Smt R Saraswathi vs Sri M Rama Reddy
2022 Latest Caselaw 5520 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.167 OF 2015 (PAR)

BETWEEN:

1 . SMT. R SARASWATHI,
    W/O AMARNATH REDDY,
    AGED ABOUT 37 YEARS,
    RESIDING AT KODLU VILLAGE,
    MADIVALA POST,
    SARJAPURA HOBLI,
    ANEKAL TALUK,
    BANGALORE RURAL DISTRICT,
    PIN CODE:56O 068.

2 . SMT. R VIJAYALAKSHMI,
    W/O N NAGARAJU @ BABU REDDY,
    AGED ABOUT 35 YEARS,
    HULIMAVU VILLAGE,
    BANNERGATTA ROAD,
    BANGALORE - 560 076.
                                      ...APPELLANTS
(BY SRI. MOHAN K.N, ADVOCATE)

AND:

1.     SRI M. RAMA REDDY
       S/O LATE MUNISWAMY REDDY,
       AGED ABOUT 78 YEARS,

2.     SRI. R. RAJARAMA REDDY,
       S/O M RAMAREDDY,
       AGED ABOUT 49 YEARS,
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3.   SRI. ESHWAR REDDY
     S/O M RAMAREDDY,
     AGED ABOUT 40 YEARS,

4.   SRI. R. NAGARAJA REDDY,
     S/O M RAMA REDDY,
     AGED ABOUT 34 YEARS,

     ALL ARE RESIDING AT
     HULLAHALU VILLAGE,
     JIGANI HOBLI,
     ANEKAL TALUK,
     BANGALORE RURAL DISTRICT - 560 073.

5.   SRI. R. SRIKANTAPPA,
     S/O SRI. REDDAPPA,
     AGED ABOUT 75 YEARS,
     R/AT BEGUR VILLAGE,
     BEGUR KASABA,
     BANGALORE SOUTH TALUK,
     BANGALORE DISTRICT - 560 070.

                                          .....RESPONDENTS

(BY SRI. Y.K. NARAYANA          SHARMA,   ADVOCATE   FOR
RESPONDENT NO.5;
VIDE ORDER DATED 18.04.2016, SERVICE OF NOTICE TO
RESPONDENT NOS.1 TO 4 IS HELD SUFFICIENT)

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 17.01.2015
PASSED IN R.A.NO.5034/2013 ON THE FILE OF THE III ADDL.
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, SIT AT ANEKAL, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 21.10.2013
PASSED IN O.S.NO.1122/2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., ANEKAL.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This appeal is filed by the unsuccessful plaintiffs in

O.S. No.1122/2006 challenging the concurrent finding of

fact that the plaintiffs are not entitled to partition and

separate possession of their alleged 1/5th share in the suit

schedule property.

2. The parties will henceforth be referred to as

they were arrayed before the Trial Court. The appellants

herein were the plaintiffs and the respondents herein were

the defendants before the Trial Court.

3. The plaintiffs are the daughters of defendant

No.1 while defendant Nos.2 to 4 are their siblings. The

plaintiffs alleged that defendant No.1 and his brothers

were in possession of ancestral properties left by their

father. At a partition between the defendant No.1 and his

brothers, the suit property fell to the share of defendant

No.1. It is claimed that on 10.05.2000, the defendant

No.1 had executed gift deed in favour of the plaintiffs by

bequeathing half share in the suit property to the plaintiff

No.1 and another half share to the plaintiff No.2. The

plaintiffs claimed that by virtue of these gift deeds, they

became the owners of the suit property. However, the

defendant No.1 in order to deprive the right of the

plaintiffs did not register the said gift deed. On

25.04.2005, defendant No.5 and his workers suddenly

entered into the suit property and on enquiry, they

disclosed that the defendant No.1 had sold the same in

favour of defendant No.5 on 27.11.2003. The plaintiffs

alleged that on verifying the sale deed in favour of

defendant No.5, they came to know that their signatures

were forged as witnesses. They alleged that they had not

signed the said document, but the defendant Nos.1 to 4 in

collusion with defendant No.5 had brought about the sale

deed dated 27.11.2003. The plaintiffs alleged that the

defendant No.1 did not receive any consideration from the

defendant No.5. and therefore, the sale deed was not

binding upon the plaintiffs as well as the defendants.

4. The defendant Nos.1 to 4 did not contest the

suit. Defendant No.5 filed his written statement contending

that the defendant No.1 along with his son had sold the

suit property in terms of the sale deed dated 27.11.2003

for valuable consideration. Consequent thereto, the

revenue records were transferred to the name of

defendant No.5 and that he had been paying land revenue

to the concerned authority in respect of the suit property.

In so far as the alleged gift deed executed by the

defendant No.1 in favour of the plaintiffs is concerned, the

defendant No.5 contended that the said document was

created only for the purpose of the suit. The defendant

No.5 further claimed that the defendant No.1 owned other

properties bearing: Sy. No.235 measuring 22 guntas; Sy.

No.21 measuring 01 acre 07 guntas; Sy. No.37 measuring

27 guntas; Sy. No.40 measuring 08 guntas and Sy. No.23

measuring 01 acre 14 guntas situate at Hullahalli village,

Anekal Taluk, Bengaluru Rural District, and that the

plaintiffs had deliberately not included the said properties

in the suit for partition. They had selectively proceeded

only against the suit property, which indicated that the

plaintiffs and defendant Nos.1 to 4 were colluding to cause

hardship to defendant No.5.

5. Based on these rival contentions, the Trial

Court framed the issues and set down the case for trial.

"1. Whether the plaintiffs prove that the sale deed executed in favour of the 5th defendant by the 1st defendant dated 27.11.2003 in respect of the suit schedule property is not binding on the plaintiff to the extent of her share?

2. Whether the plaintiffs prove that they are entitled for 1/5th share in the suit schedule properties?

3. Whether the plaintiffs are entitled for relief of declaration as prayed for?

4. Whether the defendant No.5 proves that the suit is barred U/sec. 23 of Hindu Succession Act?

5. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?

6. What order or decree?"

6. The power of attorney holder of the plaintiff

No.1 was examined as PW.1 and plaintiff No.2 was

examined as PW.2 and documents were marked as Exs.P1

to P4. Defendants examined a witness as DW.1 and he

marked documents as Exs.D1 to D26.

7. Based on the oral and documentary evidence,

the Trial Court held that the plaintiffs had attested the sale

deed dated 27.11.2003 in terms of which defendant Nos.1

to 4 have sold the property to defendant No.5. The Trial

Court held that the plaintiffs did not approach the Court

with clean hands inasmuch as they did not include all the

properties that were owned by the defendant No.1 in the

suit and no reason whatsoever was assigned for not

proceeding against the other alienated properties. Hence,

it dismissed the suit.

8. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiffs filed Regular Appeal

No.5034/2013.

9. The First Appellate Court secured the records

of the Trial Court, heard the learned counsel for the

plaintiffs and the learned counsel for defendant No.5 and

framed the points for consideration and in terms of its

impugned Judgment and Decree, held that the plaintiff

No.1 though denied her signature on the sale deed-Ex.D1,

she failed to enter the witness box and PW.1 being the

power of attorney holder of the plaintiff No.1 was not a

competent witness to deny the signature of the plaintiff

No.1. It held that PW.2 did not take any effective steps to

establish that the signature on the sale deed at Ex.D1 was

not affixed by her. It also noticed the conduct of the

defendant Nos.1 to 4 who even after selling the property

to defendant No.5 neither filed the written statement

setting out their defence nor entered the witness box. The

First Appellate Court, therefore, held that the defendant

Nos.1 to 4 were acting in tandem with the plaintiffs so as

to deprive the lawful rights of the defendant No.5 in the

suit property. The First Appellate Court noticed the

evidence of PW.2, who deposed that there were other

properties in the family which were not included in the suit

and no reasonable explanation was provided by the

plaintiffs to support that the suit for partial partition was

maintainable. The First Appellate Court, therefore, was

constrained to dismiss the appeal and confirmed the

Judgment and Decree of the Trial Court.

10. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiffs have filed the present Regular

Second appeal.

11. The learned counsel for the plaintiffs /

appellants contended that the signatures of the plaintiffs at

Ex.D1 were not proved in the manner known to law. He

submitted that the plaintiffs were shown as attesting

witnesses in the sale deed, Ex.D1, and they had not joined

in the execution of the sale deed by defendant Nos.1 to 4

in favour of the defendant No.5. Hence, he submitted that

the plaintiffs have not conveyed their right, title and

interest in the suit property in favour of defendant No.5.

12. The property in question is the land bearing

Sy.No.22 of Hullahalli village measuring 30 guntas.

Defendant Nos.1 to 4 had conveyed the suit property to

defendant No.5 in terms of the sale deed dated

27.11.2003. The plaintiffs had taken part in the execution

of the said document though as attesting witnesses.

Therefore, the plaintiffs cannot feign ignorance of the

contents of the document, Ex.D1, and therefore, it has to

be held that the plaintiffs were aware of the nature and

purpose of Ex.D.1. If the plaintiffs have consented to the

said document, they should be treated as consenting to

the sale transaction by the defendant Nos.1 to 4 in favour

of defendant No.5. The way in which the proceedings have

been conducted before the Trial Court indicates a clear

collusion between the defendant Nos.1 to 4 and the

plaintiffs, to upset the sale deed at Ex.D1 executed in

favour of defendant No.5.

13. Therefore, the Trial Court and the First

Appellate Court have rightly assessed the evidence on

record and have rightly dismissed the claim of the

plaintiffs.

14. In view of the above, no substantial question

of law arises for consideration. Therefore, the Appeal is

dismissed.

The pending interlocutory applications stand

disposed off.

Sd/-

JUDGE

sma