BEFORE THE XCth CITY CIVIL COURT, BENGALURU

O. S. No. 1358/2005

BETWEEN

Parvathi, W/o Chowdayya, aged 19 years, 27th Main,

Sector 5, HSR Layout, B’luru -102 – Plaintiff

AND

1. Padmavathi W/o Late Srinivas aged about 65, 4/45,Bhavani Layout, BH Post, Blore -29
2. Sukumari D/o Padmavathi, aged 28 years, residing ---------------do-----------------------------------
Defendants
3. Uma, D/o Padmavathi, aged 25 years, residing ---------------do-------------------
4. Usha, D/o Padmavathi, aged 22 years, residing ---------------do-------------------
5. Shree Choudeshwari Temple Trust, Bhavanthi Street, Banerghatta Rd, Blore

------Defendants 1 to 5.

Plaint presented u/s 26 r/w O VII Rule 1, CPC, 1908:

1. The address of P for purpose of service of notices and processes is as above.

2. P1 is the daughter of D1 and D2 to D4 are sisters of P1.

3. P & D1 to D4 are in indisputed possession and enjoyment of 40 cents of property comprised in Sy

No 2116, Bommanahalli Village obtained by them jointly in name of P and D1 to D4 by way of partition
deed No 2284 of 1990 allotted as Schedule Part D to the partition deed.

4. Right from the aforesaid partition, the P and D1 – D4 are in joint possession and enjoyment of the
40 cents property comprised in Sy No 2116, Dharmaram Village, morefully described in the Schedule.

5. The P and Ds are co-owners with respect to plaint schedule property, each entitled to 1/5th share
over the same.

6. The D1 who was entitled to 1/5th share, surrendered cents of property from her share to a state
sponsored “Anganawadi” and the remaining property is in the undisputed possession and enjoyment
of the remaining portion of the plaint schedule property.

7. D5 is adjoining neighbour who has no right whatsoever over the plaint schedule property.

8. P1 is married to Chowdayya and resides currently at HSR Layout.

9. In the month of Sept 2005, P along with her husband visited the schedule property, and to her
surprise saw that the D5 had constructed a compound wall encompassing the schedule property and
when she made enquiries with the security posted there, he gave vague replies but asserted that the
property belonged to a temple trust.

10. P also made enquiries with D 1 to D4, but they evaded replies but told that the said property was
surrendered to the temple trust at their behest.

11. It is submitted that P1 who has 1/5th share over plaint schedule property has no right whatsoever
to surrender the paint schedule property to D5.
12. Now, it is reliably learnt that D1 to D4, without the knowledge or consent of P1 executed some
documents in favour of D5 in the year 2002 with respect to the plaint property including P1’s share.

13. P1 was born on 5/5/1986 and attained majority only on 5/5/2004 and at the time of the execution
of documents in favour of D5 by D1 to D4, P1 was a minor.

14. D1 has no right to execute any documents with respect to the share of P1 in her minority and the
documents executed by D1 to D4 with respect to P1’s share are not for necessity nor benefit of P1 in
whatsoever manner.

15. Ds have not obtained permission from any court so as to sell the property of P1 in her minority
under Hindu Minority and Guardianship Act and therefore the documents executed by D1 to D4 in
favour of nD5 are void. These will not in any way extinguish the right of P1 over her share nor will D5
get any right over her share and P1 ignores the void document executed in favour of D5.

16. P1 immediately after knowing about the above unauthorised act on 18/9/2005 made a request to
D1 to D4 for effecting a plaint schedule property but they were not agreeing to do the same.

17. P1 also reliably learnt that as a defensive measure, D1 to D4, in order to avoid giving P1 her lawful
share, fraudulently and collusively got filed a suit by the D5 against D1 and P1 came to know of the
said suit only on the date she revealed the facts to D1 to D4 who have evinced no interest in effecting
the partition of scheduled property by metes and bounds.

18. As the Ds are amenable for the just demand of P1 to effect a partition, this suit is necessitated and
hence filed accordingly.

19. The cause of action of this suit had arisen at Bommanahalli village where the plaint schedule
property is situated on 18/09/2005 when P1 made the request to effect a partition and denied and on
10/11/2005 when P1 came to understand that the D1 to D4 colluded with D5 on getting them file a
collusive suit so as to avoid this suit and also continuously thereafter.

20. For the purpose of valuation the suit is valued for P1’s 1/5th share as rupees eighty lakhs and a
court fee of Rs 200/- as per section 35 of the Karnataka court Fees and Suits Valuation Act, 1958 and
check slip annexed herewith.

21. Hence it is humbly prayed that this Hon’ble court be pleased to summon the D1 to D4 and grant
the following:

(i) Pass a decree allowing partition of the 1/5th share of P1 by metes and bounds and allot separate
possession

(ii) Allow costs of P1 from the contesting Ds

(iii) Such other reliefs which are appropriate and incidental to the suit which the court deems fit and
proper.

Dated this 27th day of November, 2005

VERIFICATION

I, Parvathi w/oChowdayya, hereby declare that what is stated in foregoing paragraphs of paliny is
true and correct to the best of my knowledge, belief and information.

PLAINT SCHEDUE
 (attached)

DOCUMENTS ATTACHED

(Partition Deed attached)

AFFIDAVIT (enclosed)

BEFORE THE XCth CITY CIVIL COURT, BENGALURU

O. S. No. 1358/2005

BETWEEN

Parvathi, W/o Chowdayya, aged 19 years, 27th Main,

Sector 5, HSR Layout, B’luru -102 – Plaintiff

AND

1. Padmavathi W/o Late Srinivas aged about 65, 4/45,Bhavani Layout, BH Post, Blore -29
2. Sukumari D/o Padmavathi, aged 28 years, residing ---------------do-----------------------------------
Defendants
3. Uma, D/o Padmavathi, aged 25 years, residing ---------------do-------------------
4. Usha, D/o Padmavathi, aged 22 years, residing ---------------do-------------------
5. Shree Choudeshwari Temple Trust, Bhavanthi Street, Banerghatta Rd, Blore

W/s presented O VIII, Rule 1 of CPC, 1908:

1. Address of D5 for summons as given above.

2. The suit is not maintainable either in law or facts.
3. All the averments and allegations in the plaint except those which are specifically admitted or
otherwise dealt with hereunder are false and denied.
4. The plaint schedule property is wrong and denied. P1 has no title or possession over the
schedule property. She has no right to institute this suit as the plaint schedule property is not
subject to partition.
5. The averments in para (1) of the plaint are admitted. It is to be noted that the suit is a collusive
one caused to be instituted at the instigation of D1 to D4 andP1 since D5 refused to yield to
the unreasonable demand made by P1 and D1 to D4.
6. The averments in para(2) of the plaint are not correct and strongly denied. Neither the P1 nor
D1 to D4 have any title, possession or enjoyment over the 40 cents of property in Sy. No. 2116,
Bommanahalli. It is wrong to say that they got the property under partition deed No 2284 of
1990 and they are incompetent to enter into partition deed and said deed is a sham.
7. It is submitted that certain properties are set apart for diety Choudeshwari and they were
managed by the only living member of Kumti family. He was holding the property for the idol
and attending to the poojas of Sree Choudeshwari Amma and managing the temple. Being
last survivor of the family he executed a dhanapatra(gift deed) 16668/1908 in favour of diety.
The said property includes 2 acres and 53 cents inclusive of plaint schedule property. The
temple acquired other properties out of its own funds. All these properties have been
possessed and enjoyed by D5 trust. Thus it can be seen that the alleged claim of title by P1
 and D1 to D4 on the basis of partition deed No 2284 of 1990 is not sustainable nor
maintainable.
8. D1 to D4 along with P1 put some claim over plaint schedule property.The gift deed was not
available with office bearers of D5 trust. So to avoid litigation , D5 trust took a sale deed
1666/2002 in respect f the alleged rights of P1 and D1 to D4. So P1 and D1 to D4 have no right
, title or possession over any partition of plaint schedule property.
9. The averments in para(3) of the plaint are also incorrect and denied.
10. The averment is para(2) is admitted.
11. The averments in paras (4) and (5) are not true on facts and are hereby denied.
12. The averments in para (6) are not correct and hereby denied.
13. It is to be noted that P1 and D1 to D4 executed a sale deed no. 1666/2002 in favour of D5. The
said sale deed takes in the plaint schedule property. The first defendant in this suit executed
the sale deed on behalf of P1 and D1 was the guardian of P1. The share of P1 i.e., Rs eight
lakhs as sale consideration was deposited under Kalpavraksha Scheme in SIB, Christ University
Branch, Blore. The said amount has been withdrawn by P1 and D1 to D4. Since P1 also enjoyed
benefit of the sale deed no. 1666/2002 she is estopped from challenging the said sale deed
executed in favour of D5 trust.
14. The averment in para(7) that D5 is not the owner is not true and hereby denied. D5 is not only
the owner of adjacent property but also owner in possession and enjoyment of plaint schedule
property with clear title. Contrary averments are denied.
15. The entire schedule property has been in exclusive possession of D5 trust. The mutation in
respect of plaint schedule property has been affected in favour of D5. It has been paying tax.
D1 attempted to construct encroaching the plaint schedule property. Consequently D5 had ti
file suit O.S. No. 1559/2005 before XLth City Civil Court, Bluru against D1. She has undertaken
in the suit that no construction will be undertaken in the suit property. P1 had no title or
possession over nay portion of schedule property.
16. It is not known when didP1 get married. So the averments in para (8) are denied.
17. Averments in para(9) are not correct and hence denied.
18. The allegations in paras (10 & (11) of plaint are not correct and denied. P1 is stopped from
challenging the validity of the sale deed as the amount deposited in SIB is withdrawn.
19. Averments in para (12) are not correct and hereby denied. The sae deed was executed with
the knowledge of P1 and her share of the sale consideration was deposited in the bank and
has since been withdrawn.
20. Averments in para(13) are incomplete and completely denied.
21. Averments in paras (14) & (15) of the plaint are not correct and denied. Sale deed executed in
favour of D5 is a valid deed.It is supported by consideration and the share of P1 is duly paid
and collected.
22. Averments in paras (16) & (17) are denied. Latter is incomplete.
23. On 10/11/2005, D1 to D5 had approached D5 for seeking additional sum. When D5 refused,
they brought constructing material and attempted to construct and encroach in schedule
property. Hence in order to prevent them, a suit for injunction was filed by D5 and D1 gave a
undertaking to court that nothing will be constructed.
24. Suit is bad for non-joinder of necessary party, P1 is not entitled to any reliefs and is to
dismissed with costs.

What is stated is true and best to my knowledge , information and belief.

Dated 16th Aug, 2006.

AFFIDAVIT (enclosed)

IN THE XCTH CITY CIVIL COURT, BENGAURU

Present: Smt Fathima Beevi, B Sc., LL.B(Spl)

Judgment dated 3rd July 2009

O. S. No. 1358/2005

BETWEEN

Parvathi, W/o Chowdayya, aged 19 years, 27th Main,

Sector 5, HSR Layout, B’luru -102 – Plaintiff

AND

1. Padmavathi W/o Late Srinivas aged about 65, 4/45,Bhavani Layout, BH Post, Blore -29
2. Sukumari D/o Padmavathi, aged 28 years, residing ---------------do-----------------------------------
3. Uma, D/o Padmavathi, aged 25 years, residing ---------------do-------------------
4. Usha, D/o Padmavathi, aged 22 years, residing ---------------do-------------------
5. Shree Choudeshwari Temple Trust, Bhavanthi Street, Banerghatta Rd, Blore.

JUDGMENT
1. Suit for partition and separate possession.
2. P’s case is stated as follows:
P is the daughter of D1. D2 to D4 are sisters of P1. Plaint schedule property comprised in Sy
No 2116, Bommanahalli Village belongs to P and D1 to D4 by virtue of partition deed no. 2284
of 1990. The D schedule described in the deed was allotted towards the share of P and D 2 to
D4. P has 1/5th share over schedule property. Subsequently D1 surrendered 2 cents of said
property to nursery school. In the remaining schedule property, partition is sought for. D5 is
the adjoining property owner who has no right over the same. D1 to D4 had executed
documents in favour of D5 with consent and knowledge of P. D1 to D4 have no right to alienate
property over which P has 1/5th share. P has attained majority on 5/5/2004. Alienation of
minor’s share without obtaining necessary sanction is void ab initio. P is not bound by the
document and her share is not at all affected by the alienation. P therefore prays for partition
and separate possession for her 1/5th share over plaint property and other incidental reliefs.
3. D 1 to D 4 remain ex parte. D5 is the contestinf defendant who filed written statement
contending as follows: that the suit is not maintable either on law or on facts. P has no title or
possession over property. She had no right to institute suit for partition. The suit is collusive
one instituted at the instance of D1 to D4 and P. Partition deed No. 2284 of 1990 does not
bind the plaint item. The predecessors to the P and D1 to D4 did not have any title over the
plaint item. Certain items were set apart for the idol and those were managed by Kumti family.
The head of family had executed a settlement deed in favour of diety Choudeshwari temple.
Gifted item includes the plaint item and has an extent of 2 acres and 53 cents in Sy No. 2116
of Bommanahalli village. The property thus belongs to the temple. The claim of title by the P
and D1 to D4 on basis of partition deed 2284 of 1990 is not sustainable. At the time of
execution of sale deed in favour of temple, settlement deed was not available with the temple
trust. To avoid litigation D5 took a sale deed from D 1 to D4. The share of P was deposited in
 SIB A/c and since withdrawn by D1 to D4. She is stopped from challenging the sale deed. On
11/11/2005 D5 refused to make additional payment. To retaliate D1 to D4 started
constructing on plaint property and a suit was filed and injunction obtained against them. D5
has duly paid the tax and suit is liable to be dismissed.
4. Following issues are raised for trial:
(i) Is the suit maintainable?
(ii) Whether the plaintiff has right, title and possession over plaint property?
(iii) Whether the plaintiff is bound by sale deed?
(iv) Is prayer for partition allowable?
(v) Reliefs and costs.
5. The evidence consists of oral testimony of PW1 and DW 1 and 2. Ex. P1 & P2 and D1 & D2 are
marked.
6. Issue no. 2 & 3: The suit is filed for partition and separate possession of P’s 1/5th right. P is
deriving her title through partition deed 2284 of 1990 whereby D schedule property was
jointly allotted to P and D1 to D4. Subsequently D1 to D4 executed sale deed in favour of D5
for and on behalf of minor P transferring the title and possession in schedule property in
favour of D5. P is challenging the alienation when she was a minor. According to her, she is
not bound by the sale deed and that her share remains unaffected by said sale deed. Thus
ignoring the sale deed, the partition deed is laid. Ex. Is the partition deed. The document also
recited prior title deed registered in S. R. O. Bommanahalli at page 30 to 33 Vol. No. 92 in Book
no. 2. The sale deed in favour of D5 also makes mentions of these documents. After obtaining
assignment in favour of temple in 2002 they kept silent till filing of the suit. Now D5 challenges
title of P and D1 to D4 on basis of Ex. D1 settlement deed. D5 attempted to set up a case that
properties including plaint item were managed by Kumti family who were holding property
for idol attending poojas and managing the temple. By way of settlement deed no.
16668/1908 and gifted property in Sy No. 2116 of Bommanahalli village is having 2 acres and
53 cents. D5 claims title based on Ex. D1. It is to be noted that since 1908 till 2005 D5 admitted
the title of P and D1 to D4. They obtained sale deed in their favour and acting on it mutation
was affected. As per Ex. D1 they admitted possession of P and D1 to D4. No revenue tax has
been paid till 2002 except registration copy of document 1668/1908. There is no scrap of
paper to prove title, possession or management of property. Being a temple trust, there
cannot be any difficulty to produce documentary evidence. There must be registers showing
immovable properties of temple. If the temple has been in possession, revenue tax must be
paid to the idol. If the property is capable of generating income, it must find place in income
and expenditure register. Even if Ex. B1 is assumed to be valid, it has not been acted upon. It
appears that gift has not been taken into effect. On the other hand P has established acts of
right and interest by virtue of Ex. P2 and by sale deed executed in 2002 by paying tax. Both
documents refer to earlier deeds of title.
7. The learned counsel for D5 attempted to canvass the position that an admission per se cannot
confer title to the property. The said argument is set up based on Thayyil Mammo and Another
v. Kottiath Ramunni and Others, AIR 1966 SC 337. Relying on above decisions, learned counsel
for D5 pointed out that taking out sale deed in their favour without knowing their title over
the property does not effect their title and that P and D1 to D4 were holding only pseudo title.
The question does not arise in the present case because I have already held that P and D1 to
D4are holding better title than D5.
8. The next question is the validity of sale deed executed by D1 to D4 in favour of D5. P was a
minor at the time of the sale in year 2002. P attained majority on 5/5/2004. P alleges that D1
had alienated her property without obtaining permission under the Hindu Minority and
 Guardianship Act. Alienation of minor’s share without prior permission of the court under
section 8(2) of the Act is void and hence, according to the plaintiff, she is not bound by the
sale deed. This argument is not of D5 who argues that such permission is not necessary in case
of minor’s share. To substantiate the argument learned counsel for D5 has placed reliance on
Sandhya Rajan Antapurkar v. State of Maharashtra 1999 SCC OnLine Bom 735. It is held that
courts permission is not necessary for a natural guardian to deal with minor’s property only if
it is undivided interest in joint family property. The facts of that case are different from the
instant case. There is no undivided share in the present case. Property was portioned here as
per Ex. P2. After Hindu Joint Family Abolition Act each share holer was holding the property
separately and by virtue of partition they were given plaint item towards their share and their
share holders jointly held the property. Therefore the argument that P was holding undivided
share over plaint item does not hold good. It follows that permission of the court is mandatory
to alienate the minor’s share. Admittedly, the permission was not obtained for transfer of
minor’s share. Therefore the alienation is hit by section 8(2) of the Act. After attaining majority
she chose to challenge the alienation. Hence, she is not bound by the document as far as her
share is concerned. The document holds good to the extent of transfer of rights of D1 to D4.
9. Issue No. 4 In view of the findings the Issues no 2 and 3, P shall be entitled to 1/5th share over
the plaint item. She is entitled to partition and separate possession of her 1/5th share.
10. Addl. Issue no. 6. The learned counsel for D5 argued that the suit is bad for non-joinder of
necessary party in as much as the anganwadi i.e., state of Karnataka is not made a party to
the suit. P contends that two cents were surrendered to anganwadi. No document was
executed by D1 in favour of State of Karnataka. Necessary documents were not produced
evidencing the alienation. Further, D5 does not take in the above 2 cents and hence State of
Karnataka is not a necessary party of the dispute involved in the suit. Therefore, the P cannot
be non-suited on that ground.
11. Issue No 1: A suit for partition by a major, challenging sale deed executed by her natural
guardian during her minority is well maintainable. It is not at all necessary to ask for a relief
to set aside the sale deed. She can ignore the document as far as her right is concerned. It suit
is thus perfectly maintainable.
12. Issue No. 5 :- It can be seen that at the time of the execution of sale deed a sum of Rs eight
lakhs was deposited in SIB, Christ University Branch, being the minor’s share. The amount was
appropriated by the P and D1 to D4. The Br. Manager of SIB was summoned before this court
and has proved the deposit and withdrawal. Thus the appropriation is unjust and unlawful
enrichment. On equitable grounds the D5 is entitled to get back the said amount together
with interest. As per Ex. D1 the amounted was deposited on 24.04.2002 and withdrawn by D1
on 24.05.2003 i.e., prior to date f majority of P. If no provision is made in the decree for the
return of the amount appropriated, D5 will be put in huge loss. Hence provision is made in the
decree for the recovery from 24.04.2002 together with interest @ 6%. D5 shall pay requisite
court fee before execution.
13. In the result the preliminary decree is passed in following terms:
(i) That P shll be allowed partition and separate possession of 1/5th share over plaint
schedule property by metes and bounds;
(ii) That D5 shall be given a decree for recovery of Rs eight lakhs from P and D1 to D4
together with interest @ 6% from 24.04.2002;
(iii) That 1/5th share be allotted to P made first charge for the debt due to D5;
(iv) That D5 shall be directed to pay requisite court fee before taking execution and
(v) There will be no order as to costs.
Dictated to C A , transcribed by her, revised and corrected and pronounced in open
court on this third day of July, 2009.

Sd/-
FATIMA BEEVI
XCTH CITY CIVIL COURT