Karnataka High Court
Smt J Vasanth Kumari vs Smt Saraswathamma on 9 May, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
-1-
NC: 2024:KHC:17139
CRP No. 60 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
CIVIL REVISION PETITION NO. 60 OF 2022 (IO)
BETWEEN:
1. SMT.J.VASANTH KUMARI,
W/O SRI.K.H.RAJAGOPAL,
D/O LATE M.JAYARAM,
AGED ABOUT 52 YEARS,
R/AT 2ND MAIN, 5TH CROSS,
KURUBARAPET, KOLAR-563 101.
...PETITIONER
(BY SRI. KASHYAP.N.NAIK., ADVOCATE)
AND:
1 . SMT SARASWATHAMMA
W/O LATE M JAYARAM
AGED ABOUT 67 YEARS
RESIDING AT NO.MUNIYAPPA ESTATE 53
KENGERI HOBLI, SRINIVASAPUR
Digitally BENGALURU SOUTH TALUK
signed by
KIRAN BENGALURU-560002.
KUMAR R
Location:
HIGH
COURT OF
2 . SMT J SHASHIKALA
KARNATAKA D/O LATE M JAYARAM
AGED ABOUT 54 YEARS
RESIDING AT NO.92 15TH CROSS
1ST MAIN MTS LAYOUT
BENGALURU-560060.
3. SMT J PUSHPALATHA
D/O LATE M JAYARAM
AGED ABOUT 50 YEARS
RESIDING AT NO. MUNIYAPPA ESTATE 53
KENGERI HOBLI, SRINIVASAPUR
BENGALURU SOUTH TALUK
-2-
NC: 2024:KHC:17139
CRP No. 60 of 2022
BENGALURU-560002.
4 . SRI MURALIDHAR
S/O LATE M JAYARAM
AGED ABOUT 43 YEARS
RESIDING AT NO. MUNIYAPPA ESTATE 53
KENGERI HOBLI, SRINIVASAPUR
BENGALURU SOUTH TALUK
BENGALURU-560002.
5 . SRI B MOHAN REDDY
S/O LATE B MULYAM REDDY
AGED ABOUT 80 YEARS
RESIDING AT NO.506,
BEM LAYOUT 5TH STAGE
RAJA RAJESHWARI NAGAR
BENGALURU-560098.
6 . SRI B ARUNA REDDY
W/O SRI B MOHAN REDDY
AGED ABOUT 72 YEARS
RESIDING AT NO.506
BEM LAYOUT 5TH STAGE
RAJA RAJESHWARI NAGAR
BENGALURU-560098.
7 . SRI BHADRACHALAM
S/O T ANJANAIAH NAIDU
AGED ABOUT 66 YEARS
RESIDING AT NO.747
5TH CROSS B S K 1ST STAGE
2ND BLOCK, BENGALURU-50
MANAGING PARTNER OF M/S PRAKRUTHI
PROPERTIES HAVING ITS OFFICE AT NO.140
6TH C MAIN
NEAR JAYANAGAR POLICE STATION
JAYANAGAR 4TH BLOCK
BENGALURU-560041.
8 . SRI ANAND
S/O LATE CHANGAM NAIDU
-3-
NC: 2024:KHC:17139
CRP No. 60 of 2022
AGED ABOUT 61 YEARS
RESIDING AT NO.278 2ND CROSS
2ND BLOCK B.S.K III STAGE
BENGALURU-560085
MANAGING PARTNER OF M/S PRAKRUTHI
PROPERTIES HAVING ITS OFFICE AT NO.140
6TH C MAIN
NEAR JAYANAGAR POLICE STATION
JAYANAGAR 4TH BLOCK
BENGALURU-560041.
...RESPONDENTS
(BY SRI.NAGARAJ.S.JAIN, ADVOCATE FOR R-1;
SRI. S.GANGADHARA AITHAL, ADVOCATE FOR R-4;
SRI.B.PRAMOD, ADVOCATE FOR R-7;
R-2 & R-3 ARE SERVED AND UNREPRESENTED;
VIDE ORDER DATED NOTICE TO R-5, R-6 & LRS OF
DECEASED R-8 IS DISPENSED WITH)
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 30.11.2021 PASSED IN
O.S.No.1492/2019 ON THE FILE OF THE C/C XXX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY,
DISMISSING THE IA.No.8 FILED UNDER ORDER VII RULE 11
READ WITH SECTION 11 OF CPC., FOR REJECTION OF PLAINT.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.04.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. J. Vasanth Kumari--the 1st defendant is before this
Court challenging the rejection of her application filed
under Order VII Rule 11 of the Civil Procedure Code, 1908
("the CPC") praying for rejection of the plaint filed by her
mother--Saraswathamma.
NC: 2024:KHC:17139
2. Saraswathamma instituted a suit in
O.S.No.1492/2019 against her three daughters namely--J.
Vasanth Kumari (defendant No.1), J.Shashikala (defendant
No.2), J.Pushpalatha (defendant No.3), and her son
Muralidhar (defendant No.4) apart from four other
defendants.
3. In this suit, she sought four prayers.
a. The first prayer was for cancellation of the gift
deed dated 01.07.2004 which she had executed
in her daughter--J.Vasanth Kumari's favour.
b. The second prayer was for a declaration that
the partition deed dated 26.06.2002 executed
on 26.06.2002 between herself and her four
children was not binding on her.
c. The third prayer was for a declaration that the
sale deed dated 02.04.2005 executed by her
daughter--J.Vasanth Kumari (the beneficiary of
NC: 2024:KHC:17139
the gift in favour of defendants 5 and 6) was
not binding on her.
d. The fourth prayer was for a declaration that the
sale deed dated 24.02.2010 executed in favour
of the 7th defendant was not binding on her.
4. As could be seen from the above, the prayers in the
suit were in relation to a partition deed dated 26.06.2002
executed between herself and her children; a gift deed
dated 01.07.2004 executed by her in favour of J.Vasanth
Kumari; a sale deed dated 02.04.2005 executed by
J.Vasanth Kumari in favour defendant Nos. 5 and 6; and,
lastly, a sale deed dated 24.02.2010 executed in favour of
defendants 7 and 8. In other words, the prayers in the suit
related to instruments of the year 2002, 2004, 2005 and
2010. However, the suit was admittedly filed in the year
2019.
5. It was the case of Saraswathamma that item No.1
was the property of her husband and on his death, she
NC: 2024:KHC:17139
had succeeded to said property. It was her further case
that item No.2 was the property belonging to her father
and on his death, by virtue of being the sole legal heir, she
had inherited the property. She also claimed that on the
death of her husband, her husband's property was
mutated in her name. She also stated that her husband
owned item No.3--house property and that he also owned
another property bearing Sy.No.279 measuring 14 guntas
and on the death of her husband, her name has been
entered in respect of these properties.
6. She stated that after her husband's death, she had
obtained the permission of the Deputy Commissioner for
using said land for non-agricultural purpose as provided
under Section 95 of the Karnataka Land Revenue Act,
1964. She submitted that the entire family had a very
good relationship with her even after the death of her
husband in the year 2016. She, thereafter, made the
following averments in the plaint:
NC: 2024:KHC:17139
"12. The plaintiff submits that, on love and affection
and intention to look after the plaintiff in old age, she
had executed the registered gift deed dated
01/07/2004 infavour of the 1st defendant on the above
said schedule property item No.1 to 3.
13. It is submits that, the plaintiff had received the
summons from this Hon'ble Court that, the defendant
No.2 and 3 has filed the suit for partition against the
plaintiff and other defendants in OS No.2116/2016. In
the said case the plaintiff has filed her written
statement. After that she came to know that without
the knowledge of plaintiff and fraudulently on the
plaintiff, the defendant No.1 to 4 has took the partition
the above said properties on 26/05/2002 colluded by
the defendant No.1 to 4. These are all things are not
have knowledge and not at all participated in the said
partition. The plaintiff further submits that the said
partition is not at all the knowledge to the plaintiff and
the defendant No.1 to 4 have played fraud with the
plaintiff and got the partition. In the said partition
shows that the plaintiff have the share only rent of the
property bearing khata No.1812, property No.107/55,
which is hare of the 4th defendant as per the above
said partition. But till today she has not been received
any rent from any one. It is clearly shows that, the
defendant No.1 to 4 are played fraud among the
26/06/2002 is not binding upon the plaintiff. It is
further submits that, if the plaintiff have the
NC: 2024:KHC:17139
knowledge about the said partition she doesn't come
forward to execute the above said gift deed in favour
of the 1st Defendant and the 1st defendant have got
the share in the schedule properties and executing the
gift deed was done not arise. These are all facts only
came to know that when the 1st defendant has filed
her written statement in OS No.2116/2016 before this
Hon'ble court. The plaintiff is the old aged lady and she
believed her children in all the way and all angle. But
the children are spoiled her life and faith."
7. As could be seen from the above averments,
Saraswathamma categorically admitted that she had
executed the registered gift deed dated 01.07.2004 in
respect of three items of the suit schedule property in
favour of her daughter--J.Vasanth Kumari (defendant
No.1).
8. It is also apparent from the above pleadings that she
did not attribute fraud, coercion, undue influence or any
kind of wrongdoing on the part of her daughter in securing
the gift deed.
NC: 2024:KHC:17139
9. As already stated above, the suit was filed in the
year 2019 in respect of the gift deed dated 01.07.2004. It
is therefore clear from the reading of the plaint averments
itself that the suit for declaration that the gift deed
executed by her on 01.07.2004 in favour of her daughter
was hopelessly barred by limitation, since the suit was
filed 15 years after the execution of the gift deed which
was not even alleged to have been obtained by fraud.
10. For this reason, reliance placed by the counsel for
the respondents on the judgment rendered by the
Supreme Court in Shaukathussain Mohammed Patel1
would be of no avail since the Supreme Court therein had
decided on the aspect of limitation on finding the element
of fraud and deception.
11. Saraswathamma, in paragraph 13 of her plaint, also
admitted that her other two daughters--J.Shashikala and
J.Pushpalatha had filed a suit for partition against her and
Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara,
(2019) 10 SCC 226.
- 10 -
NC: 2024:KHC:17139
the others in O.S.No.2116/2016 and in this case, she had
filed a written statement, following which she realised
that, without her knowledge, her children had partitioned
the properties on 26.05.2002 by colluding with each other
and she had not participated in this partition.
12. At the outset, it is to be stated that the fact that
Saraswathamma was a party to the partition deed was not
specifically denied and she did not contend that she did
not execute the partition deed but she only stated that she
had not participated in the partition.
13. Firstly, it may be stated here that the partition deed,
being of the year 2002, could not be challenged by filing a
suit in the year 2019, and, secondly, this partition would
become irrelevant by virtue of her own admission in
paragraph 12 of the plaint that she had executed the
registered gift deed on 01.07.2004 in favour of her
daughter--J.Vasanth Kumari. In other words, even if the
partition deed of the year 2002 is ignored, for the sake of
argument, the fact that Saraswathamma admits that she
- 11 -
NC: 2024:KHC:17139
had executed the registered gift deed in the year 2004
whereby she gifted the suit properties to her daughter--J
Vasanth Kumari, would, by itself, indicate that she had lost
all her rights over the suit properties in the year 2004
itself. It is obvious that if she had any grievance about the
gift deed, she ought to have instituted the suit within a
period of three years from the date of execution of the
above said gift deed.
14. It may also be pertinent to state here that she
admitted in her plaint that she had executed the gift deed
out of love and affection to her daughter, and, more
importantly, she did not plead an element of fraud,
coercion or undue influence against her daughter in the
matter of the execution of the gift deed. Since the suit has
been filed 15 years after the execution of this gift deed,
per the plaint averments itself, it is clear that the prayer in
the suit was barred by the law of limitation.
15. It may also be pertinent to state here that the
challenge to the other two sale deeds of the year 2005 and
- 12 -
NC: 2024:KHC:17139
2010 were also barred by limitation, by virtue of the suit
being filed in the year 2019.
16. The Trial Court, however, without noticing these
facts, has rejected the application filed by J.Vasanth
Kumari under Order VII Rule 11 of the CPC -- firstly, on
the ground that the averments in the plaint could be
adjudicated only after a full-fledged trial; and secondly, on
the ground that there was a recurring cause of action till
the properties were partitioned, as a result of which the
cause of action would survive.
17. It may be pertinent to state here that
Saraswathamma did not even seek partition in her suit,
but she only sought a declaration that the gift deed
executed by her and the partition deeds of the year 2004
and 2002 were to be cancelled and declared as not binding
on her. Therefore, the reasoning of the Trial Court that
Saraswathamma had a recurring cause of action cannot be
accepted.
- 13 -
NC: 2024:KHC:17139
18. I am thus of the view that the application filed by
J.Vasanth Kumari under Order VII Rule 11 of the CPC
seeking rejection of the plaint filed by Saraswathamma
would have to be necessarily allowed and the plaint filed
by her, therefore, stands rejected.
19. The Civil Revision Petition is accordingly allowed.
Sd/-
JUDGE
PKS
