IN THE COURT OF XXII ADDL.

CITY CIVIL &

SESSIONS JUDGE
BANGALORE (C.C.H.No.7)

Dated: This the 19th Day of March 2013

Present: Sri. G.K.Somanath, B.Sc.,LL.B.,

XXII Addl.City Civil & Sessions Judge.
Bangalore.

O.S.No. 4 2 0 / 2007

Plaintiff: Smt.Bhagyalakshmi @ Dhanalakshmi,

D/o. late Venkatappa Naidu,
Aged about 38 years, r/at No.613,
Dr.Rajkumar Road, Prakash Nagar,
Bangalore-21.

by Sri.P.M.Siddamallappa, Advocate.
Vs.
Defendants: 1. Sri.B.V.Shankar Naidu,
S/o. late Venkatappa Naidu,
Aged about 48 years, r/at No.613,
Dr.Rajkumar Road, Prakash Nagar,
Bangalore-21.

2. Smt.V.Aswathamma @
Annapurnamma,

d/o. late Venkatappa Naidu,

aged about 50 years, r/at No.895,
7th Main Road, 3rd Cross Road,
Prakash Nagar, Bangalore-21.

D1-by Sri.Ramarao N. Pawar advocate.

D2–by Sri.Jaypee Associates, Advocates.
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O.S.No.420/2007

Date of institution of suit 12-1-2007

Nature of the suit Declaration and Partition &
separate possession and
Mesne profits.
Date of commencement of 9-9-2008
recording of evidence
Date on which Judgment 19-3-2013
Was pronounced
Total duration Days Months Years
07 02 06

JUDGMENT

The Plaintiff has filed this suit against the

defendants for the relief of declaration to declare
that the document styled as “Release-ya-Hakku
Bidugade Pathra” dated 4-5-2005 alleged to have
been registered in the Sub-Registrar’s Office,
Rajajinagar, Bangalore, is bad in law to the extent
of the share of the plaintiff with respect to item
No.1 of the schedule property and sought for
partition directing the defendants to effect partition
of items 1 and 2 of the schedule properties and to
allot half share in favour of the plaintiff in each of
the items 1 and 2 of schedule properties with metes

and bounds, alternatively, if the 1st defendant also

claims share in the 1st and 2nd items of schedule

properties, then to effect partition in all the 3 items

of schedule properties and to allot 1/3rd share each

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in all the items of schedule properties in favour of

plaintiff by metes and bounds and for costs and
such other reliefs.

2. The suit schedule properties have been

described as below:

1. Part and parcel of the property RCC roof

residential house consisting of 3 floors
measuring East-West 48½ +51/2 ft.
North-South 30 ft. bearing present
Municipal No.895/65 BDA No.895, situated
at 8th Main Road, 3rd Stage, Rajajinagar,
BMP Ward No.23, Bangalore, and bounded
on:
East by – property No.886,
West by – road,
North by – property No.894,
South by – property No.896.
2. Part and parcel of the property
bearing No.30/59/7 measuring East-West
49 ft. and North-South 35 ft. vacant site
situated at 3rd cross road, Nandini Layout,
Bangalore and bounded on:
East by – property No.29-60
West by – road,
North by – road,
South by – road.
3. Part and parcel of the property bearing
No.613/40 measuring East-West 56+62/2 ft.
and North-South 30 ft. situated at
Dr.Rajkumar Road, Prakashnagar, 3rd Stage,
Rajajinagar, Bangalore and bounded on:
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O.S.No.420/2007

East by – road,
West by – road,
North by – property No.614,
South by – property No.612.”
3. The plaintiff has set up her case that
Item No.1 of the schedule property as described
above, is the absolute property of Smt.Muniyamma,
wife of late Venkatappa Naidu, who is the mother of
plaintiffs and defendants. She acquired the same
under sale deed executed by BDA dated 15-5-1978
and confirmed with possession certificate dated
14-6-1978. Thereafterwards, she has constructed
three storied building in the said property and let
out to tenants on monthly rents. Item No.2
property was purchased through a sale deed dated
16-3-1981 in the name of Muniyamma, the mother
of the plaintiff and also in the name of defendant
No.2. After the said purchase, BBMP effected
mutation and katha in the name of mother of
plaintiffs. Even the katha in respect of said
property is standing in the name of mother of
plaintiff. Item No.3 of the schedule property was
acquired by the mother of the plaintiff through
registered gift deed dated 22-9-1988 which was
executed by her mother in her favour.

During her life time, the mother of the plaintiff

had executed registered Will dated 28-5-1999 by
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O.S.No.420/2007

bequeathing item No.3 of the schedule property in

favour of defendant No.1 under registered Will by
putting a condition that defendant No.1 has no right
over item No.1 of the schedule property. She has
also disclosed in the said Will that defendant No.2
and plaintiff have no share in the property
bequeathed in the name of defendant No.1 under
the Will. This understanding was made known to
the plaintiff and also defendant No.2 herein.

The mother of the plaintiff Muniyamma died

on 28-3-2005 leaving behind parties as her legal
representatives. Hence, plaintiff and defendants are
in joint possession of schedule property. Defendants
are well settled, but plaintiff was mentally and
physically disabled. Now the said disability has been
cured by taking effective medical treatment and
now plaintiff is able to know about her rights over
the schedule properties only in the month of April
2006. After she came to know about her rights over

the schedule property to the extent of 1/3rd share,

she approached defendant No.1 and 2 and at that
time it was disclosed by defendant No.1 that a
registered Will was executed by their mother on
28-5-99 in his favour in respect of item No.3 of
schedule property over which he has exclusive right
 6
O.S.No.420/2007

over the said property. Hence he died giving any

share to the plaintiff in the said property. When
plaintiff approached defendant No.2, she has
disclosed about the document styled as “Release
-ya-Hakku Bidugade Pathra” dated 4-5-2005 with
respect to item No.1 of the schedule property and
on the basis of such document she claims exclusive
right title and interest and possession over item
No.1 of schedule property and she too has denied
the plaintiff’s right in the said property. As regards

2nd item of schedule property, defendants have

refused to effect partition and allot share to the
plaintiff, without there being any proper reason or
cause. Defendants, by colluding with themselves,
manipulated the frivolous document styled as
Release Deed dated 4-5-2005 in respect of item
No.1 of the schedule property, when the plaintiff
was mentally disordered and she was not in a
capacity to understand the consequences of
document dated 4-5-2005. This document dated
4-5-2005 is a got up document without free consent
of the plaintiff knowing fully well that she was under
treatment at NIMHANS, Bangalore, with respect to
her mental disorder. Hence, said document is bad
in law and not binding on the plaintiff to the extent
of her share in the said property. Plaintiff lastly
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O.S.No.420/2007

convened a panchayat to the defendants on

31-12-2006 by putforthing her demand for partition
and allotment of her legitimate share in item Nos.1
and 2 properties, for which defendants totally
refused to effect partition. Now defendants are
trying to create encumbrance over the said
properties with the sole intention to deprive the
plaintiff from claiming her legitimate share in the
said properties at item Nos.1 and 2. Even the
complaint lodged to the police by the plaintiff
against defendants went in vain. Cause of action for
the suit arose on 31-12-2006 when the defendants
refused to effect partition and allot share and also
on panchayat convened by her before elders of the
village and subsequently within the jurisdiction of
this Court. Hence, prayed for necessary reliefs.

4. Defendants appeared before Court.

Defendant No.1 filed written statement contending
by admitting that document styled as Release Deed
dated 4-5-2005 is only a nominal document and it
is not binding on the plaintiff. He has admitted
about execution of Will by his late mother in respect
of item No.3 property. He has supported the case of
plaintiff and he too has sought for his share in the
schedule properties.
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O.S.No.420/2007

5. Defendant No.2 has filed separate

written statement contending that suit is not
maintainable. The same has been filed in collusion
with defendant No.1 in order to harass this
defendant and extract money. It is contended that
there is no property available for partition as
alleged by the plaintiff. The suit is not properly
valued and proper court fee is not paid. Contentions
of the plaintiff that schedule properties which were
belonged to the ownership of their mother is
admitted. It is also admitted about execution of Will
by their late mother in favour of defendant No.1 in
respect of item No.3 property. It is also admitted
about the death of their mother Muniyamma on
22-9-1988. It is contended that plaintiff never
opted for marriage and she is a spinster. It is
contended by her that plaintiff and defendant No.1
by colluding together have filed this false suit,
which is not maintainable, since no property is
available for partition. It is denied that in the month
of April 2006 plaintiff came to know about her
rights. It is contended that plaintiff and defendant
No.1 have voluntarily executed release deed dated
4-5-2005 in favour of this defendant in respect of
item No.1 of the schedule property and as such
plaintiff cannot claim any right title or interest over
 9
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item No.1 of the schedule property. Since plaintiff

has remained unmarried, she is under the care and
custody of defendant No.1 and as such plaintiff and
defendant No.1 voluntarily executed release deed
and on the basis of it this defendant was put in
possession of item No.1 of the schedule property.
Then she obtained sale deed by approaching BDA
by spending huge amount and also she has
constructed a building by investing sum of Rs.1-lakh
in the said property. She has also got transferred
katha in her name by paying tax. With regard to
item No.3 of the property, she has admitted
execution of Will by her mother in favour of
defendant No.1. The conditions stipulated in the
Will executed by her mother are also admitted. It is
denied that document dated 4-5-2005 is concocted
and created for the purpose of this suit. It is also
denied that a panchayat was convened on
31-12-2006 by the plaintiff demanding partition. It
is contended that defendant No.1 has received the
jewels and cash belonging to their mother. It is
contended that item No.2 of the schedule property
is in possession and enjoyment of the plaintiff,
which has a high commercial potential and that the
relief of partition cannot be granted as no property
is available for partition and hence prayed for
 10
O.S.No.420/2007

dismissal of suit with exemplary costs.

6. On the basis of the pleadings of the

parties, following Issues came to be framed by this
Court:
1. Whether the plaintiff proves that she was
physically and mentally disabled till April
2006?

2. Whether the plaintiff proves that during

that period of her mental disability, the
2nd defendant got the signature of the
plaintiff on a document styled “Hakku
Bidugade Pathra” or “Release Deed”
dated 4-5-2005 in respect of item No.2
in her favour and as such the said
document is without her consent and
knowledge?

3. Whether the plaintiff proves that the said

Release deed is not binding on the
plaintiff to the extent of her share in
item No.1 of the suit schedule?

4. Whether the plaintiff proves that she is

entitled for a legitimate share in item
Nos.1 and 2 of suit property? If so, what
share?

5. Whether the 2nd defendant proves that

the plaintiff and 1st defendant have
voluntarily executed the release deed
dated 4-5-205 in favour of 2nd
defendant in respect of item No.1 of the
plaint schedule?
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O.S.No.420/2007

6. Whether the 2nd defendant proves that

she has obtained sale deed from BDA in
respect of item No.1 and got the khatha
changed and has been in possession and
enjoyment as owner thereof?

7. What Decree or Order?

7. When the case was posted for evidence,

on the plaintiff’s side plaintiff has led evidence by
filing her affidavit as evidence-in-chief and on the
plaintiff’s side as many as 32 documents came to be
marked as Exhibits. On the plaintiff’s side P.W.2 one
M.S.Sharadha has given evidence.

On the defendants’ side 2nd defendant has led

evidence as D.W.1 and defendant No.1 has led
evidence as D.W.2 and on the defendants’ side as
many as 22 documents came to be marked as
Exhibits.

8. Both sides have canvassed their

arguments.

9. On the basis of the arguments

canvassed by both side and the evidence available
on record, I record my findings on the above said
Issues as below, for the following:
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O.S.No.420/2007

Reasons

10. Issue Nos.1 to 6: I would like to take

up all these Issues together at a stretch for
discussion, since the Points involved under these
Issues are inter-connected to each other. The
burden of proving Issue Nos.1 to 4 is on the plaintiff
and burden of proving Issue Nos.5 and6 is on the

2nd defendant.

11. The relationship between the parties is

not in dispute. So also it is not in dispute that all
the three items of the properties were absolutely
held by late Muniyamma, the mother of the parties
to this suit. It is also not in dispute that in respect
of item No.3 of the schedule property, Will has been
executed by late Muniyamma in favour of defendant
No.1. It is also not in dispute that the said Will
impose certain conditions regarding the other
properties held by Muniyamma and also regarding
the right to claim over other properties by the
children of Muniyamma. Further it is not in dispute
that item No.2 property is still standing in the name
of mother of plaintiff.

The crux of dispute involved between the

parties is regarding title over item No.1 of the
 13
O.S.No.420/2007

schedule property. It is an admitted fact that item

No.1 property also belongs to the absolute
ownership of Muniyamma, the mother of the
parties. Further it is not in dispute that the mother
of the parties died on 28-3-205 leaving behind the
plaintiff and defendants as her surviving legal heirs.

With regard to item No.1 property, the plaintiff

has set up her case that she was mentally and
physically disabled and the said disability of the
plaintiff has now been cured due to effective
medical treatment and now she is able to know
about her rights over the suit schedule property
only in the month of April 2006.

In this regard, plaintiff herself has led

evidence as P.W.1 by filing her affidavit as
evidence-in-chief in which she has reiterated the
same facts as has been narrated in the plaint
regarding the claim made by her over schedule
properties and also regarding her alleged mental
ill-health during the time of execution of alleged
release deed, as set up by defendant No.2. While
giving evidence before Court, she has got marked
certified copy of the release deed as per Ex.P1,
katha certificate as per Ex.P2, tax paid receipt as
 14
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per Exs.P3 to P7, Encumbrance Certificate as per

Ex.P8. Then she has got marked the hospital
records of NIMHANS as per Exs.P9 to P17 and
medical bills and other medical records, as per
Exs.P18 to P22. Later she has got marked Exs.P23
to P32, which are also medical records pertaining to
her alleged mental ill-health.
Plaintiff has set up her case that when her
mental condition was not stable, by playing fraud
on her, alleged release deed, i.e., “Hakku Bidugade
Pathra” was obtained by defendant No.2 in her
favour. P.W.1 has been cross examined at length by
learned counsel for defendant No.2.

12. In the case on hand, defendant No.1 has

filed written statement and supported the case of
plaintiff regarding the claim made by her. In para
No.8 of his written statement he has set up his
defence that plaintiff is a chronic patient of mental
disorder and by taking advantage of the same,
some third parties were attempting to get the
properties transferred in their names from plaintiff

and at that time, defendants, apprehending that 3rd

parties may take undue advantage, they, as a
cautious measure, to see that properties are
protected in tact with the family of the defendants
 15
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and the plaintiff, “Hakku Bidugade Pathra” dated

4-5-2005, was made. It is contended in his written
statement that under the said state of affairs, the
release deed was obtained only for nominal sake
and it was got registered in the office of the

Sub-Registrar in the name of the 2nd defendant.

There was also an intention that in the event of
plaintiff was cured from her mental disease, then,
properties are to be transferred in the name of the
plaintiff. Then, it is pleaded by him that surprisingly,
defendant No.2, taking advantage of the said
document, now claiming exclusive right over the
said property, which is not sustainable in law and
the said release deed is only a nominal document,

out of which 2nd defendant will not get any right

and title over the said property, etc.

13. It is pertinent to note that plaintiff has

never taken such pleadings in this regard. On the
otherhand, simply she has stated that when her
mental condition was not good, she was taken to
Sub-Registrar’s office and obtained her signature
and created document at Ex.P1-release deed, which
is not a valid release deed and it is not binding on
her etc. As already pointed out by me above,
defendant No.1, who is sailing with the plaintiff, has
 16
O.S.No.420/2007

taken a different stand from the one that has been

taken by the plaintiff in her plaint regarding the
circumstances under which release deed came into
existence. It is pertinent to note that defendant
No.1 and plaintiff together have executed release
deed in favour of defendant No.2, by giving up their
shares in item No.1 of schedule property. In other
words, the contention of defendant No.1 is that he
is also entitled to have his share in item No.1 of
schedule property. But, he has not approached this
Court claiming any share in item No.1 property. In
the written statement he has pleaded so. He has
not paid court fee to make such claim over the suit
schedule properties. Simply he has pleaded that in
the event decree is going to be passed, he may be
given with his due share in the suit schedule
properties. So, from the stand set up by defendant
No.1 in the written statement, clearly gives an
indication that plaintiff and defendant No.1 are
sailing together against defendant No.2, who has
obtained release deed in her favour from plaintiff
and defendant No.1, as per Ex.P1. It is not in
dispute that Ex.P1 is a registered document. It is
also not disputed either by defendant No.1 or
plaintiff about execution of such document. The
plaintiff’s contention is that when her mental
 17
O.S.No.420/2007

condition was not stable, she was taken to the

Sub-Registrar’s office and her signature was
obtained without revealing the intention of
defendant No.2 regarding item No.1 property.

In this regard the plea taken by plaintiff in the

plaint is that at the time of her putting signature to
Ex.P1, her mental condition was not good. It is an
admitted fact that mother of the parties died on
28-3-2005. The document at Ex.P1-the release
deed, came to be executed on 4-5-2005, which is
just about one month after the death of the mother
of the parties. In the plaint plaintiff has never
pleaded as to why she suffered mental disorder. In
the evidence also she has not disclosed about the
cause for he mental disorder. Only in her evidence,
she has attempted to say that due to death of her
mother suddenly, she was put to shock and also
attempted to say that at that time her child was
kidnapped by one Muniyellappa, her estranged
husband and as such, she suffered mental shock.
But, all these allegations are not pleaded in the
plaint by the plaintiff for the reasons best known to
her.

Defendant No.2 has set up her case that

plaintiff is a spinster, but plaintiff, eventhough not
 18
O.S.No.420/2007

pleaded in the plaint anything about her marriage

with one Muniyellappa, in the writ petition filed
before the Hon'ble High Court in W.P.No.19748
/2006 (GM – Police), it is seen that she had filed
writ petition seeking writ of mandamus against the
State of Karnataka represented by its Secretary to
Government, Commissioner of Police, Inspector of
Police, Rajajinagar and Muniyellappa. It is no doubt
true that the question of marriage of plaintiff is not
involved in this suit. But plaintiff, if really had
married with Muniyellappa, she would have stated
in the cause title of the plaint to show that she is
the wife of Muniyellappa. On the otherhand, in the
cause title of the plaint it is mentioned as “D/o. late
Venkatappa Naidu”. Eventhough she has set up her
defence in her evidence that her estranged husband
has kidnapped her child and as such she suffered
mental shock, it is not shown to the Court as to
what happened to the said child and what happened
to the case thereafterwards. Simply she has filed
medical report at Exs.P9 to P32, which all pertain to
her taking treatment at NIMHANS. None of the
medical records produced by her reveal that she
was admitted as indoor patient in NIMHANS. On
the otherhand, all those documents clearly reveal
that she has been treated as out-patient in the said
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O.S.No.420/2007

hospital. In this connection, in order to show that

she was not in a position to speak to anybody or
give statement to anybody, she has not examined
the Doctor concerned, who has treated her. Above
all, it is pertinent to note that all those medical
documents produced by the plaintiff pertain to the
period after July 2005, whereas, the release deed at
Ex.P1 is dated 4-5-2005. Therefore, whatever the
medical records produced by the plaintiff to prove
her mental illness, are all subsequent to the
execution of release deed at Ex.P1 and not pertain
to the period in which the release deed came to be
executed before the Sub-Registrar.

In this regard, the defendant No.1, who is

sailing with plaintiff, has taken all together a
different stand from that of the stand taken by the
plaintiff. Plaintiff has never whispered anything that
due to her mental condition, the document called as
‘release deed’ was obtained only nominally, so as to
protect the property from third persons, whereas,
defendant No.1 has pleaded so in the written
statement. So, this itself is sufficient to hold that
both plaintiff and defendant No.1 have created false
story of alleged mental illness. Even accepting for a
while that plaintiff was suffering from mental shock,
 20
O.S.No.420/2007

it cannot be assumed or presumed that she was not

in a position to do anything due to her mental
shock, because, she has taken treatment as
out-patient in the said Hospital, as could be seen
from the very medical records produced by her.

14. P.W.2 has given evidence, who is one

Sharada, who is stated to be the close relative of
plaintiff and defendants. She has come before
Court to depose about the mental and physical
disablement of the plaintiff in the year 2005. As
already discussed above, the contention of the
plaintiff regarding her alleged ill-health is not
proved with cogent and acceptable evidence and
her own medical records reveal that she was not
admitted as in-door patient in the hospital at any
time and on the otherhand, she has taken
treatment as out-patient. Above all, those medical
records pertain to the month of July 2005 onwards
and not earlier to that. But, the document at Ex.P1
came into existence in the month of May 2005,
which is just about one month after the death of the
mother of the parties. So, under these
circumstances, I answer Issue Nos.1 to 3 in the
Negative.
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15. As far as the claim of the plaintiff over

item No.2 of the schedule property is concerned,
admittedly, it is still standing in the name of the
mother of the parties. From the written statement
of defendant No.2 also, the same could be made
out. Defendant No.2, who has given evidence before
Court, has spoken to about this aspect. Defendant
No.2 has led evidence by filing her affidavit as
evidence-in-chief, in which she has reiterated the
same facts as has been narrated in the written
statement filed by her. Plaintiff has also never
disputed that item No.2 property is still standing in
the name of her mother.

16. As far as the Will executed by the

mother of the parties in favour of defendant No.1 in
respect of item No.3 property is concerned, there
isn o dispute at all. The plaintiff has also pleaded so
in the plaint. She has also pleaded about certain
conditions stipulated in the Will, which came to be
marked as Ex.D1. As per the recitals of Ex.D1, it is
mentioned that defendant No.1 shall not make any
claim over item Nos.1 and 2 properties. In the said
Will it is mentioned about the retention of item No.2
property in her name. Therefore, item No.2
property is still standing in the name of the mother
 22
O.S.No.420/2007

of the parties, in which parties are entitled to have

their respective shares. But, quite significantly, in
the pleadings of defendants No.1 and 2, they have
pleaded that they do not have any claim over item
No.2 property, by stating that it is given to the
plaintiff. As already pointed out by me above, the
mother of the parties died by bequeathing only item
No.3 property in favour of defendant No.1 and item
Nos.1 and 2 properties were belonged to the said
Muniyamma. She died by leaving behind those two
properties. But, after her death, plaintiff and
defendant No.1 have executed release deed in
respect of their shares in item No. 1 property in
favour of defendant No.2, which has been proved by
defendant No.2, with cogent and acceptable
evidence. Hence, Issue No.4 is partly answered in
the Affirmative and partly answered in the negative
and answered Issue No.5 in the Affirmative.

17. It is an admitted fact that BDA has

executed sale deed in respect of item No.1 property
in the name of defendant No.2 after the lease
period was over. Accordingly, she got transferred
the same. By virtue of her acquisition of title over
item No.1 property under release deed executed by
plaintiff and defendant No.1, she has become the
 23
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owner of item No.1 property and as such, she has

obtained sale deed from the BDA. Hence, I answer
Issue No.6 in the Affirmative.

18. Issue No.7: In view of my findings

on the aforesaid Issues and reasons assigned
thereunder, I proceed to pass the following:

ORDER

Suit of the plaintiff is hereby

dismissed.

No order as to costs.

(Dictated to the Judgment Writer, computerised

print-out taken thereof is corrected, signed and then
pronounced by me in Open Court on this the 19TH day
of March 2013.)

(G.K.Somanath)
XXII Addl. City Civil & Sessions Judge,
*sb Bangalore.
 24
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ANNEXURE

List of witnesses examined for plaintiff:

P.W.1 Bhagyalakshmi @ Dhanalakshmi

P.W.2 Smt.M.S.Sharadha

List of witnesses examined for defendants:

D.W.1 Smt.V.Ashwathamma @ Annapurnamma

D.W.2 B.V.Shankar Naidu

List of documents exhibited for plaintiff:

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O.S.No.420/2007

Ex.P1 – c.c. of the release deed dated 4.5.2005

Ex.P2 - katha certificate
Ex.P3 to P7 - tax paid receipts
Ex.P8 - encumbrance certificate
Ex.P9 - certificate issued by NIMHANS
Ex.P10 to P17 –Medical prescriptions
Exs.P18 to P22 – Medial bills
Exs.P23 to P32 – Hospital records.
Ex.P29(A) – signature of P.W.1

List of documents marked for defendants:

Ex.D1 – Will dated 28.5.99.

Ex.D1(a) to (e) – signatures
Ex.D2 - c.c. of W.P.No.10849/06
Ex.D3 – c.c.of release deed dtd. 4-5-2005
Ex.D4 c.c. of transfer deed dt. 8-5-06
Ex.D5 – original sale deed dt.15-5-06
Ex.D6 – katha certificate
Ex.D7 – khata extract
Ex.D8 to D16 – tax paid receipts
Ex.D17 -c.c. of W.P.No.32407/04
 26
O.S.No.420/2007

Ex.D18 - Uttarapathra issued by BBMP

Exs.D19 & D20 - tax paid receipts
Ex.D21 - katha Extract
Ex.D22 - katha certificate.

(G.K.Somanath)
XXII Addl. City Civil & Sessions Judge,
Bangalore.
 27
O.S.No.420/2007

19-3-2013

Judgment passed and pronounced in Open Court.

Operative portion thereof reads as under:

Suit of the plaintiff is hereby

dismissed.

No order as to costs.

XXII A.C.C. & S.J., Bangalore.

 CIVIL PROCEDURE CODE AND LIMITATION ACT

CIA III

CASE ANALYSIS

SMT. BHAGYALAKSHMI V. SRI. SHANKAR NAIDU & ANR

(O.S.NO.420/2007)

SUBMITTED TO: SUBMITTED BY:

Dr Gopi Ranganath, Suhaschandra B S
Professor, School of Law, 1950234, 8 BA LLB B
Christ University, School of Law,
Bangalore. Christ University,
Bangalore

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 IN THE COURT OF XXII ADDL. CITY CIVIL &
SESSIONS JUDGE
BANGALORE (C.C.H.No.7)
Dated: This the 19th Day of March 2013

(O.S.NO.420/2007)

BETWEEN:

Smt.Bhagyalakshmi @ Dhanalakshmi,
D/o. late Venkatappa Naidu,
Aged about 38 years,
R/at No.613, Dr.Rajkumar Road,
Prakash Nagar, Bangalore-21. …. PLAINTIFF

AND/OR

1. Sri.B.V.Shankar Naidu,
S/o. late Venkatappa Naidu,
Aged about 48 years,
R/at No.613, Dr.Rajkumar Road,
Prakash Nagar, Bangalore-21.

2. Smt.V.Aswathamma @ Annapurnamma,
D/o. late Venkatappa Naidu,
Aged about 50 years,
R/at No.895, 7th Main Road,
3rd Cross Road, Prakash Nagar, Bangalore-21. … DEFENDANTS

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 SMT. BHAGYALAKSHMI V. SRI. SHANKAR NAIDU & ANR
(O.S.NO.420/2007)

Nature of suit: Declaration and partition & Separate possession and mesne profits.
Sections associated: Legal representative, partition, execution of the will, Decree and order,

I. FACTS
1. The Property in dispute is the absolute property of Smt. Muniyamma, mother of plaintiffs
and defendants. The Schedule property comprises of three items, Item No. 1, Item No. 2,
and Item No.3 respectively. The dispute is with respect to Item No. 1 and Item No. 2.
Muniyamma bequeathed Item No. 3 in favour of Defendant No. 1 through a registered
WILL. The Plaintiff suffers from mental ill health and has released her share in Item No. 1
in favour of Defendant No 2. Therefore the present Plaint has been filed by the Plaintiff
challenging the validity of the Release Deed and claiming share in Item No. 2 which stands
in the name of the mother Muniyamma.
2. Muniyamma died on 28-3-2005. The Plaintiff and Defendants are in joint possession of the
scheduled property. The Plaintiff, after treatment in April 2006, approached Defendants
no.1 and 2 after knowledge of her rights over 1/3rd share over the scheduled property.
Defendant No. 1 stated that according to their mother’s will, he has exclusive rights over
item no. 3 of the scheduled property. The Plaintiff’s mother died without giving any share
to the Plaintiff in the said property. Defendant no. 2 disclosed a document styled as
“Release-ya-hakku Bidugade Pathra” with respect to item no.1 and claimed the exclusive
right title and interest and possession over item no. 1. Both Defendants no. 1 and 2 had
denied the Plaintiff right in scheduled property.
3. With respect to the 2nd item of the scheduled property, the Defendants have refused to
effect partition and allot share to the Plaintiff, and the Defendants colluding within
themselves, manipulated the document styled as release deed dated 4-5-2005 in respect of
item no.1 while the Plaintiff was getting treated at NIMHANS and said that the document
is bad in law and not binding to the extent of the Plaintiff’s share in the said property. The
cause of action arose on 31-12-2006 when the Plaintiff convened a panchayat to the
Defendants and subsequently within the jurisdiction of this court, and the Defendants
refused to effect the partition.
4. Defendant no. 1 filed a written statement in which he stated that the document styled as a
Release deed is only a nominal document and is not binding on the Plaintiff. He then

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 supported the case of the Plaintiff as he sought for his share in the scheduled property as
well.
5. Defendant no. 2 had filed a separate written statement contending that the suit is not
maintainable and said that the same had been filed to harass the Defendant and extract
money in collusion with Defendant no.1.
6. The Defendant contended that:
a. There is no property available for partition as alleged by the Plaintiff.
b. The suit is not properly valued, and the proper court fee is not paid.
c. The execution of the will by their late mother in favour of Defendant no. 1 in respect
of item no.3.
d. Denied that Plaintiff came to the knowledge of her rights in April 2006
e. The Plaintiff and Defendant no. 1 have voluntarily executed a release deed dated 4-
5-2005 in favour of the Defendant in respect of item no. 1.
f. The Plaintiff cannot claim any right title or interest over item no. 1 of scheduled
property, and the Plaintiff is under the care of Defendant no. 1 as she is unmarried,
and the release deed was voluntarily executed by both Defendant no. 1 and the
Plaintiff.
g. Subsequently, based on the Release Deed, Defendant no. 2 obtained the Sale Deed
from the BDA (Bangalore Development Authority) and constructed a building on
Item no.1. Further, she had the Khata transferred in her name for the said property.
h. The panchayat was not convened on 31-12-2006 by the Plaintiff demanding
partition.
i. Defendant no.1, along with item no.3(by way of WILL), has received cash and jewels
belonging to their mother.
j. The Plaintiff is in possession and enjoyment of item no. 2, which has high commercial
potential.
k. No property is available for partition.
7. The Defendant conclusively prayed for the dismissal of the suit with exemplary costs.

II. ISSUES

The following issues were framed by the court after the pleadings:

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 1. Whether the Plaintiff proves that she was physically and mentally disabled till April
2006?
2. Whether the Plaintiff proves that during that period of her mental disability, the 2nd
Defendant got the signature of the Plaintiff on a document styled “Hakku Bidugade
Pathra” or “Release Deed” dated 4-5-2005 in respect of item No.2 in her favour and as
such the said document is without her consent and knowledge?
3. Whether the Plaintiff proves that the said Release deed is not binding on the Plaintiff to
the extent of her share in item No.1 of the suit schedule?
4. Whether the Plaintiff proves that she is entitled to a legitimate share in items Nos.1 and
2 of the suit property? If so, what share?
5. Whether the 2nd Defendant proves that the Plaintiff and 1st Defendant have voluntarily
executed the release deed dated 4-5-2005 in favour of the 2nd Defendant in respect of
item No.1 of the plaint schedule?
6. Whether the 2nd Defendant proves that she has obtained the sale deed from BDA in
respect of item No.1 and got the khata changed, and has been in possession and
enjoyment as owner thereof?
7. What Decree or Order?

III. LAW

The legal provisions that are applicable in the case are:

Section 10 of Indian Contract Act,1872 -What agreements are contracts.

“All agreements are contracts if they are made by the free consent of parties competent to
contract, for a lawful consideration and with a lawful object, and are not hereby expressly
declared to be void.”

Section 11 of the Indian Contract Act, 1872 - Who are competent to contract.
“Every person is competent to contract who is of the age of majority according to the law to
which he is subject, and who is of sound mind and is not disqualified from contracting by any
law to which he is subject.”

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The plaintiff in this case had claimed mental-ill health and the same condition would make the
person an incompetent party and questions the validity of the plaintiff's consent and actions
regarding the Release deed.
Section 34 of the Specific Relief Act,1963 - Discretion of court as to declaration of status or
right.
“Any person entitled to any legal character, or to any right as to any property, may institute a
suit against any person denying, or interested to deny, his title to such character or right, and
the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff
need not in such suit ask for any further relief: Provided that no court shall make any such
declaration where the plaintiff, being able to seek further relief than a mere declaration of title,
omits to do so.”

The plaintiff in this case had prayed for the declaration of title over the property that Late
Muniyamma had left for her children i.e parties to this suit, the plaintiffs and defendants. The
plaintiff had asked for declaration of title over Item No.2 of the scheduled property as she had
been denied share in the same.

Section 54 of the Civil Procedure Code, 1908 - Partition of estate or separation of share.
“Where the decree is for the partition of an undivided estate assessed to the payment of revenue
to the Government, or for the separate possession of a share of such an estate, the partition of
the estate or the separation of the share shall be made by the Collector or any gazetted
subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any)
for the time being in force relating to the partition, or the separate possession of shares, of
such estates.”

The plaintiff had filed for a partition suit as the plaintiffs efforts to amicably acquire the alleged
share over Item No. 2 was denied by both the Defendants and had exhausted the option of
mutual consent through a partition deed, family settlement and even convening a panchayat.
So, the plaintiff had filed a suit for partition over Item No.2.

Section 2(2) of the Civil Procedure Code, 1908 – Decree.

“A decree is the formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be preliminary or final.”

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Section 2(14) of the Civil Procedure Code, 1908 - Order
“Order is the formal expression of any decision of a civil court which is not a decree.”
The court in this case had heard the parties and drafted 7 main issues of which the last issue is
with respect to whether a decree or an order needs to be passed regarding the suit after hearing
Issues No. 1 to No. 6. The court had passed an order dismissing the suit filed by the plaintiff.

Section 24 of The Karnataka Court Fees and Suits Valuation Act, 1958 - Suits for
declaration.
“In a suit for a declaratory decree or order, whether with or without consequential relief, not
falling under Section 25 (Adoption suit)
(a) Where the prayer is for a declaration and for possession of the property to which the
declaration relates, fee shall be computed on the market value of the property or on [rupees
one thousand] whichever is higher;
(b) Where the prayer is for a declaration and for consequential injunction and the relief sought
is with reference to any immovable property, fee shall be computed on one-half of the market
value of the property or on [rupees one thousand] whichever is higher;
(d) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall
be computed on the amount at which the relief sought is valued in the plaint or on[rupees one
thousand] whichever is higher.”

Defendant no. 2, in this case, contended that the suit is not properly valued and the court fees
have not been paid. The court, after hearing both parties, held that Defendant No.1 has never
approached the Court to claim a share in Item No.1 until the present suit was filed by Plaintiff.
Defendant No. 1 maliciously claims share in Item No.1 through Plaintiff by evading Court fees
under section 24 of The Karnataka Court Fees and Suits Valuation Act, 1958 to deceive
Defendant No. 2. Based on the reasons stated above, the Court rejected all the contentions of
Defendant No. 1.

IV. ANALYSIS

1. The Court, upon hearing the parties, has analysed the issues in a two-fold manner. Issue
No.1-6 follow the contentions of the parties, and the Judge has reserved Issue No. 7 to

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 either pass an Order or Decree. Further, the Judge is of the opinion that the burden of proof
for Issues No. 1 to 4 lies on Plaintiff while Issues No. 4-6 lies on Defendant No. 2.
2. The court has recorded that all the admitted facts are not in dispute, such as the relationship
between the parties; Late Muniyamma (Mother of the parties) to be the owner of the three
Items; Execution of WILL in favour of Defendant No.1 with respect to Item no.3; Item
No.2 is still in the name of Muniyamma.
3. The dispute is over the title of Item No. 1, which is also still in the name of Muniyamma.
Owing to the mental ill-health, the Plaintiff was unaware of her rights with respect to Item
No.1, and Defendant No. 2 had fraudulently obtained a Release Deed (Ex. P1) from
Plaintiff in favour of Defendant No.2.
4. Defendant No. 1 claims that considering the mental health of Plaintiff, Defendant No.1, in
goodwill, has obtained the Release Deed (Ex. P1) from Plaintiff to secure the property from
fraudulent third-party claims. Further, Defendant No. 1 himself executed a Release Deed
in favour of Defendant No. 2 to secure the property with the condition that Defendant No.
2 shall give up her rights over Item No.1 (obtained by way of Release Deeds) if Plaintiff
recovered from her mental ill-health. Defendant No. 2, having rights over Item No. 2, has
been in full enjoyment of the same.
5. The Court has observed different contentions made by Plaintiff and Defendant No. 1 over
Item No. 1. The Plaintiff has been contending about the validity of the Release Deed as she
was mentally unstable when she signed the same, while Defendant No. 1, who had lawfully
executed the Release Deed is claiming a share in Item No. 1 contrary to the Release Deed.
6. It is pertinent to note that Defendant No.1 has never approached the Court to claim a share
in Item No.1 until the present suit was filed by Plaintiff. Defendant No. 1 maliciously
claims share in Item No.1 through the Plaintff by evading Court fees to deceive Defendant
No. 2. Based on the reasons stated above, the Court rejected all the contentions of
Defendant No. 1.
7. The Plaintiff, by way of examination of herself as P.W. 1 claimed that she suffered mental
disorder post the death of her mother, Muniyamma. It is pertinent to note that, when the
Plaintiff was Cross-Examined, she has misled the Court by stating irrelevant facts about
her estranged husband Muniyelappa kidnapping her son; a complaint that she filed
subsequent to the kidnap; and the Writ Petition she filed seeking writ of mandamus against
the State of Karnataka represented by its Secretary to Government, Commissioner of
Police, Inspector of Police, Rajajinagar. Based on the Plaintiff’s cause title where she has
represented herself as ‘D/o. Late Venkatappa Naidu’ rather than ‘W/o Muniyelappa’ shows

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 her intention to not disclose her marriage. Further the Plaintiff fails to give details about
her child and what happened in the W.P. thereafter.
8. The Plaintiff claimed to be mentally ill at the time of execution of the Release Deed (Ex.
P1). Upon examination of the Medical Receipts produced by the Plaintiff it is evident that
she was never admitted in the hospital (NIMHANS) and that all the Receipts were dated
from July 2005, while the Release Deed was executed on 4.5.2005. Further the Plaintiff
failed to examine the Doctor who treated her as a Prosecution Witness. Based on the above
observations, the court rejected the Plaintiff’s contention that she was mentally unstable
when she signed the Release Deed, as all the medical records submitted by the Plaintiff are
subsequent to the execution of the Release Deed.
9. The aforementioned reasons are sufficient to hold that both Plaintiff and Defendant No.1
have created false story of alleged mental illness. Further the Court has diregarded P.W. 2,
Sharada who is a close relative of the parties who corroborated the mental ill health of the
Plaintiff based on the medical records which were evidently subsequent to the execution of
the Release Deed.
10. The court therefore held Issue No. 1-3 in the negative.
11. While hearing the second claim made by the Plaintiff in Item No. 2, the Court based on all
the admitted facts about Muniyamma still standing as the owner of Item No. 2 has answered
Issue No. 4 in the affirmative stating that the Plaintiff has undivided share in Item No. 2 of
the schedule property.
12. The WILL executed in favour of Defendant No. 1 had certain conditions, which denied the
Defendant No. 1’s right to claim share in Item No. 1 and 2. Further the WILL talks about
Item No. 2 being retained in the name of Muniyamma. Therefore, all the parties have an
undivided share in Item No. 2 as the property still stands in the name of Muniyamma.
13. Based on the recitals of the WILL and the aforementioned Release Deeds the court
concludes that Item No. 3 is lawfully bequeathed in Defendant No.1 by way of WILL; and
Defendant No. 2 holds a lawful title over Item No.1 by way of Release Deeds. The court
therefore held issue 5 in the affirmative.
14. Upon perusal of the documents such as Khata Certificate, Tax paid receipts and
Encumbrance Certificates which are marked as Defendant Exhibits, the Court has
concluded that BDA has executed a Sale Deed in respect of Item No. 1 in the name of
Defendant No. 2. Thus, answering Issue No. 6 in the affirmative.

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15. The Court, after hearing the submissions of both the Plaintiff and the Defendants, and
examining the evidence, passed an Order dismissing the suit of the Plaintiff.

V. CONCLUSION

The Court, in this case, after hearing the contentions of both the parties along with the evidence
submitted, dismissed the case of the Plaintiff as the contention made by the Plaintiff about
being of unsound mind whilst signing the Release deed had been discovered to be false as the
date administered in the documents submitted regarding the treatment from NIMHANS and it
had been proved that the suit had also been a pathway for the Defendant No. 1 to claim a share
in Item No.1 maliciously. The court had held Issue No. 1 to 3 not in favour of the Plaintiff. The
court, in response to Issue No. 4, held that Plaintiff has an undivided share in Item No. 2 of the
scheduled property. Defendant No. 2 holds lawful title over Item No.1 as under the Release
Deeds, so the court had clarified the rights under Issue No. 5. With respect to Issue No.6, the
court held that Defendant No. 2 does indeed have a Sale Deed over Item No. 1. Finally, the
Court passed an order dismissing the suit filed by the Plaintiff.

ANNEXURE

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 Witness No. List of witnesses examined for Plaintiff:
P.W. 1 Bhagyalakshmi @ Dhanalakshmi
P.W. 2 Smt.M.S.Sharadha

Witness No. List of witnesses examined for Defendant:

D.W. 1 Smt.V.Ashwathamma @ Annapurnamma
D.W. 2 B.V.Shankar Naidu

Document No. List of documents exhibited for Plaintiff:

Ex. P1 c.c. of the release deed dated 4.5.2005
Ex. P2 khata certificate
Exs.P3 – P7 tax paid receipts
Ex. P8 encumbrance certificate
Ex. P9 certificate issued by NIMHANS
Exs. P10 – P17 Medical prescriptions
Exs. P18 to P22 Medical bills
Exs.P23 to P32 Hospital records
Ex. P29(A) signature of P.W.1

Document No. List of documents exhibited for Defendant:

Ex. D1 Will dated 28.5.99
Ex.D1(a) to (e) signatures
Ex. D2 c.c. of W.P.No.10849/06
Ex. D3 c.c. of release deed dated. 4-5-2005
Ex. D4 c.c. of transfer deed dt. 8-5-06
Ex. D5 original sale deed dt.15-5-06
Ex. D6 khata certificate
Ex. D7 khata extract
Ex.D8 to D16 tax paid receipts
Ex.D17 c.c. of W.P.No.32407/04

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