 98 being owners of their respective portion of the properties situated adjoining to each other were intending to develop the same through a developer and entered into joint development agreement on 22.02.2017 with M/s. Sadhana Developers who was arrayed as GPA holder of defendants Nos. 94 to 98. GPA Holder had put up construction of residential apartments. 58
16. The trial Court on the basis of above pleadings had framed the following issues:-
i. Whether the plaintiff proves that suit properties are undivided joint family properties of the plaintiff and defendants 1 to 30, 35 and 36?
ii. Whether plaintiff has a share in the suit properties? iii. Whether plaintiff is entitled for the relief of perpetual injunction sought for? iv. Whether defendant Nos.1, 2 and 21 to 23 prove the oral partition alleged by them during the life time of late Hanuma Reddy?
v. Whether defendant No.24 proves that suit item No.4 of 'C' schedule property was self acquired property of H.M. Shamanna Reddy and therefore, plaintiff has no right over the same?
vi. Whether defendant No.24 proves that he has lawfully purchased item No.24 of 'C' schedule property?
vii. Whether defendants Nos.25 to 27 prove that they have purchased validly 1 acre 5 guntas of land in Survey No.10 of Hoodi village at item No.4 of 'C' schedule?
viii. Whether defendants Nos.25 to 2 prove that they have acquired title to 1 acre 5 guntas of land in 59 Survey No. 10 of Hoodi village at item No.4 of 'C' schedule?
ix. Whether defendants Nos.28 and 29 prove that registered partition deed dated 29.11.1971 was acted upon and binding on the plaintiff?
x. Whether defendants Ns.28 and 29 prove that late Hanuma Reddy executed registered Will dated 14.05.2006 out of his free will and sound mind? xi. Whether defendant No.31 proves that defendant No. 2 Sathyanaraya Reddy and his wife and children were the owners of 1 acre 2 gutnas of land in SurveyNo.10/2 of Chinnappanahalli village, as pleaded in Para-7 of the written statement? xii. Whether defendant No.21 proves that it has lawfully entered into a joint development agreement with defendant No.2 and his family?
xiii. Whether suit is not maintainable?
xiv. Whether suit is barred by res-judicata? xv. Whether suit is bad for non-joinder of necessary parties?
xvi. Whether suit is barred by time?
xvii. Whether court fee paid is insufficient? xviii. What order or decree?
60Additional Issue framed on 12.02.2014 xix. Whether defendants Nos.81, 83 to 85 prove that they are bonafide purchasers for valuable consideration?
Additional Issue framed on 09.10.2018 xx. Whether defendants 94 to 98 prove that, they are bonafide purchasers of portion of suit properties?
17. The power of attorney holder of plaintiff got himself examined as P.W.1 and got marked Ex.P.1 to Ex.P.142. Defendant No. 29 GPA Holder of defendants Nos. 25 to 27, special power of attorney holder of defendant Nos.19, 42, 24, 88, 49 and 10, special power of attorney holder of legal heirs of defendant Nos. 34 (a) and (b), and defendant No. 97 were examined as D.W. 1 to D.W. 10 and got marked Ex.D. 1 to Ex.D. 246. Ex.D. 231 to 236 were marked in the cross- examination of PW.1.
18. After hearing the arguments on both sides the learned trial Judge has answered issues Nos.1 to 3 and 14 in 61 the negative and issue Nos. 4 to 10, 13 and 17 in the affirmative and issue Nos. 11, 12, 15, 16 and additional issues Nos. 1 and 2 as does not survive for consideration.
19. We have heard Sri. P.S. Rajagopal, learned Senior counsel appearing for appellant, Sri. C. Shankar Reddy, learned counsel appearing for respondent Nos. 32, 52, 53, 54, 116 and 117. Sri. V. Vishwanath, learned counsel appearing for respondent Nos. 102, 103, 105 and 106 and Sri. Saravana, learned counsel appearing for respondent No. 104.
20. It is the contention of learned counsel appearing for appellant/plaintiff that appellant/plaintiff who is the daughter of late Sri. H.M. Hanuma Reddy was not a party to the partition deed dated 29.11.1971 which took place between late Sri. H.M. Hanuma Reddy and his sons and therefore, it is not binding on the appellant/plaintiff as the properties are joint family properties and the daughters were not parties to the said partition. It is his further contention that suit schedule A properties were allotted to the father of 62 appellant/plaintiff in the said family partition dated 29.11.1971, suit schedule B properties are self acquired properties of late Sri. H.M. Hanuma Reddy and suit schedule C properties are properties purchased in the name of defendant No. 1 - Sri. H. Tippa Reddy son of late Sri. H.M. Hanuma Reddy being the elder son of the family out of the joint family properties. It is his further contention that Smt. Akkaiamma wife of late Sri. H.M. Hanuma Reddy predeceased her husband and therefore, the property which was bequeathed in her favour will go back to late Sri. H.M. Hanuma Reddy. It is his further contention that the Will dated 14.05.1986 executed by late Sri. H.M. Hanuma Reddy (Ex.D. 236) has been marked in the cross-examination of P.W.1. It is his further contention that mere marking of the said documents does not dispense with proof. The attesting witnesses to the said Will have not been examined. He has placed reliance on the observations of the Apex Court in the following decisions:
63i. Sait Tarajee Khimchand and others Vs. Yelamarti Satyam Alias Satteyya and others, 1972 (4) SCC 562,
15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of accounts became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiff.
ii. LIC of India Vs. Ram Pal Singh Bisen and others reported in 2010 AIR (SCW) 1900,
20. Thus, the question that arises for consideration is whether in absence of any oral evidence having been tendered by the appellants, and especially in absence of putting their own defence to the respondent during his cross examination in the 64 Court, what is the effect of documents filed by appellants and marked as Exhibits.
xxxx xxxx
31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a Court.
21. It is his further contention that the trial Court ought to have held that the plaintiff being the daughter of late Sri. H.M. Hanuma Reddy, is entitled to a share in the joint family properties and the partition deed dated 29.11.1971 is not binding on her since she was not a party to it. It is his further contention that the judgment is perverse and therefore requires to be set aside and the suit of the appellant/plaintiff requires to be decreed.
65
22. Per contra, Sri. C. Shankar Reddy, learned counsel has contended that originally Smt. Jayamma was plaintiff No. 2 in O.S. No. 942/2001 and she filed interim application under Order 23 Rule 1(iii)(c) seeking withdrawal of the suit and permission to file fresh suit on the same cause of action and the same came to be allowed by order dated 19.01.2006. Thereafter she filed O.S. No. 1754/2006 (present suit) on different cause of action. It is his further contention that Smt. Vanamala, plaintiff in O.S. No. 942/2001 filed interim application on 11.07.2007 to implead Smt. Jayamma as defendant No. 9 and the same came to be allowed by order dated 20.08.2007. Said Smt. Jayamma who was impleaded as defendant No. 9 filed written statement with counter claim claiming a share in the suit properties and her counter claim came to be dismissed. Said Smt. Jayamma had not preferred any appeal against rejection of her counter claim and therefore the present appeal filed by her is not tenable. It is his further contention that Ex.P.2 (equivalent Ex.D.114) is registered partition deed dated 29.11.1971 between late Sri. 66 H.M. Hanuma Reddy and his four sons and the same has been admitted in the plaint. Schedule A properties were allotted to the share of late Sri. H.M. Hanuma Reddy and are 7 in number. The measurement of survey No. 24 described in Schedule B is shown more extent. Item No. 5 property bearing survey No. 19 measure 3-1/2 guntas as per Ex.P.2 but it is shown as 13-1/2 guntas in the plaint. It is his further contention that O.S. No. 476/2006 was filed by Smt. Muninagamma daughter of Smt. Jayamma - the plaintiff herein came to be dismissed but the same had not been challenged. It is his further contention that son of plaintiff was allotted a property under the Will and he sold it and the same has been admitted by P.W.1 in her cross-examination. Survey No. 19 had been described in item Nos. 4, 5, 6 and 7 of Schedule A properties and plaintiff restricts to one site bequeathed to Smt. Akkaiamma as stated by her in her cross- examination. P.W.1 has admitted that excess of property has been stated in the plaint. Ex.D.236 includes survey No. 19. It is his further contention that P.W.1 in her cross-examination 67 has admitted that item No. 2 of Schedule A property has been bequeathed in favour of husband of plaintiff and he has sold the said property. It is his further contention that it is the son of Smt. Jayamma who had filed the suit even though Smt. Jayamma was not interested in filing the suit. It is his further contention that respondent No. 115 - Smt. Muninagamma who is the plaintiff in O.S. No. 476/2006 did not join in this appeal.
23. Sri. V. Vishwanath, learned counsel adopted the arguments of Sri. C. Shankar Reddy, learned counsel and further contended that respondent Nos. 102 and 103 purchased site in survey No. 119 by sale deed dated 03.08.2013 (Ex.D.240) and respondent No. 105 and 106 purchased property under sale deeds Ex.D.243 and Ex.D.245. It is his further contention that respondent Nos. 102 to 106 entered into joint development agreement with Southern Developers as per Ex.D.246 and constructed buildings and sold portions. It is his further contention that 68 respondent Nos. 102 to 106 have been added as party defendants in the year 2018 and no relief was sought against them.
24. Sri. Saravana learned counsel appearing for respondent No. 104 (defendant No. 96) has contended that defendant No. 96 purchased site No. 29 in survey No. 19 in the year 1992 by sale deed dated 01.12.1992 as per Ex.D.241 and sale deed dated 11.07.2002 as per Ex.D.242. He has also adopted the arguments of learned counsel Sri. C. Shankar Reddy.
25. Having heard the learned counsel appearing for the parties and on perusal of the records, we are of the considered view that following points would arise for our consideration:
i. Whether the judgment and decree passed by the trial Court in O.S. No. 1754/2006 dated 26.04.2019 suffers from any patent error or the findings recorded by the trial Court is contrary to 69 material evidence available on record calling for our interference?
ii. What order?
26. The relationship between the parties is not in dispute. Appellant/plaintiff Smt. H. Jayamma is the daughter of late Sri. H.M. Hanuma Reddy and Smt. Akkaiamma. Plaintiff had 4 brothers and 7 sisters; defendant No. 1 - Sri. H. Tippa Reddy, defendant No. 2 - Sri. Satyanarayana Reddy, defendant No. 3 - Sri. Venkatesh Reddy, defendant No. 4 - Sri. Anantharama Reddy are the brothers of plaintiff - Smt. Jayamma. Smt. Peddakka, Smt. Chinnakka, Smt. Saradamma, Smt. Savitramma, Smt. Vijayamma, Smt. Sarasamma (defendant No. 36) and Smt. Vanamala (defendant No. 35) are the sisters of plaintiff. According to the plaintiff suit schedule A properties are the joint family properties which had fallen to the share of late Sri. H.M. Hanuma Reddy, under the partition between himself and his brothers vide partition deed dated 29.11.1971. Suit schedule 70 B properties are properties purchased by late Sri. H.M. Hanuma Reddy. Suit schedule C properties are properties purchased by Sri. B. Tippa Reddy (defendant No. 1).
27. It is the contention of appellant/plaintiff that during the partition between late Sri. H.M. Hanuma Reddy and his sons vide partition deed dated 29.11.1971 daughters were not given any share and therefore it is not binding on them. On that count plaintiff contended that there is no valid partition between the plaintiff and her brothers and they are still in joint possession of suit schedule properties and severance of status has not yet taken into effect. It is further contention of plaintiff that whatever properties were acquired by her brothers, even subsequent to aforesaid partition deed have to be construed as joint family properties as it has been purchased out of the funds generated from joint family properties. It is the contention of defendants that by virtue of a registered partition deed dated 29.11.1971 all the joint family properties of late Sri. H.M. Hanuma Reddy were 71 partitioned among himself and his sons equally and said late Sri. H.M. Hanuma Reddy had alienated/bequeathed/gifted whatever properties that had fallen to his share in the said partition. As far as properties fallen to the share of his sons are concerned, from the date of partition deed they became their exclusive properties and whatever properties that were acquired subsequent to the partition are to be regarded as separate properties of respective sharers. Defendant further contended that no properties were available for partition as on the date of the suit.
28. Undisputedly suit schedule A properties had fallen to the share of late Sri. H.M. Hanuma Reddy by virtue partition deed dated 29.11.1971. Said late Sri. H.M. Hanuma Reddy had 8 daughters and 4 sons. Admittedly there was a partition deed dated 29.11.1971 between late Sri. H.M. Hanuma Reddy and his 4 sons. The said partition deed is at Ex.P.2. Admittedly there was a joint family and coparcenery between late Sri. H.M. Hanuma Reddy and his 4 sons. 72
29. Section 6 of the Hindu Succession Act came to be amended giving status of a coparcener to a daughter. Said Section came into effect with effect from 09.09.2005. Said provision reads as under:
"6. Devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary 73 disposition of property which had taken place before the 20th day of December, 2004.
(2) xxx (3) xxx (4)xxx (5) xxx As per the proviso to subsection (1) of Section 6 of the Act the provision contained in subsection (1) shall not affect or invalidate any dispossession or alienation including any partition or testimony, dispossession of property which had taken place before 20.12.2004. Said provision came up for consideration before the Apex Court in the case of Vineet Sharma Vs. Rakesh Sharma and others, Civil Appeal Nos. 32601/2018 decided on 11.08.2020 wherein the Hon'ble Supreme Court has held:
"129. Resultantly, we answer the reference as under:
i. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after 74 amendment in the same manner as son with same rights and liabilities.
ii. The rights can be claimed by the daughter born earlier with effect from 09.09.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
iii. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 09.09.2005.
iv. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 75
V. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree if a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly".
30. If there was a partition that had taken place prior to 20.12.2004 the said partition cannot be invalidated on the ground that the daughter is given the status of a coparcener under subsection (1) of Section 6 of the Act. Hence, the plaintiff's contention that partition deed dated 29.11.1971 - Ex.P-2 is not valid or binding on her as she was not a party to the same cannot be accepted. There are 5 sharers under the partition deed dated 29.11.1971 (Ex.P.2) and on looking to 76 the value of the property allotted to each sharer it is apparent that all the 5 sharers have been allotted properties of equal value and therefore, there is no question of inequitable partition also. Thus, under Section 8 of the Hindu Succession Act, 1956 plaintiff can claim partition if late Sri. H.M. Hanuma Reddy died intestate leaving behind him the share allotted to him in the partition deed dated 29.11.1971 or any properties acquired subsequent thereto by him. The properties allotted to the share of late Sri. H.M. Hanuma Reddy in the said partition deed dated 29.11.1971 are as under:
"Land bearing survey No. 23 measuring 0-20 guntas, Sy.No.24 measuring 2 acres 20 guntas, Sy.No.10/1 measuring 1 acre 03 guntas, Sy.No.19 measuring 13 1/2 guntas, 3 1/2 guntas, 0.8 guntas and 8 1/4 guntas situated at Chinnappanahalli village, Krishnarajapura Hobli, Bangalore South Taluk."
Thus, in all total 7 item of properties was allotted to the share of A schedule holder i.e., Sri H.M.Hanuma Reddy. 77
31. The plaintiff has admitted that her father late Sri. H.M. Hanuma Reddy himself had sold some of the properties fallen to his share under the partition deed dated 29.11.1971 either to third parties or to his own children and had bequeathed some of his properties to his grandson, daughters etc. and gifted some of the properties to his daughter Smt. Sarasamma. The said fact is evident from the following documents.
i. Ex.D.1 - certified copy of gift deed dated 27.03.1972 executed by Sri. H.M. Hanuma Reddy in favour of Smt. V. Sarasamma in respect of a portion of survey No. 19 of Chinnappanahalli village, Bengaluru ii. Ex.P.40 - RTC extract for the year 2004-05 in respect of survey No. 10/1 of Chinnappanahalli village, Bengaluru standing in the name of Sri. Venkatesh Reddy and Sri. G.K. Suresh 78 iii. Ex.P.41 - RTC extract for the year 2004-05 in respect of survey No. 19/1 of Chinnappanahalli village, Bengaluru standing in the name of Sri. Satyanarayana Reddy, Sri. Venkatesh Reddy, Sri. P. Lakshmamma, Sri. George Vargees and Sri. Sethu Madhav.
iv. Ex.P. 42 - RTC extract for the year 2003-04 in respect of survey No. 28 of Chinnappanahalli village, Bengaluru standing in the names of Sri. Tippa Reddy, Sri. Hanuma Reddy, Sri. Satyanarayana Reddy and Sri. Venkatesh Reddy v. Ex.P.58 - RTC extract for the years 1998-99 to 2001-02 in respect of survey No. 23 of Chinnappanahalli village, Bengaluru standing in the name of Sri. H. Tippa Reddy, Sri. H.
Satyanarayana Redy, Sri. Hanuma Reddy and Sri. Venkatesh Reddy.
vi. Ex.P.59 - RTC extract for the period from 1993-94 to 1997-98 in respect of survey No. 23 of 79 Chinnappanahalli village, Bengaluru standing in the names of Sri. H. Tippa Reddy, Sri. Satyanarayana Reddy, Sri. Hanuma Reddy, Sri. Venkatesh Reddy.
vii. Ex.P.60 - RTC for the year 1988-89 in respect of survey No. 23 of Chinnappanahalli village, Bengaluru standing in the names of Sri. H. Tippa Reddy, Sri. H. Satyanarayana Reddy, Sri. Hanuma Reddy, Sri. Venkatesh Reddy.
viii. Ex.P.75 and Ex.P.76 - RTC extracts for the period 1982-1988 in respect of survey No. 24 of Chinnappanahalli village, Bengaluru standing in the names of Sri. H. Tippa Reddy, Sri. Venkatesh Reddy, Sri. Anantharama Reddy, Sri. H.
Satyanarayana Reddy, Sri. H.M. Hanuma Reddy and Sri. Abraham ix. Ex.P.86 - RTC extract for the years 1992-1997 in respect of survey No. 10/1A of Chinnappanahalli village, Bengaluru standing in the names of Sri. H. 80 Tippa Reddy, Sri. G.V. Chandrashekar, Sri. C. Ramakrishnappa, Sri. Annadasappa, Sri. Aswath Reddy and others.
x. Ex.P.87 - RTC for the period 1987-1991 in respect of survey No. 10 of Chinnappanahalli village, Bengaluru standing in the names of Sri. H. Tippa Reddy, Sri. Venkatarama Raju, Sri. Srinivas Reddy, Sri. Gopal Reddy and others.
xi. Ex.P.88 - RTC for the period 1982 -1985 in respect of survey No. 10 of Chinnappanahalli village, Bengaluru standing in the names of Sri. H. Tippa Reddy, Sri. Venkatarama Raju, Sri. Srinivas Reddy, Sri. Gopal Reddy and others.
xii. Ex.P.89 - RTC for the period 1976-1981 in respect of survey No. 10 Chinnappanahalli village, Bengaluru standing in the names of Sri. M.G.
Vasantaiah, Sri. H. Tippareddy and Sri.
Venkataraju
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xiii. Ex.D.95 - 9 RTC extracts in respect of survey No. 24 of Chinnappanahalli village, Bengaluru for the period 1972-1982, 1984-2000, 2017-18 standing in the names of Sri. H. Tippa Reddy, Sri. Venkatesh Reddy, Sri. Anantharama Reddy, Smt. Annamma Abraham, Sri. K.V. Anthony, Sri. K. Ganeshan and Sri. Satyanarayana Reddy.
xiv. Ex.D.120 - certified copy of sale deed dated 25.11.1974 executed by Smt. Narasamma wife of Ramachandra Reddy in favour of Smt. Kathainiyamma in respect of survey No. 19/1 of Chinnappanahalli village, Bengaluru xv. Ex.D.157 - certified copy of partition deed dated 03.05.2012 entered into between Sri. Tippa Reddy, Smt. T. Kamalamma, Sri. T. Muralidhar, Sri. T. Vijayakumar, Sri. T. Umashankar in respect of survey Nos. 15/1, 14/1, 14/2 and 21/2 xvi. Ex.D.236 - certified copy of registered sale deed dated 14.05.1986 executed by Sri. H.M. Hanuma 82 Reddy in favour of P.W.1 - Smt. H.G. Lakshmi in respect of survey No. 19 of Chinnappanahalli village, Bengaluru xvii. Ex.D.237 - certified copy of sale deed dated 25.08.1975 executed by Sri. H.M. Hanuma Reddy in favour of Smt. V. Saroja in respect of site No. 19 out of survey No. 19 of Chinnappanahalli village, Bengaluru
32. Aforesaid fact is also evident from the admissions of P.W.1 elicited in the cross examination of P.W.1 as noted herein below:
"To some extent, I know how Hanumareddy dealt about the properties allotted to his share in the year 1971. Hanumareddy has executed a sale deed in favour of Sathyanarayanareddy for an extent of 24 guntas in Surveyno.24 (page No. 27) It is true that Hanumareddy has executed a gift deed in favour of Sarasamma regarding one of the property got by him under partition of 1971.
Now I see the certified copy of the said gift deed 83 dated 27.3.1972 executed by Hanumareddy in favour of Sarasamma. It is marked as Ex.D.1. The typed copy is marked as Ex.D.1A.
It is true in the said gift deed, Hanumareddy refers to the property obtained by him in the partition of 1971. (page No. 27 & 28) In Survey No. 19, 3-1/2 guntas is given to the temple under the will by Hanumareddy. (page No.
28) It is true that some of the properties were sold as sites without converting the land for nonagricultural purpose and for that reason, the pahani still continued in the name of Hanumareddy. (page No. 28) Hanumareddy had sold sites in about 2 acres of land in Survey no. 19. It is true the purchasers of sites in Survey no. 19 have built their house and are residing along with their families. (page No. 33) (items 4 to 7 of Schedule A) In item No. 6 of schedule A, it is mentioned as measuring 13-1/2 guntas whereas it only measures 3-1/4 guntas. (page No. 33) To some extent, I know how Hanumareddy dealt about the properties allotted to his share in the year 1971. Hanumareddy has executed a sale deed in 84 favour of Sathyanarayanareddy for an extent of 24 guntas in Surveyno.24 (page No.27)."
33. Thus, it would emerge from the aforesaid documents and admissions found in cross-examination of P.W.1 that late Sri. H.M. Hanuma Reddy had not left behind any piece of property to be partitioned amongst his heirs and late Sri. H.M. Hanuma Reddy had alienated, bequeathed or gifted the properties described in Schedule A and B and therefore they were not available for partition as on the date of the suit.
34. Insofar as schedule C properties are concerned, they are acquired by defendant Nos. 1 and 2 after being separated from joint family i.e, after partition deed dated 29.11.1971. It is trite law that once severance of status is established, whatever properties acquired thereafter would be recognized as separate properties of respective acquirers. Therefore, plaintiff cannot claim any share in the suit schedule C properties.
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35. Learned Senior counsel appearing for appellant/plaintiff contended that the Will dated 14.05.1986 (Ex.D.236) has not been proved by examining the attesting witness. It is his further contention that mere marking of the said Will as an exhibit does not dispense with proof and he places reliance on the decisions of the Apex Court in the cases of Sait Tarajee Khimchand and others Vs. Yelamarti Satyam Alias Satteyya and others reported in 1972 (4) SCC 562 and LIC of India Vs. Ram Pal Singh Bisen and others reported in 2010 AIR (SCW) 1900 supra. Certified copy of the said Will dated 14.05.1986 came to be confronted to P.W.1 during her cross-examination. P.W.1 admitted the Will as executed by her father and as such, it came to be marked. The relevant portion of cross-examination of P.W.1 (page 88 &
89) in that regard is extracted and it reads as under: "Now I see registered copy of Will executed by late Hanuma Reddy in favour of my husband it is marked as ex D. 236. It is true to say that in Ex.D.236 there is a reference of the partition of the year 1971 with regard properties allotted to the share of Hanuma 86 Reddy. My husband has sold the properties bequeathed under Ex.D.236. It is true to say that my husband has sold the said sites stating that it was given to him by his grandfather under the Will. (page No. 89) Under that will some properties are bequeathed in favour of son of Jayamma who is my husband. I have gone through the contents of the Will. The property allotted under the will in favour of my husband has been sold by my husband in the year 2005-06. (page No. 27)."
(emphasis supplied by us)
36. It is curious to note that P.W.1 is the daughter-in- law of plaintiff. One of the sons of plaintiff - Sri. P. Dhanaraj is beneficiary under the said Will dated 14.05.1986. Said son of plaintiff who is the beneficiary under the Will has sold the property which he had acquired under the said Will. It is well settled that for the Court to act upon an admission, particularly in the cross-examination, it is absolutely essential that the said admission must be clear, definite, 87 certain, unequivocal, unambiguous and binding upon the person making such an admission. On looking to the evidence of P.W.1 it is clear that the said admission is clear, definite, certain, unequivocal, unambiguous and it is binding on her. As per Section 58 of the Indian Evidence Act fact admitted need not be proved. P.W.1 has admitted the execution of the Will dated 14.05.1986 by late Sri. H.M. Hanuma Reddy and therefore examining attesting witness in proof thereof is not necessary when the defendants have used the said Will for the purposes of establishing that late Sri. H.M. Hanuma Reddy had bequeathed his properties and no properties were available for partition. P.W.1 has also admitted that defendant Nos. 1 and 2 have not sold any properties allotted to the share of late Sri. H.M. Hanuma Reddy. Further, she has admitted that defendant Nos. 1 and 2 have purchased different properties out of the income derived from the properties allotted to their share in the 1971 partition. On perusal of the evidence on record it is clear that by the time the suit was filed the schedule properties were 88 carved into residential plots and residential apartment building has been constructed thereon.
37. Learned Senior counsel appearing for the appellant/plaintiff has contended that Smt. Akkaiamma predeceased her husband late Sri. H.M. Hanuma Reddy and therefore item No. 4 in schedule A bequeathed to said Smt. Akkaiamma reverts back to late Sri. H.M. Hanuma Reddy and therefore plaintiff is entitled to a share in the said property. There is no pleading by the plaintiff in that regard. Therefore, the said contention raised, that too at the appellate stage, cannot be considered. Whatever sale transactions that had taken place were after 1971 i.e., after severance of status. Therefore, plaintiff is not entitled to question the alienation made by her father and brothers.
38. On re-appreciation of the entire evidence on record, we are of the considered opinion that judgment and decree passed by the trial Court does not suffer from any illegality or infirmity which calls for our interference. 89
Hence, we proceed to pass the following;
ORDER
(i) Appeal is dismissed.
(ii) Judgment and decree passed in O.S. No. 1754/2006 dated 26.04.2019 by the XXII Additional City Civil and Sessions Judge, Bengaluru is hereby confirmed.
(iii) No order as to costs.
(iv) Registry is directed to draw the decree accordingly.
SD/-
JUDGE SD/-
JUDGE LRS.