1 OS No.

888/2013

KABR020012272013

IN THE COURT OF THE VII ADDL. SENIOR CIVIL JUDGE

AND JMFC, BENGALURU RURAL DISTRICT, BENGALURU.

Dated this the 12th day of April 2023

PRESENT : Sri. Nagesha C. B.A.L., L.L.B.

VII Addl. Senior Civil Judge & JMFC,
Bengaluru Rural District, Bengaluru.

O.S. No.888/2013
Plaintiff/s :

1. Smt.Manjula
W/o. Srinivasa,
D/o. Late Muniswamy,
Aged about 32 years,
R/at. Dodda Thogur,
Electronic City post,
Begur Hobli,
Bangalore-100.

2. Smt. Lakshmamma,
D/o. Late Abbayappa,
W/o. Abbayya,
Aged about 49 years,
R/at. No.17, 10th Cross,
Patel layout, Varthur,
Balagere Road,
Bangalore-87.
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3. Smt.Nagamma
D/o. Late Abbayappa,
W/o. Thandavappa,
Aged about 55 years,
R/at. Kodathur, Malur Hobli,
Kolar District.

4. Smt.Shanthamma
D/o. Late Abbayappa,
W/o. Nagaraj,
Aged about 47 years,
R/at. Mayasandra,
Attibele Hobli,
Anekal Taluk.

(Rep. by Adv Sri.AKV)

V/s
Defendant/s :

1. Munithayappa
S/o. Late Abbayappa,
Aged about 68 years,
R/at. Koogur Village,
Sarjapura Hobli,
Anekal Taluk.

2. Kantharaju
S/o. Late Abbayappa,
Aged about 60 years,
R/at. Varthur,
Sorency Road,
K.R.Puram Hobli
Bangalore-87.
 3 OS No.888/2013

3. Smt.Yelasamma
W/o. Late Narayanaswamy,
Aged about 50 years,

4. Chandru
S/o. Late Narayanaswamy,
Aged about 35 years,

5. Smt.Manjula
D/o. Late Narayanaswamy,
Aged about 33 years,

6. Rajappa
S/o. Late Narayanaswamy,
Aged about 31 years,

Defendants No. 3 to 6 are

R/at. Koogur Village,
Sarjapura Hobli,
Anekal Taluk.

7. Venkatesh
S/o. Late Muniswamy,
Aged about 39 years,

8. Thayappa
S/o. Late Muniswamy,
Aged about 35 years,

9. Muniyappa,
S/o. Late Muniswamy,
Aged about 33 years,

10. Smt.Muninarayanamma
W/o. Late Muniswamy,
Aged about 65 years,
 4 OS No.888/2013

Defendants No. 7 to 10 are

R/at. Dodda Thogur Village,
Begur Hobli,
Electronic City Post,
Bangalore-100.

11. R.Narayanappa,
S/o. Huskur Ramaiah,
Aged about 83 years,
R/at. Varthur Village,
Avalahalli Road,
K.R.Puram Hobli, East Taluk,
Bangalore-87.

(Rep. by Adv Sri.AS-D11,

D1 to 10 are Exparte.)

Date of Institution of Suit 09.07.2013

Nature of Suit Partition
Commencement of evidence 01.10.2018
Completion of evidence 20.01.2023
Judgment Date 12.04.2023
Total duration Year/s Month/s Day/s
09 09 03

(Nagesha C.)
VII Addl. Senior Civil Judge & JMFC,
Bengaluru Rural District, Bengaluru.
 5 OS No.888/2013

:JUDGMENT:

This is a suit filed by the plaintiffs for the relief of

partition and separate possession and to declare the sale

deed dated: 12.04.1995 is null and void and not binding on

them.

2. BRIEF FACTS OF THE CASE ARE AS UNDER:

The plaintiff averred that, the suit schedule property

bearing Sy.No.107/2B2 measuring 1 acre and 16 guntas

situated at Varthur Village, Varthur Hobli, Bangalore East

Taluk herein after referred as suit schedule property

originally belongs to one Sri.Abbayappa who has purchased

the same for valuable consideration from his vendors. The

said Abbayappa is the grandfather of 1st plaintiff and father of

plaintiffs No.2 to 4. The said Abbayappa through his first wife

Smt.Muniyamma the 1st plaintiff, defendants No.7 to 9 were

born. The said Abbayappa through his 2 nd wife namely

Smt.Muniyamma three sons and three daughters were born

i.e., defendants 1 to 3 and plaintiffs 2 to 4 herein. The 2 nd son

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of Abbayappa namely Narayanaswamy died intestate leaving

behind his wife Smt.Yelasamma and two children defendants

No.4 & 6 and daughter defendant No.5 as his legal heirs. The

said Abbayappa died intestate leaving behind plaintiffs and

defendants 1 to 10 as his legal heirs to succeed and inherit in

respect of suit schedule property. The defendants No.4 to 10

without the consent and knowledge of plaintiffs they have

sold suit schedule property in favour of defendant No.11 by

virtue of registered sale deed dated: 12.04.1995. Further the

plaintiffs averred that they and the defendants 1 to 10 are the

members of Hindu Undivided Joint Family and suit schedule

property is the joint family property, and defendants No.1 to

10 have no right to execute sale deed in favour of defendant

No.11 in respect of suit schedule property without their

consent and knowledge to deprive their share. Hence this

suit.

3. After service of summons the defendants No.1 to 10

placed exparte, the defendant No.11 has appeared through

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his counsel and filed detailed written statement admitting the

sale deed in the name of Abbayappa in respect of suit

schedule property. Further he has seriously disputed

relationship of plaintiffs with deceased Abbayappa. Further

he contended, he has purchased suit schedule property after

verifying all the title deeds as well as revenue records

satisfying himself that, the defendants 1 to 3, 6 to 8 and 10

are the absolute owners and in possession of suit schedule

property. Further he contended, the plaintiffs are totally

strangers to the schedule property as well as family of

Abbayappa. On the basis of sale deed he has been in peaceful

possession and enjoyment of suit schedule property by

mutating revenue records in his name. Further he contended,

plaintiffs and defendants 1 to 10 colluding each other and

filed false suit by instigating plaintiffs to make wrongful gain

from him. Further he contended, the court fee paid by

plaintiffs is insufficient. Further he contended, the suit is

barred by limitation from the date of sale deed. Hence he

sought to dismiss the suit.

 8 OS No.888/2013

4. Upon the pleadings my learned predecessor has framed

the following issues.

:ISSUES:
1. Whether the plaintiffs prove that the suit
schedule property is joint family property?
2. Whether the plaintiffs prove that the Sale
Deed dated: 12.04.1995 is not binding on
them?
3. Whether the defendant No.11 prove that the
court fee paid by the plaintiff is insufficient?
4. Whether the defendant No.11 proves that
the suit of the plaintiff is not maintainable?
5. Whether the defendant No.11 proves that
the suit is barred by limitation?
6. Whether the plaintiff is entitled for the relief
sought in the suit?
7. What order or decree?

5. In order to prove case of the plaintiffs, plaintiff No.1

entered into witness box and examined as PW1 and got

marked Ex.P1 to P5. In support of plaintiffs case no

independent witness has been examined. On the other hand,

the GPA holder of defendant No.11 entered into witness box

 9 OS No.888/2013

and examined as DW1 and got marked Ex.D1 to D22. In

support of case of defendant No.11 no independent witnesses

has been examined.

6. Heard arguments on behalf of plaintiffs and also

defendant No.11. Perused the written arguments filed by

defendant No.11.

7. My findings to the above issues are as under:-

Issue No.1 : In the Negative

Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Affirmative
Issue No.6 : In the Negative
Issue No.7 : As per the final order
for the following:
:REASONS:

8. Issue Nos.1 & 2:- These issues are inter-linked with

each other. Therefore, in order to avoid the repetition of facts

and circumstances, they are taken together at one stretch for

common discussion. This is a suit filed by the plaintiffs for

 10 OS No.888/2013

the relief of partition and separate possession and to declare

the sale deed dated: 12.04.1995 is null and void and not

binding on them. In order to prove the case of the plaintiffs, 1st

plaintiff entered into witness box and examined as PW1 and

filed affidavit in lieu of examination-in-chief by reiterating the

averments made in the plaint. In support of her oral

testimony she got marked Ex.P1 to P5. Ex.P1 is the RTC,

Ex.P2 is the sale deed dated: 15.04.1960, Ex.P3 & P4 are the

Family Trees, Ex.P5 is the death certificate. In support of

plaintiffs case no independent witness has been examined.

On the other hand, the GPA holder of defendant No.11 has

been examined as DW1 and filed affidavit by examination-in-

chief and reproduced the averments made in the written

statement. In support of his oral testimony he got marked

Ex.D1 to Ex.D22. Ex.D1 to D3 are the sale deed dated:

01.03.1995, Ex.D4 & D5 are the tax receipts, Ex.D6 to D8

are the endorsement, Ex.D9 is the RTC, Ex.D10 is the Legal

notice, Ex.D11 is the postal receipts, Ex.D12 to D17 are the

postal acknowledgment, Ex.D18 to D22 are the Postal return

 11 OS No.888/2013

cover, Ex.D18(a) to D11(a) are the Notice. In support of case

of defendant No.11 no independent witnesses has been

examined.

9. It is not in dispute, the suit schedule property originally

acquired by Abbayappa during his life time by virtue of

registered sale deed dated: 15.04.1960, which is marked as

Ex.P2. It is further not in dispute, after death of Abbayappa

the defendants No.1 to 3, 6 to 8 and 10 have sold suit

schedule property in favour of defendant No.11 by virtue of

registered sale deed dated: 12.04.1995. It is further not in

dispute, on the basis of sale deed all the revenue records are

standing in the name of defendant No.11 as per Ex.D4 to D9.

The entire case of the plaintiffs, the 1 st plaintiff is the grand

daughter of deceased Abbayappa and plaintiffs No.2 to 4 are

the daughters of Abbayappa through his 2 nd wife by name

Smt.Muniyamma. The defendant No.11 in his written

statement he has seriously disputed relationship of plaintiffs

with deceased Abbayappa. In order to prove relationship of

 12 OS No.888/2013

plaintiffs with deceased Abbayappa the PW1 got marked

Ex.P3 & P4 family trees issued by Deputy Tahasildhar Begur

Hobli, Bengaluru South Taluk.

10. As could be seen from aforesaid family trees the

defendant No.8 has applied obtained in his name. In the

aforesaid family trees the 1st plaintiff is shown as sister of

defendant No.8. The names of plaintiffs No. 2 to 4 are not

forthcoming in the aforesaid family trees. Further the

plaintiffs claiming partition through Abbayappa. Admittedly,

Abbayappa name is not forthcoming in the family tree at

Ex.P4. The names appearing in the family tree at Ex.P4 are

not the parties in the present suit except plaintiff No.1 and

defendants No.8, to 10. The plaintiffs have fail to explain how

the persons shown in the Ex.P4 are related to Abbayappa.

Moreover, the names of plaintiffs No.2 to 4 are not

forthcoming in the family tree at Ex.P4. When defendant

No.11 as seriously disputed relationship of plaintiffs with

deceased Abbayappa, the incumbent upon the plaintiffs to

 13 OS No.888/2013

prove their relationship with Abbayappa by producing

cogent evidence. Except Ex.P3 and P4 the plaintiffs have not

produced any iota of materials before this court to

substantiate, they are the granddaughter and daughters of

deceased Abbayappa. Moreover, the family tree produced by

PW1 obtained by defendant No.8 from the concerned

authority. What is the relevancy of family tree to prove

relationship has elaborately discussed by our Hon’ble High

Court of Karnataka in the case of Smt. Sarojamma V/s Smt

Vimala and others in RFA.NO.2412 OF 2007. Wherein their

lordship held that, the family tree issued by village accountant

on the basis of the statement given by a party in his presence

is a self serving statement and said document cannot be of no

assistance to prove relationship.

11. In view of the preposition extracted in the aforesaid

decision the family tree is no relevancy to prove relationship

of parties. Further the plaintiffs have failed to comply the

provisions of Section 50 of Indian Evidence Act to examine

 14 OS No.888/2013

any one of the person acquainted with the relationship of

plaintiffs with deceased Abbayappa. Admittedly, the

defendants No.1 to 3, 6 to 8 and 10 have already alienated

suit schedule property in favour of defendant No.11 by virtue

of registered sale deed dated: 12.04.1995. When plaintiffs

have fail to prove they are the legal heirs of deceased

Abbayappa, they have no right to challenge the aforesaid sale

deed executed by defendants No.1 to 3, 6 to 8 and 10 in

favour of defendant No.11. Therefore, Issue Nos.1 and 2 are

answered in the Negative.

12. Issue No.3: The defendant No.11 in his written

statement he has taken a contention the court fee paid by

the plaintiffs is insufficient. Admittedly, this is a suit filed by

the plaintiffs for the relief of partition and separate

possession in respect of suit schedule property. As per

Sec.35(2) of KCF and SV Act, the plaintiffs have paid court

fee of Rs.200/- each in respect of their each share. In the

plaint the plaintiffs categorically averred that, they and the

 15 OS No.888/2013

defendants 1 to 10 are in joint possession and enjoyment of

suit schedule property. While considering possession of

plaintiffs in a suit for partition the averments made in the

plaint are only germane. Even in the cross-examination of

PW1 the suggestion was put to the witness that, the

defendant No.11 is in possession of suit schedule property,

but witness denied the same. Therefore the court fee paid by

the plaintiffs is just and proper. Accordingly, this issue is

answered in the Negative.

13. Issue No.4: The defendant No.11 further taken a

contention in the written statement the suit is not

maintainable. In the entire written statement the defendant

No.11 has fail to explain under what provision the present

suit is not maintainable. Admittedly, the plaintiffs filed the

present suit seeking partition in respect of suit schedule

property originally belongs to Abbayappa. I have already held

that the plaintiffs have fail to prove they are the

granddaughter and daughters of deceased Abbayappa by

 16 OS No.888/2013

producing cogent evidence. Therefore the defendant No.11

has fail to prove under what provision the present suit is not

maintainable. Accordingly, this issue is answered in the

Negative.

14. Issue No.5: The defendant No.11 in his written

statement he has taken a contention that, the suit is barred

by law of limitation to challenge his sale deed from the date

of registration of the sale deed. Admittedly, the sale deed of

defendant No.11 is registered before the jurisdiction Sub-

Registrar on 12.04.1995. The plaintiffs contended, the

aforesaid sale deed executed by defendants No.1 to 3, 6 to 8

and 10 are not binding on them, because they neither parties

nor signatories to the aforesaid sale deed. As per the plaint

averments the plaintiffs and defendants No.1 to 10 are the

members of Hindu Undivided Joint Family. At this juncture I

would like to rely section 3 of TP Act by relying said

provision, whether registration of sale deed in respect of

alleged joint family property would amount to constructive

 17 OS No.888/2013

notice to all members of the joint family. The purpose of

registration of sale deed is to put to notice the general

principles of general public about a particular document

having been registered and a transaction having occurred. A

registration of a document makes it a public document and

such registration is also reflected relating in to the

Encumbrance the said Certificate property, thereby

indicating that there is an encumbrance created on the

property. Constructive notice is a notice which treats a

person who ought to have known a fact, as if he actually

does know it. It is the knowledge which the court imputes to

a person upon a legal presumption so strong that it cannot

be allowed to be rebutted, that knowledge must have been

obtained by the person had he made all the relevant

inquiries. In terms of Explanation 1 to Section 3 of the

Transfer of Property Act, if a transaction relating to the

immovable property needs to be effected by a registered

instrument, under law, then the registration of the document

will be deemed as Constructive Notice. The notice of such

 18 OS No.888/2013

instrument will be deemed from the date of registration of

such instrument. Section 3 of the Transfer of Property Act is

extracted hereunder for easy reference:

3. Interpretation clause:— In this Act, unless there is

something repugnant in the subject or context,—

“immoveable property” does not include standing timber,

growing crops or grass; ‘‘instrument”

instrument; means a non-testamentary instrument;

“attested”, in relation to an instrument, means and shall be

deemed always to have meant attested by two or more
witnesses each of whom has seen the executant sign or affix
his mark to the instrument, or has seen some other person
sign the instrument in the presence and by the direction of
the executant, or has received from the executant a
personal acknowledgment of his signature or mark, or of the
signature of such other person, and each of whom has
signed the instrument in the presence of the executant; but
it shall not be necessary that more than one of such
witnesses shall have been present at the same time, and no
particular necessary;

“registered” means registered in any part of the territories

to which this Act extends under the laws for the time being
in force regulating the registration of documents;

“attached to the earth” means—

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or

buildings; or
 19 OS No.888/2013

(c) attached to what is so imbedded for the permanent

beneficial enjoyment of that to which it is attached;

“actionable claim” means a claim to any debt, other than a

debt secured by mortgage of immoveable property or by
hypothecation or pledge of moveable property, or to any
beneficial interest in moveable property not in the
possession, either actual or constructive, of the claimant,
which the Civil Courts recognise as affording grounds for
relief, whether such debt or beneficial interest be existent,
accruing, conditional or contingent;

“a person is said to have notice” of a fact when he actually

knows that fact, or when, but for wilful abstention from an
enquiry or search which he ought to have made, or gross
negligence, he would have known it.

Explanation I.—Where any transaction relating to

immoveable property is required by law to be and has been
effected by a registered instrument, any person acquiring
such property or any part of, or share or interest in, such
property shall be deemed to have notice of such instrument
as from the date of registration or, where the property is
not all situated in one sub-district, or where the registered
instrument has been registered under sub-section (2) of
section 30 of the Indian Registration Act, 1908 (16 of
1908), from the earliest date on which any memorandum of
such registered instrument has been filed by any Sub-
Registrar within whose sub-district any part of the property
which is being acquired, or of the property wherein a share
or interest is being acquired, is situated:

Provided that—

(1) the instrument has been registered and its registration

completed in the manner prescribed by the Indian
Registration Act, 1908 (16 of 1908), and the rules made
thereunder, (2) the instrument or memorandum has been
duly entered or filed, as the case may be, in books kept
 20 OS No.888/2013

under section 51 of that Act, and (3) the particulars

regarding the transaction to which the instrument relates
have been correctly entered in the indexes kept under
section 55 of that Act.

Explanation II.—Any person acquiring any immovable

property or any share or interest in any such property shall
be deemed to have notice of the title, if any, of any person
who is for the time being in actual possession thereof.

Explanation III.—A person shall be deemed to have had

notice of any fact if his agent acquires notice thereof whilst
acting on his behalf in the course of business to which that
fact is material:

Provided that, if the agent fraudulently conceals the fact,

the principal shall not be charged with notice thereof as
against any person who was a party to or otherwise
cognizant of the fraud.

In order that registration of an instrument may operate as a

notice of its contents, the following three conditions must
be satisfied:

The instrument compulsorily must registrable. be thus,

registration is notice only where the instrument is required
to be registered compulsorily, and not where the
registration is optional.

The registration of the document must be completed in the

manner prescribed by the Indian Registration Act.

The instrument (or its memorandum) and the particulars

regarding the transaction to which it related must be
correctly entered in the registers or books maintained
under the Registration Act.

Such being the case, when a document is registered by

following the due formalities, the document becoming a
 21 OS No.888/2013

public document which would amount to a constructive

notice to one and all about the such registration of the sale
deed.

15. In view of the aforesaid provision the registration of sale

deed would amount to constructive notice to all the joint

family members. In the present suit the plaintiffs themselves

averred that they and the defendants 1 to 10 are members of

joint family. Therefore the plaintiffs should have knowledge

about the sale deed executed by their siblings in favour of

defendant No.11. As per Article 58 of Limitation Act to obtain

declaration suit should have been filed within 3 years from

the date when the right to sue first accrues. Further as per

Article 59 to cancel or set-aside or instrument suit should

have been filed within 3 years from the date of knowledge. I

have already held that the registration of sale deed would

amount to constructive notice to the public as well as joint

family members. Therefore, the plaintiffs have challenged the

sale deed of defendant No.11 dated 12.04.1995 is clearly

 22 OS No.888/2013

barred by limitation as per Article 58 and 59 of Limitation

Act.

16. As could be seen from, age of the plaintiffs as on the

date of suit the 1st plaintiff was aged about 32 years, 2 nd

plaintiff was aged about 49 years, 3 rd plaintiff was aged about

55 years and 4th plaintiff was aged about 47 years. As per

Article 60 of Limitation Act the suit should be filed by

challenging the sale deed within three years from the date of

attaining majority. In the present suit as on the date of suit

the age of the plaintiffs are more than 30 years. Therefore,

the plaintiffs have not filed present suit within three years

from the date of attaining majority. No doubt in a suit for

partition and separate possession there is no limitation, but

if plaintiffs challenged the sale deed executed by joint family

members depriving their share then limitation to challenge

sale deed would arise as per Article 58 & 60 of Limitation

Act. I have already held that the plaintiffs did not challenge

sale deed of defendant No.11 within three years from the date
 23 OS No.888/2013

of attaining majority. Accordingly, the suit of the plaintiffs is

ex-faice barred by law of limitation as per Article 58 & 60 of

Limitation Act. Hence Issue No.5 is answered in the

Affirmative.

17. Issue No.6: On careful perusal of oral and

documentary evidence adduced and produced by plaintiffs

and defendant No.11, the plaintiffs have fail to prove they are

the joint family members and also legal heirs of deceased

Abbayappa by producing cogent evidence. Further the

plaintiffs have not challenged the sale deed of defendant

No.11 within the Limitation as per Article 58 & 60 of

Limitation Act. Therefore the plaintiffs are not entitle for the

relief as prayed in the suit. Accordingly suit of the plaintiffs

is deserves to be dismissed. Hence Issue No.6 is answered

in the Negative.

18. Issue No.7 :- In view of my foregoing reasoning and

conclusion arrived at by me during the discussion of issue

Nos.1 to 6, I proceed to pass the following:

 24 OS No.888/2013

ORDER

The suit of the plaintiffs is hereby dismissed.

Considering the relationship between the

parties there shall be no order as to costs.

Draw decree accordingly.

(Dictated to the Stenographer, transcribed by her, corrected by

me and then pronounced in the Open Court on this 12th April 2023).

(Nagesha C.)
VII Addl. Senior Civil Judge & JMFC,
Bengaluru Rural District, Bengaluru.

ANNEXURES

LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:

PW1 : Manjula

LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:

DW1 : N.Manjunatha

LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:

Ex.P1 : RTC
Ex.P2 : Sale deed dated: 15.04.1960
Ex.P3 & P4: Family Tree
Ex.P5 : Death certificate.
 25 OS No.888/2013

LIST OF EXHIBITS MARKED FOR THE DEFENDANT:

Ex.D1 to D3: Sale deed dated: 01.03.1995
Ex.D4 & D5: Tax receipts
Ex.D6 to D8: Endorsement
Ex.D9 : RTC
Ex.D10 : Legal notice
Ex.D11 : Postal receipts
Ex.D12 to D17: Postal acknowledgment
Ex.D18 to D22: Postal return cover
Ex.D18(a) to D11(a): Notice.
sd/-
(Nagesha C.)
VII Addl. Senior Civil Judge & JMFC,
Bengaluru Rural District, Bengaluru.