1

IN THE COURT OF THE XIV ADDL.CITY CIVIL & SESSIONS JUDGE BANGALORE
CITY (CCH-14)
This the 19th day of January 2020
Present: Smt. Lalitha D. Patil,
B.Com., LL.B(Spl),
th
14 Addl. City Civil & Sessions Judge, Bangalore City.

O.S.No.4769/2011

PLAINTIFFS: Smt.Radhamma,
D/o Late V.N. Narayanappa,
Aged about 64 years,
R/at. No.247,
3rd Cross, 3rd Block,
Jayanagar,
Bengaluru-560 011.

(By Sri. N.K. Ramakrishna, Adv.,)

Vs.

DEFENDANTS: 1 Sri. V.N. Rajanna

S/o Late V.N.Narayanappa Major,
R/at. No.83/12
7th Cross, Malleshwaram
Bengaluru - 560 003.

2 Sri. V.N. Girish,

S/o Late V.N.Narayanappa Major,
R/at. No.83/12
7th Cross, Malleshwaram
Bengaluru - 560 003.

(By Sri.D.L.R. Advocate)

 Date of institution of the 28.03.2011
suit:
Nature of the suit: Partition

Date of commencement of 21.12.2013

recording of evidence:

Date on which Judgment 19.01.2020

was pronounced:

Duration Days Months Years

22 9 8

JUDGMENT

This suit is filed by plaintiff seeking the relief of partition and separate possession of 1/3rd

share in suit schedule property by metes and bounds.

2. The averments of plaint are as follows:

Suit properties are shown in schedule A and B. Plaintiff is the sister of defendants. Father of

plaintiff and defendants No.1 and 2 namely Sri. V.N.Narayanappa, during his life time

constituted a Hindu joint family consisting of himself and his wife Narayanamma and plaintiff

and defendants. He was the Khartha of the Joint Hindu undivided family. Plaintiff's father

acquired right, titled and interest in respect of immovable property i.e. agricultural land

bearing Sy.No.74/301 measuring 16 guntas situated at Kodigehalli village, under the registered

sale deed and name of the father of plaintiff was mutated in revenue records. As per M.R.

No.2/1984-85 he was in possession and enjoyment of cultivation of the suit property. During

his life time plaintiff's father also acquired residential property No.83/12, 7 th Cross,

Malleshwaram, Bengaluru. Thereafter he put construction of the residential building over the

suit properties. Suit properties are self acquired properties of plaintiff's father Narayanappa.

Father of plaintiff and defendants died intestate, leaving behind plaintiff and defendants to

succeed the suit properties as his legal heirs. Mother of plaintiff and defendants pre- deceased

her husband. After death of Narayanappa i.e. father of defendants No.1 and 2 have became joint

owners of suit schedule properties and defendants No.1 and 2 continued to residing in
schedule A and B properties and they are managing the affairs of the Hindu joint family.

Schedule A property came to be mutated in the name of defendants No.1 and 2. in his sale deed

defendant No.1 and 2 were managing affairs of the joint family but they are recently acting

contrary to the interest of the joint family. Plaintiff shockingly in the first week of February

learnt on defendants have intention to dispose of the schedule A property and to deprive the

plaintiff as right, title and interest over the said property. Thereafter plaintiff approached

defendants and requested to effect partition. Plaintiff issued notice on 10.02.2011 and

demanding her share in suit schedule property but defendants have not come forward to effect

partition. Hence plaintiff constrained to file this suit seeking 1/3rd share in the suit property

and prayed to decree the suit.

3. After service of suit summons, defendants No.1 and 2 appeared through their counsel, and

defendant No.1 filed written statement and defendant No.2 has not filed written statement. In

written statement of defendant No.1 he denied the case of the plaintiff. However relationship

between the parties is admitted. Defendant No.1 denied that the plaintiff, father of plaintiff and

defendant constituted undivided joint family of suit property are self acquired properties of

V.N.Narayanappa. It is contended that plaintiff got married in the 1969 and went out of joint

family. The marriage expense of plaintiff was borne by the defendants and their father. It is also

denied that plaintiff is in joint possession of suit property. It is contended that in the year 1969

plaintiff lost the joint family status and she joined her matrimonial house. It is contended that

during life time of father of plaintiff's marriage in the year 1969 during life time of his family he

incurred substantial money for the marriage expenses as well as providing residential

accommodation to the plaintiff by selling agricultural land and Narayanappa had purchased

two properties i.e. Gramatana property bearing khata No.791 in the name of plaintiff towards

her share. Thereafter plaintiff has sold the share in favour of Venkataswamy in on 03.12.2012.

in order to solve financial problems in the consent of father as well as defendants. Defendant

did not raised any objection for alienation since the father had assured that rest of the suit

property allotted between them. Plaintiff again sought financial assistance from the defendants
and his father. His father again sold another property with the consent of defendants and after

gave entire sale consideration amount to the plaintiff. The plaintiff after left the parental house

happily resided with her husband with all financial support of the father and as and when

required by the plaintiff. In spite of the same plaintiff has greedy person availed financial

assistance now and then until the death of father. After death of the father defendant taking

care financial problem of plaintiff by amending written statement it is contended by the

defendants that suit schedule A property was acquired by KIADB in the year 2007 and suit

schedule A property not in existence and plaintiff never in possession of schedule A property.

Hence plaintiff is not entitled for share in schedule A property. Plaintiff has not visited the

defendant from past 15 years. Hence he is not in possession and enjoyment of suit schedule

property during life time of his father executed will dated 15.05.2003 suit schedule property

bequeathing since he took care of him till he passed away and his mother predeceased his

father. Defendant No.1 s absolute owner of suit schedule property. First defendant is owner of

site measuring 30X40 situated at Nagarabhavi in favour of plaintiff and the plaintiff has sold the

property for valuable consideration, keeping all these aspect his father bequeathed in his

favour. Suit of the plaintiff is not maintainable. Hence prayed to dismiss the suit.

4. In order to prove plaintiffs' case, plaintiff herself examined as PW.1 and got marked 51
documents at Ex.P.1 to P.51. Defendant No.1 himself examined as D.W.1 and got 1 document at
Ex.D.1.
5. Heard arguments of plaintiff's side. Perused the records.
6. Based on the above pleadings of the parties, following points arise for my consideration:
1. Whether plaintiff proves that schedule properties are
undivided joint family properties of plaintiff and defendants?
2. Whether the plaintiff is entitled for the relief of partition
and separate possession of her 1/3rd share?
3. Whether the plaintiff is entitled for the relief of permanent
injunction as prayed?
4. Whether the defendants proves that V.N.Narayanappa had
purchased two properties in Gramatana property bearing Khata
No. 791 in the name of plaintiff towards her share as pleaded in
para No.11(a) of the written statement ?
 5. Whether court fee paid is insufficient?
6. What order or Decree?
Additional Issue:
7. Whether defendant No.1 proves that, his father had
executed will dated 15.05.2003 bequeathing suit schedule
property in his favour?
8. My findings on the above Points are:
Issue No.1: In Affirmative
Issue No.2: In Affirmative
Issue No.3: In Negative
Issue No.4: In Negative
Issue No.5: In Negative
Issue No.6: As per final order for the following;
Add. Issue No.1: In Negative

REASON S

9. Issue Nos.1, 2 and 4 and Addl. Issue No.1:

These issues are interrelated to each other and I have taken together for common discussion in

order to avoid repetition.

10. To prove plaintiffs' case, examination in chief filed on affidavit relating to PW1. In

evidence of PW1 she reiterated the plaint averments. Plaintiff produced genealogical tree.

Relationship between the parties is admitted one. The plaintiff has produced RTC extract of the

suit schedule A property for the year 2001-02 to 2010-11 are marked at Ex.P.1 to P.10. On

perusal of the same it reveals that in Ex.P.1 to P.4 are in the name of V.N.Narayanappa i.e. father

of plaintiff is appearing in owners column and as per M.R.No.2/1984-85 and in the year 2006-

07 name of his son i.e. defendant No.1 and 2 entered which is seen from Ex.D.10.

11. In written statement of defendant No.1 he has stated contending that suit schedule A

property acquired by KIADB in the year 2007 and suit schedule A property is not existence

etc. It is to be noted that defendant No.1 examined as PW1. In this affidavit he stated that

during life time of his father not acquired right, title and interest over the suit schedule A

property. The said suit schedule A property is acquired by BDA. But in this regard defendant has
not produced any documents. In the cross of DW1, he admitted that the suit properties are is

self acquired property of his father. During his life time. Parents and all the children were

leaving together, his mother predeceased father and during the life time of his father no any

family arrangement was made. He further admitted that his father purchased the site and

constructed building out of his own income i.e. schedule B property and have two portion in his

house. In one portion defendant No.1 is residing and in another portion defendant no.2 is

residing etc.

12. It is to be noted that when the case is posted for further cross of DW1 he remained

absent. He did not offered to tender further cross examination, defendants goes to prove that

schedule A property is acquired to KIADB etc., no any documents produced on their behalf.

13. Further plaintiff has produced certified copy of sale deed dated 04.04.2003 executed by

one Shamappa in favour of V.N.Narayanappa i.e. plaintiff's father. Plaintiff has produced 2

Encumbrance certificate at Ex.P.16 and 17 in respect of two sites bearing No. 6 and 7 i.e. suit

schedule B properties purchased by father of the plaintiff from one Shamappa. Plaintiff

produced khata extract, Death certificate of her father at Ex.P.18 & P.19. Plaintiff also produced

all notices issued to revenue officer dated 27.03.2013 objecting to transfer the khata registered

in respect of suit schedule B property in favour of defendants stating that partition of suit is

pending between the parties. Plaintiff has produced 3 mutation extract dated 20.11.2003 which

show that in Sy.No.74/346 acquired 4 guntas of land by KIADB. Plaintiff also produced RTC

extract of Sy.No.299 and 4/346 and 74/323. These documents reveals that said properties are

standing in the name of Annappa, Sy.No. 323 and 74/2 standing in the name of defendant No.1.

suit schedule A property No. 74/301 totally measuring 16 acres. The mutation entry shows

that only 4 acres of land acquired by KIADB. Therefore, it is contention of the defendants that

suit schedule A property is not in existence and is not acceptable. In respect of suit schedule B

property is concerned that the plaintiff has produced certified copy of sale deed at Ex.P.15. In

the cross examination of DW1 given clear cut intimation that his father constructed the house

in B schedule property.
14. In the cross examination of PW1 it is suggested that defendants purchased B schedule

property out of earnings of themselves and their wives and suit property is not a property of

their father, and 4 acres of land out of 'A' schedule property belongs to her father and

remaining land was purchased by defendants out of their own income etc., suggestions put to

PW1, in her cross examination, she specifically denied the same that defendants not produced

any documents to prove their defence. By amending written statement, defendants taken

contention that plaintiff's father spent huge amount. Suit schedule A property not in existence

and first defendant is owner of said property measuring 30X40 situated at Nagarabhavi and his

father executed a will in his favour etc.

15. But in order to prove these contentions absolutely there is no any material placed by the

defendant to prove such contention. In respect of his father favour executed will deed dated

15.03.2003, though DW1 produced will deed, but defendant unable to prove the said will by

examining the attesting witnesses which is mandatory under the provision of law. Further in the

para No.11 of the plaint defendant No.1 while taken into consideration that his father

Venkataswamy had purchased 2 properties out of Gramatana property bearing khata No.791 in the

name of plaintiff towards her share. In this regard also no any documents produced by the

defendant. Even PW1 is not cross examined at this point, except suggesting that at the time of her

marriage she sold 30X60 site with permission of father and her father give jewelry to her also

contributed for education expenses of her children all the suggestion denied by the PW1 and the

said fact is not proved by placing any documents. Considering the facts and circumstance of the

case and material placed on record I am of the opinion that plaintiff has proved at suit schedule

properties are joint family properties. She has get 1/3rd share. Defendants are unable to prove the

contention taken in the written statement. Therefore, I answered issue No.1 and 2 in the

affirmative and issue No.4 and Addl. issue No.1 in the Negative.

16. Issue No.3: Plaintiff has filed this suit for relief of permanent injunction restraining the

defendant from interfering her peaceful possession and enjoyment of the suit schedule

property and 1/3rd share in the suit property. It is the case of the plaintiff that she is in joint
possession and enjoyment of the suit property inherited by her father. No T.I. can be granted

against co-partner in respect f joint family properties. Therefore, I am of the opinion that,

plaintiff is not entitled for injunction as sought. Hence I answered additional issue no.1 in the

negative.

17. Issue No.5:- In the written statement taken the contention that court fee paid is in

sufficient. This suit is filed by the plaintiff seeking her relief of partition and separate

possession of her 1/3rd share and court fee is paid under Sec.32 of court fee and suit valuation

act which is proper. Therefore, issue No.5 is answered in the negative.

18. Issue No.6: In view of my finding on issues No. 1 to 4 in the affirmative, issue No.5 in the

negative and additional issue No.1 in the negative and, I proceed to pass the following:

ORDE R

Suit is decreed with cost.

Plaintiff is entitled for 1/3rd share in the suit properties by metes

and bounds. Defendant No.1 and 2 are entitled for 1/3rd share
each in the suit schedule property. Division (partition) in respect
of suit schedule properties to be effected through court
commissioner.
Draw preliminary decree accordingly.

(Dictated to the Judgment Writer, computerized print out taken

thereof is corrected, signed and pronounced by me in Open Court
th
on this the 19 day of January, 2020).

(SMT. LALITHA D. PATIL)

XIV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
 ANNEXURE

List of witnesses examined for the plaintiff:

Pw.1: Smt. Radhamma

List of documents marked for the plaintiff:

Ex.P.1 : Genealogical tree

Ex.P.2 to P.10
: RTC extracts
Ex.P.11 : Copy of legal notice Ex.P.12

: Postal receipts Ex.P.13

: Postal receipts
Ex.P.14 : Postal acknowledgment
Ex.P.15 : Certified copy of sale deed dated 04.04.1963
Ex.P.16 & P.17
: 2 Encumbrance certificate
Ex.P.18 : Khata extract
Ex.P.19 : Death extract
Ex.P.20 : Office copy of objection petition filed with BBMP
Ex.P.21 to P.23
: 3 certified copy of mutation extracts
Ex.P.24 to P.51
: Copy of RTC extracts

List of witnesses examined for the defendants:

D.W.1 - V.N. Rajanna
List of documents marked for the defendants:

Ex.D.1 : Original Will deed dated 15.05.2003 Ex.D.1(a)

: Signature is of father of defendants Ex.D.1(b)

: Signature is of brother of D.W.1 Ex.D.1(c)

: Signature is of Rangaiah

(LALITHA D. PATIL)
XIV ADDL.CITY CIVIL &
SESSIONS JUDGE,
BANGALORE CITY.

Heard reply arguments.

Posted for Judgment.

Call on 19.01.2020.
(LALITHA D. PATIL)
XIV A.C.C & S.J.
BANGALORE

Judgment pronounced in the open Court

(vide separate order)

O R D ER

Suit is decreed with cost.

rd
Plaintiff is entitled for 1/3 share in the suit
properties by metes and bounds. Defendant No.1 and 2
rd
are entitled for 1/3 share each in the suit schedule
property. Division (partition) in respect of suit schedule
properties to be effected through court commissioner.

Draw preliminary decree accordingly.

(LALITHA D. PATIL)
XIV A.C.C & S.J.
BANGALORE
19.01.2020