KABC010178802000

IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND

SESSIONS JUDGE (CCH.No.44), AT BENGALURU

PRESENT : SRI.BHAT MANJUNATH NARAYAN,

B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .

DATED: THIS THE 15 th DAY OF JANUARY, 2025

O.S.No.6922 of 2000

Plaintiff: 1. Sri. D. Munibeerappa,

S/o Late Doddamuniyappa,
Aged about 35 years,
R/at Kallakere, K.R. Puram Hobli,
Bengaluru South Taluk.

(By sri. S.M.S., Advocate)

-VS-

Defendants: 1. Smt. Narayanamma

W/o Late Doddamuniyappa
Aged about 60 years,(died and
LRs are already on record
2.
Sri. Munipoojappa,
S/o Late Doddamuniyappa,
Aged about 32 years,

Both are residing at Kallakere,

 2 O.S.No.6922 of 2000

K.R. Puram Hobli, Bengaluru

South Taluk.
3.
Smt. Lakshmidevamma,
D/o Late Doddamuniyappa,
Aged about 40 years,
4.
Smt. Nagarathna,
D/o of Late Doddamuniyappa,
Aged about 38 years,
5.
Smt. Vijayalakshmi,
D/o Late Doddamuniyappa,
Aged about 36 years,
6.
Smt. Kanthamma,
D/o Late Doddamuniyappa,
Aged about 34 years,

Defendant No.3 to 6 are

R/at Kallakere, K.R. Puram Hobli,
Horamavu Post,
Bengaluru East Taluk.
7.
Sri. R. Uma Prasad,
Aged about 50 years,
S/o Late B. Rudrappa,
R/at No.237, 13 th Cross,
2 nd Stage, Indiranagar,
Bengaluru-560 017.
8.
Smt. S.G. Shashikala,
Aged about 35 years,
W/o Sri. R.N. Parameshwara,
R/at No.14, Ulsoor Road,
 3 O.S.No.6922 of 2000

9. Indiranagar, Bengaluru-38.
Mrs. B.S. Nanda,
W/o Umaprasad,
No.410, Priyadarshini Apartment,
No.237m and 240, 13 th Cross, 2 nd
Stage,
Indiranagar, Bengaluru-38.

(By D1-J.P., D-2-DSM., D3 to D5-

S., D6-S.R., D7 to D9-V.B.S.,
Advocates)

Date of Institution of the suit : 12-10-2000

Nature of the Suit : Partition

Date of commencement of : 07.08.2002

recording of the evidence
Date on which the Judgment : 15.01.2025
was pronounced
Total Duration : Years Months Days
24 03 03

(BHAT MANJUNATH NARAYAN)

XLIII Addl. City Civil & Sessions Judge,
Bengaluru
 4 O.S.No.6922 of 2000

J U D G M E N T

That, the plaintiff has filed this suit for partition &

separate possession of the suit schedule property. The

plaintiff has also sought for declaration to declare that

Sale Deed dated 29.09.2000 executed by 1 st defendant

in favour of defendant No.7 and 8 is void and not

binding on the rights of the plaintiff.

The suit property is agricultural land described in

the schedule as under:

SCHEDULE

Property situated at Kallakere, K.R. Puram Hobli,

South Taluk, bearing Sy.no.358, extent 1 ace 17
guntas, kushki land 2 guntas karab land having
bounded on:-
East : Jinkathimanahalli boundary
West : Ramanna’s property
North : Muniyappa’s property
South : Kempathimanna & Muniyappa’s Property

2) The facts narrated in the plaint are

under:-

Genealogy of the parties as could be seen

from the pleadings is as under:
 5 O.S.No.6922 of 2000

Doddamuniyappa
(Deceased)

Smt. Narayanamma
(Def.1)

D.Munibeerappa Munipoojappa Lakshmidevamma

(Plf) (Def.2) (Def.3)

Nagarathna Vijayalakshmi Kanthamma

(Def.4) (Def.5) (Def.6)

a. The plaintiff submits that one

Doddamuniyappa died leaving behind him his wife

Narayanamma-Def.No.1, Plaintiff and Defendant No.2-

sons as his legal heirs. The defendant No.3 to 6 are the

daughters of 1 st defendant & Doddamuniyappa It is

specific case of the plaintiff that Doddamuniyappa has

purchased the suit schedule property from his

retirement savings as well as from nucleus of ancestral

 6 O.S.No.6922 of 2000

property in the name of his wife defendant No.1. It is

submitted by the plaintiff that 1 st defendant was house

wife and had no independent income or immovable

properties belonging to her. It is specific case of the

plaintiff that schedule property was purchased in the

name of 1 st defendant as per registered Sale Deed

21.05.1977 out of joint family funds and as such

Doddamuniyappa, defendant No.2 and plaintiff herein

being members of the family are having right over the

suit property. The plaintiff submits that property was

purchased by Doddamuniyappa as a kartha of the joint

family. It is submitted by the plaintiff that suit

schedule property purchased in the name of defendant

No.1 was in possession & enjoyment of joint family

members and land was cultivated by spending joint

family funds and also joint labour & joint efforts of the

members of the family.

 7 O.S.No.6922 of 2000

b. The plaintiff further submits that property is

standing in the name of 1 st defendant, was never

treated as her separate property and it is treated as

joint family property only. Doddamuniyappa father of

the plaintiff and defendant No.2 to 6 had paid land

revenue in the name of 1 st defendant out of joint family

funds. Therefore, the plaintiff has contended that

though property is in the name of 1 st defendant, it is

treated as joint family property and she has lost her

right to deal with property independently. The plaintiff

submits that defendant No.1 to 6 and plaintiff had

equal rights in the suit property.

c. It is specific case of the plaintiff that

defendant No.7 and 8 are claiming to have purchased

the suit schedule property as per registered Sale Deed

dated 29.09.2000, said to have been executed by 1 st

defendant. The plaintiff has further pleaded that he

came to know about the sale deed only after remand of

 8 O.S.No.6922 of 2000

the suit by Hon’ble High Court in RFA 137 of 2007 and

after filing of written statement by defendant No.7 &8.

It is submitted by the plaintiff that as per sale deed an

area of 01-03-00 is sold but the boundaries mentioned

in the Sale Deed is with respect to entire 01-17-00. It

is submitted by the plaintiff that 1 st defendant is

illiterate lady and none of the family members of the 1 st

defendant have either accompanied nor attested the

Sale Deed. It is further alleged by the plaintiff that by

taking undue advantage of illiteracy of 1 st defendant,

the Sale Deed has been created & got executed behind

the back of the plaintiff and other family members.

The plaintiff submits that the Sale Deed is null & void

and came in existence under suspicious circumstances

and hence, is not voluntarily executed by 1 st defendant.

d. The plaintiff further submits that schedule

property is the joint family property in joint possession

 9 O.S.No.6922 of 2000

of the members of the family and as such the

defendant No.7 and 8 have not acquired right title or

interest over the suit property. It is submitted by the

plaintiff that the extent and boundaries mentioned in

the Sale Deed shows dishonest and fraudulent intention

of defendant No.7 and 8 and members of the family of

the plaintiff were in possession of the property and the

Sale Deed is not binding upon the rights of the plaintiff.

It is further submitted by the plaintiff that Sale Deed

had been got executed by misrepresentation and

playing fraud without disclosing the nature of the

document. It is submitted by the plaintiff that no

consideration amount was paid to 1 st defendant under

Sale Deed and as such, document is to be declared as

void and not binding upon the rights of the plaintiff.

e. The plaintiff submits that def.No.1

Narayanamma was suffering from disorder and illness

relating to mental health and as such, she was not

 10 O.S.No.6922 of 2000

possession of good mental health. The plaintiff further

that Def.No.1-Narayanamma was admitted to National

Institute of Mental Health and Neuro Science Bengaluru

as an inpatient and also received treatment. It is

submitted by the plaintiff that Doctors who have

examined Def.No.1-Narayanamma have advised for

medication and as such, the 1 st defendant

Narayanamma being illiterate and suffering from

mental disorder, was unaware about the legal

consequences of executing Sale Deed in favour of

defendant No.7 and 8. It is submitted by the plaintiff

that defendant No.7 and 8 have taken her to Sub-

registrar offi ce & without making disclosing the nature

of document, got the executed Sale Deed. The plaintiff

submit that prior to execution of alleged Sale Deed,

defendant No.7 and 8 who are knowing very well about

nature of the property, the plaintiff and other children

of 1 st defendant, never consulted them and hence,

 11 O.S.No.6922 of 2000

none of the family members have attested the Sale

Deed. It is submitted by the plaintiff that in the alleged

Sale Deed recitals that funds are needed for herself

and members of her family is an invented one and

Narayanamma was not in position to take any decision

to sell the schedule property.

f. It is submitted by the plaintiff that taking

advantage of name of 1 st defendant appearing the

revenue records pertaining to suit property, the

property has been alienated. It is further submitted by

the plaintiff that suit schedule property was in actual

possession of plaintiff and Mango fruits have been

grown in the suit schedule property. Since, 1 st

defendant with ulterior motive has alienated the

property and entered into an agreement of sale in

respect of schedule property and is about to dispose of

the property, plaintiff had filed suit for partition and

separate possession of the suit schedule property.

 12 O.S.No.6922 of 2000

3) a. Initially suit was filed against defendant

No.1 and 2 only. The defendant No.1 remained ex-parte

and as per judgment dated 01.09.2023 suit came to

decreed holding that plaintiff is entitled for ½ share in

the suit schedule property. Against judgment and

decree dated 01.09.2023 the original defendant No.1

Narayanamma had preferred regular first appeal before

Hon’ble High Court of Karnataka at RFA.No.137 of

2007. The regular first appeal filed by the defendant

No.1 Narayanamma came to be allowed and suit was

remanded for fresh disposal. Def.No.1 Narayanamma

appeared before the court and filed written statement

on 20.01.2006. In the written statement 1 st defendant

Narayanamma had denied that plaintiff is having share

in the suit schedule property. 1 st defendant

Narayanamma has pleaded that she is also having 4

daughters apart from plaintiff and defendant No.2 and

contended that suit is bad for non-joinder of necessary

 13 O.S.No.6922 of 2000

party. The defendant No.1 Narayanamma has also

denied that the property is purchased by her husband

Doddamuniyappa in her name as per Sale Deed dated

21.05.1977. 1 st defendant Narayanamma had

contended that suit schedule property is purchased by

her out of own earnings from one Smt. Chinnakka, and

the plaintiff and 2 nd defendant have endorsed the same

stating that schedule property is owned by 1 st

defendant Narayanamma as per deed of declaration

dated 29.09.2000.

b) The 1 st defendant has contended that suit

schedule property is her self-acquired property and

plaintiff and other defendant No.2 is not having right

over the property. It is also denied by the defendant

No.1 that suit property is the ancestral property of

Late Doddamuniyappa. The defendant No.1 has also

denied that plaintiff was in possession of the suit

property, planted Mango trees and enjoying the same.

 14 O.S.No.6922 of 2000

It is contended by the 1 st defendant that she has sold

the part of the suit schedule property prior to filing of

the suit and during the pendency of the suit and little

portion in the remaining property was gifted to plaintiff

by registered Gift deed. The defendant No.1 has

contended that plaintiff, defendant No.2 and her four

daughters have executed deed of declaration declaring

that 1 st defendant is the absolute and sole owner of the

property and as such she is having absolute right to

alienate the property.

c) The 1 st defendant further submits that after

obtaining an ex-parte decree plaintiff enticed 2 nd

defendant to file another suit for partition at

O.S.No.7393 of 2003 and 2 nd defendant & plaintiff have

joint hands to harass the 1 st defendant and purchaser

of the suit schedule property causing inconvenience,

damages to the compound constructed by purchaser-

defendant No.3 and 4 of O.S.No.7393 of 2003. The

 15 O.S.No.6922 of 2000

police complaint is also filed against the plaintiff and

defendant No.2. The 1 st defendant has further

contended that there is no cause of action to file the

suit and court fee is paid is insuffi cient. On these

counts the defendant No.1 prayed that suit of the

plaintiff be dismissed with cost.

4) As 1 st defendant has taken contention that

she is having 4 daughters, they have impleaded as

defendant No.3 to 6. The defendant No.3 to 5 have

appeared & filed written statement in the suit. The

defendant No.3 to 5 have admitted that suit schedule

property is the joint family property purchased by

Doddamuniyappa in the name of 1 st defendant out of

his retirement saving as well as from nucleus of the

ancestral property. The defendant No.3 to 5 have also

admitted that plaintiff and defendant No.2 to 6 are

having share in the suit schedule property and 1 st

 16 O.S.No.6922 of 2000

defendant is not having absolute right to alienate the

property. It is submitted by the defendant No.3 to 5

that 1 st defendant has already given share to defendant

No.6 by way of Gifting part of the property and as

such, they are also entitled for share in the suit

schedule property along with plaintiff and defendant

No.2.

5) Defendant No.6 has filed separate written

statement and admitted that she is the daughter of

Doddamuniyappa and Smt. Narayanamma the 1 st

defendant herein and also relationship between the

parties to the suit as stated in the plaint. The

defendant No.6 has admitted other contentions taken

by the plaintiff in the plaint. Defendant No.6 has also

disputed the validity of Sale Deed dated 29.09.2000

executed by 1 st defendant in favour of defendant No.7

and 8 as same is not supported by consideration and

 17 O.S.No.6922 of 2000

obtained by playing fraud and misrepresentation. The

defendant No.6 also contended that 1 st defendant was

not in good state of mental health and in the year 1982

only her mental health was deteriorated and gradually

she lost her sense of understanding anything. It is

further submitted by defendant No.6 that defendant

No.7 and 8 claims to be purchasers of the suit schedule

property from defendant No.1 though they having full

knowledge about the nature of the property got

transferred the property by playing fraud and

misrepresentation. It is submitted by the defendant

No.6 that by taking advantage of illiteracy of

Narayanamma and her children, the defendant No.7

and 8 got executed Sale Deed in their favour. Since,

Sale Deed dated 29.09.2000 is out-come of fraud,

undue influence and misrepresentation, the defendant

No.6 has contended that the same is not binding upon

the share of the defendant No.6 and she is having 1/7 th

 18 O.S.No.6922 of 2000

share in the suit schedule property. Accordingly

defendant No.6 prayed that suit be decreed as prayed.

6) a. The defendant No.7 and 8 have denied

that suit schedule property is the joint family property

of plaintiff and defendant No.1 to 6. The defendant

No.7 and 8 have contended that as per deed of

declaration executed by plaintiff and defendant No.2 to

6 dated 29.09.2000 1 st defendant is the absolute owner

in possession of the suit property. It is denied by the

defendant No.7 and 8 that suit property is purchased

by Doddamuniyappa in the name of 1 st defendant and

as such, suit property is the joint family property of

plaintiff and defendant No.1 to 6. It is contended by

the defendant No.7 and 8 that they have purchased the

suit schedule property and def.No.1 Narayanamma has

sold the property by knowing the contents of the

document. It is further denied by the defendant No.7

 19 O.S.No.6922 of 2000

and 8 that fraud has been committed by them and

hence, Sale Deed dated 29.09.2000 is void.

b) The defendant No.7 and 8 have also contended

that 1 st defendant was in sound state of mind at the

time of execution of Sale Deed and hence it cannot be

said that due to mental condition 1 st defendant was

unaware about the consequences of execution of the

document. The defendant No.7 and 8 have claimed

that they are in possession & enjoyment of the suit

schedule property and as such, the claim made by the

plaintiff is not sustainable and liable to be dismissed.

On the these grounds defendant No.7 and 8 are prayed

for dismissal of the suit.

7) The 2 nd defendant has not filed written

statement but he had filed one suit at O.S.No.7393 of

2003 which has been clubbed along with the suit. The

2 nd defendant has also claimed that suit property is the

 20 O.S.No.6922 of 2000

joint family property of Doddamuniyappa which is

purchased in the name of defendant No.1-

Narayanamma. In OS No.7393 of 2008, defendant No.2

had claimed that he is having share in the suit

property.

8) The defendant No.7 and 8 have filed

application at I.A.No.12 under Order VII Rule 11(a) and

(d) of CPC R/w. Section 4 of Benami Transaction

(Prohibition) Act 1988 to reject the plaint. This court

by order dated 31.03.2015 has allowed I.A.No.12 filed

under Order VII Rule 11(a) and (d) of CPC and rejected

the plaint holding that suit is barred under Section 4 of

Benami Transaction (Prohibition) Act, 1988. The suit

filed by the defendant No.2 at O.S.No.7393 of 2003 was

also dismissed on the ground that the same is barred

by Benami Transaction (Prohibition) Act 1988. Against

rejection of plaint by order dated 31.03.2015 the

 21 O.S.No.6922 of 2000

plaintiff herein has filed regular first appeal at RFA

No.766 of 2015. The Hon’ble High Court of Karnataka

by order dated 19.07.2022 has allowed the regular first

appeal setting aside the order passed by this court on

31.03.2015 and remanded the case for disposal in

accordance with law. Accordingly, this case was

restored at its original number and presence of the

parties are secured.

9) During the pendency of RFA No.766 of 2015

Def.No.1 Narayanamma died and her legal heirs are

already on record.

10) During the pendency of the suit defendant

No.8 has relinquished her share in the suit schedule

property in favour of defendant No.7 and thereafter,

defendant No.7 has gifted the property in favour of

defendant No.9, who is the wife of defendant No.9. In

view of the subsequent to events defendant No.9 was

 22 O.S.No.6922 of 2000

also brought on record by filing application under Order

I Rule 10 CPC. Defendant No.9 has also filed

written statement similar to that of defendant

No.7 and 8.

11) By considering pleadings and documents

produced by the parties, my learned predecessor in

offi ce had framed the following issues :-

1. Whether plaintiff proves that the suit

schedule property is joint family
property of plaintiff and defendant
No.1 to 6?
2. Whether defendant No.1 proves that
the suit schedule property is her self-
acquired property?
3. Whether plaintiff is entitled for
partition and separate possession of
his share in suit property? If so, at
what share?
4. Whether D2 proves that the suit is bad
for non-joinder of necessary party?
5 Whether plaintiff is entitled for the
reliefs sought for?
6. What order or decree?
Additional Issues framed on
07.07.2010
 23 O.S.No.6922 of 2000

1. Whether plaintiff proves that

defendant No.7 and 8 have obtained
Sale Deed dated 29.09.2000 from
defendant No.1 by playing fraud and
misrepresentation?
2. Whether plaintiff proves that the Sale
Deed dated 29.09.2000 executed by
defendant No.1 in favour of defendant
No.7 and 8 is null and not binding on
the plaintiff?
3. Whether plaintiff is entitled for
declaration as sought for?

Additional issues framed on

15.07.2011
1. Whether the plaintiff proves that the
Sale Deed dated 29.09.2000 executed
by defendant No.1 in favour of
defendant No.7 and 8 is null and void
and not binding on plaintiff?( Deleted
as per order dated 09.11.2023)
2. Whether defendant No.7 and 8 proves
that the court fee paid by the plaintiff
is not suffi cient?
3. Whether the defendants 7 and 8 prove
that the suit is barred by limitation?

Issue regarding sufficiency of court fees is

considered by this court and as per order dated

 24 O.S.No.6922 of 2000

16.02.2012 the said issued is answered in negative

holding that court fee paid is sufficient.

12. In order to prove the contention of the

plaintiff regarding nature of the property and the

validity of Sale Deed which was under challenged,

plaintiff got himself examined as P.W.1 and got

marked Ex.P.1 to P.7 and after remand Ex.P.8 to

P.37 are marked. At the request of Plaintiff

witness summons to one M.Revanna S/o K.

Muddappa – signatory to sale deed is issued, but in-

spite of repeated issuance of witness summons,

warrant and proclamation, his presence could not

be secured. Defendant No.7 has not adduced

evidence but his Power of Attorney Holder who is

the brother of defendant No.7 is examined as DW.1.

Thereafter the defendant No.7 has executed

 25 O.S.No.6922 of 2000

another General Power of Attorney in favour of his

wife defendant No.9 and she is examined as DW.2.

29 documents were marked on behalf of

defendants. Parties to the suit have not adduced

any further evidence.

13. The learned counsel appearing for the

plaintiff has argued that suit schedule property is

the joint family property consisting of

Doddamuniyappa and his sons, daughters and 1 st

defendant, 1 st defendant had no independent

income and property is purchased by

Doddamuniyappa out of his retirement benefit and

income from salary and also from the joint efforts.

Learned counsel for the plaintiff has argued that

Doddamuniyappa was in joint family with his

brothers but the Doddamuniyappa and his sons,

 26 O.S.No.6922 of 2000

daughters and wife have constituted micro joint

family within larger joint family of Doddamuniyappa

and his brothers and the property is purchased for

the benefit of Doddamuniyappa and his sons,

daughters and wife. Therefore, the learned counsel

for the plaintiff has argued that property is the joint

family property belonging to micro joint family of

Doddamuniyappa and his sons and daughters. The

learned counsel for the plaintiff has contended that

there is no evidence to show that 1 st defendant had

any independent income out of which she can

purchase the property and as such, it has to be

held that the property is purchased by

Doddamuniyappa in the name of 1 st defendant and

as such, it is a joint family property.

 27 O.S.No.6922 of 2000

14. The learned counsel for the plaintiff has

also argued that Sale Deed dated 29.09.2000 is out

coming of fraud and misrepresentation and as such

is a void document. The learned counsel has

attacked Sale Deed dated 29.09.2000 on many

grounds stating that Sale Deed dated 29.09.2000 is

not supported by consideration or no consideration

amount is paid to the 1 st defendant, 1 st defendant

was not at all present when Sale Deed dated

29.09.2000 was presented before Sub-registrar, the

presence of 1 st defendant was secured stating that

she is executing Sale Deed in favour of her

daughter 6 th defendant and thereafter, the Sale

Deed dated 29.09.2000 has been registered on

later date, which was kept pending when it was

presented. Learned counsel for the plaintiff has

also argued that there was a sale agreement

 28 O.S.No.6922 of 2000

between one M. Revanna witness to sale deed and

the defendant No.7 herein which shows that

consideration amount is not paid to the 1 st

defendant.

15. The learned counsel for the plaintiff has

contended that consideration amount is not paid

under Ex.D.4 and the intention of 1 st defendant to

execute the Sale Deed was denied, the defendant

No.7 and 8 have not taken pain to examine

attesting witnesses and as such, it has to be held

that the Sale Deed is outcome of fraud, undue

influence and misrepresentation. It is argued by

the counsel for plaintiff that defendant No.7, DW.1

who is the brother of defendant No.7-advocate

appearing for 1 st defendant as well as 7 th defendant

and one M. Revanna colluding with each other

 29 O.S.No.6922 of 2000

have created Sale Deed without informing the

contents of the Sale Deed. It is argued on behalf of

the plaintiff that Sale Deed has been drafted and

executed in the language not known to 1 st

defendant Narayanamma and there is no recitals in

the Sale Deed that contents of the documents are

read over and explained to 1 st defendant.

Therefore, the learned counsel for the plaintiff has

contended that the Sale Deed is not valid

document. The learned counsel has also drawn my

attention to the cross examination of the

defendants and stated that from the evidence of

DW.2 it cannot be said that she was present at the

time of execution of Sale Deed if compared with

evidence of DW.1 who is also a GPA Holder of

defendant No.7. It is argued by the counsel for the

plaintiff that though written statement is filed by

 30 O.S.No.6922 of 2000

defendant No.1, the same is not verified by filing

affi davit and hence, the written statement cannot

be considered. The learned counsel for the

plaintiff has argued that even if written statement

is considered, in the written statement also 1 st

defendant has not stated to whom she has sold the

property what is consideration received and the

extent of the property sold and the DW.1 who was

appearing for 1 st defendant Narayanamma being

brother of 7 th defendant has concealed the Sale

Deed executed in favour of defendant No.7 and 8

by playing fraud to 1 st defendant Narayanamma

also and as such, there is no reference of name of

purchasers in the written statement filed on behalf

of Def.No.1 Narayanamma. Hence, learned counsel

appearing for the plaintiff has contended that the

Sale Deed is void in law and hence, liable to be set

 31 O.S.No.6922 of 2000

aside. Learned counsel for the plaintiff has referred

following decisions:-

1. Gowtham Swarup V/s. Leela Jaitly and others

2. S.R. Srinivas & Ors V/s. Padmavathamma, 2010
AIR SCW 3935, para-31-34

3. K.V. Narayanaswami Iyer V/s. Ramakrishna

Iyer, 1965 AIR 289 page 7

4. A.K. Kraipak V/s. Union of India, AIR 1970 SC

150

5. Union of India V/s. Ibrahim Uddin & Anr

6. Commissioner of customs (preventive) V/s. M/s
Aaflote textiles (I) Pvt. Ltd others, in Civil Appeal
2447/2007, in paragraphs 9, 10, 11, 12, 13.

7. Veena singh (since dead) by LRs V/s. The

district Registrar

8. Deccan Paper Mills Co.Ltd V/s. Regency

Mahavir Properties and others.

9. Mohommad Abdul Wahid V/s. Nilofer and

another made in SLP (CIVIL) No.14445/2021,

10. Devraj Dogra V/s. Gyanchand Jain, 1981 AIR

981,

11. Singara Sigh V/s. Daljit Singh para 15,

12. Ramathal V/s. K. Rajamani 2023 Livelaw (SC)
666
 32 O.S.No.6922 of 2000

13. Udhav Singh V/s. Madhavarao Scindia AIR

1976 SC 744 para 30.

16. Per contra, the learned counsel appearing for

the defendant No.7 to 9 has argued that Def.No.1

Narayanamma has admitted that she has sold the

property to defendant No.7 and 8 and it is stated in the

written statement that 2 nd defendant by filing another

suit at O.S.No.7393 of 2003 tried to interfere with

possession of defendant No.3 and 4 of that suit who are

the purchasers which implies that Narayanamma has

clearly stated that she has sold the property to

defendant No.7 and 8. It is argued by the counsel for

the defendant that the property purchased in the name

of female is Shridhana property and is considered as

her self-acquired property. It is also argued by the

learned counsel appearing for the Defendant No.7 to 9

that as per Section 14 of Hindu Succession Act

property purchased by Female Hindu is treated as her

 33 O.S.No.6922 of 2000

self-acquisition and as such, it is to be held that the

suit is bad in law as property is self-acquired property

of 1 st defendant. It is argued on behalf of defendant

that documents produced by plaintiff themselves shows

that the property is not a joint family property. The

learned counsel has drawn my attention to Ex.P.11 and

P.12 Partition deeds executed in the family of plaintiff

and others. Leaned counsel for the defendants has

contended that Ex.P.11 Partition deed dated

03.12.2002 is between 1 st defendant and her brother-

in-law i.e., brothers of her husband Doddamuniyappa

and in the said Partition deed there is no reference that

the suit property is a joint family property purchased in

the name of 1 st defendant.

17. The learned counsel for the defendant has

also argued that on the same day the plaintiff,

defendant No.1 and 2 got partitioned the property

 34 O.S.No.6922 of 2000

allotted to 1 st defendant in family partition as per

Ex.P.11 and in that Partition deed also there is no

reference that the suit property is the joint family

property. Therefore, the learned counsel for the

defendants has contended that conduct of plaintiff,

defendant No.1 and 2 clearly establishes that property

is the separate property of 1 st defendant and she had

every right to alienate the suit schedule property. It

is also argued by the counsel appearing for the

defendants that the Sale Deed dated 29.09.2000 is

valid document and defendant No.7 and 8 have

purchased the property thereafter, defendant No.8 has

released her right in the suit schedule property in

favour of defendant No.7 on 17.02.2023 by executing

Release deed and thereafter, 7 th defendant has gifted

the property to defendant No.9 and as such, at present

the defendant No.9 is the owner in possession of the

suit property. The learned counsel for the defendants

 35 O.S.No.6922 of 2000

has also contended that the possession of original

documents clearly shows that property was sold to

defendant No.7 and 8 and consideration amount is

received by defendant No.1. Since, registered

documents are having presumptive value, learned

counsel for the defendants has contended that

examination of attesting witness was not necessary

and hence, suit is liable to be dismissed. The learned

counsel for the defendants has relied upon following

decisions:-

1. LAWS (KAR) – 2022-10-803 in case of K.V.

Nagesh Gowda V/s. Munivenkatappa K.M
2. LAWS (KAR)-2021-12-34 in case of Vijayakumar
V/s. Vanajakshi
3. AIR 1976 SC 744 in case of Udhav Singh V/s.
Madhav Rao Scindia
4. AIR 2018 SC 3080 in case of Siddagangaiah (D)
their LRs V/s. N.K. Giriraja Shetty(D) their LRs.

18. The defendant No.2 & 6 have also filed written

arguments in the similar lines that of plaintiff and

 36 O.S.No.6922 of 2000

prayed that suit be decreed and their share may kindly

be declared by passing preliminary decree.

19. I have perused oral and documentary

evidence adduced by both the parties to the suit in

light of the arguments advanced before me and my

findings on the above issues are:-

Issue No.1: In the Negative

Issue No.2: In the Affi rmative

Issue No.3: Plaintiff is not entitled for

partition and separate
possession
Issue No.4: Does not arise for
consideration
Additional Issue No.1 In the Negative
& 2 framed on
07.07.2010
Additional Issue No.2 Already decided as per
framed on 15.07.2011 order dated 16.02.2012
Additional Issue No.3 In the Negative
Issue No.5 and Plaintiff is not entitled for
additional issue No.3 the relief claimed
framed on 07.07.2010
Issue No.6: As per final order,
for the following:-
 37 O.S.No.6922 of 2000

REASONS

20. Issue No.1 and 2 :- These issues are framed

with respect to nature of the suit schedule property. It

is contended by plaintiff that though property is

purchased in the name of 1 st defendant, the property is

purchased by his father Doddamuniyappa and as such

suit property is the joint family property of plaintiff and

defendant No.1 to 6. Whereas defendant No.1, 7 to 9

are contending that suit property is the self-acquired

property of defendant No.1. In this suit admitted an

undisputed facts are as below:

1. The relationship of plaintiff and defendant No.1

to 6.

2. Suit property was standing in the name of 1 st

defendant and was purchased in the name of 1 st
defendant as per registered Sale Deed dated
21.05.1977.

3. The joint family property consisting of

Doddamuniyappa and his brothers, has been divided
as per Ex.P.11 Partition deed dated 03.12.2002 i.e.,
during the pendency of the suit.
 38 O.S.No.6922 of 2000

4. The joint family property consisting of plaintiff

and defendant No.1 to 6 were also divided during
the pendency of the suit as per Ex.P12 Partition
deed dated 03.12.2002.

The only dispute in the suit is regarding nature of

suit property and validity of Sale Deed.

21. The plaintiff contended that property is

purchased in the name of 1 st defendant and 1 st

defendant had no income and as such, it is a joint

family property. The plaintiff claims that his father

Doddamuniyappa had purchased suit property in the

name of 1 st defendant as per Sale Deed dated

19.05.1977 which is registered on 23.05.1977. In the

present case there is evidence available to show that

defendant No.1 had independent avocation through

which she had income to purchase the suit property.

To show that property is purchased by

Doddamuniyappa in the name of 1 st defendant, there is

no evidence except oral evidence of plaintiff. The

 39 O.S.No.6922 of 2000

plaintiff has contended that property is the Benami

property of his father in the name of his mother for the

benefit of micro family consisting of Doddamuniyappa

and his sons and 1 st defendant only. It is further

contention of plaintiff as his father was joint with his

brothers, the property is purchased in the name of

defendant No.1. It is an admitted fact that when

property was purchased the Doddamuniyappa and his

brothers were joint. The plaintiff is not claiming that

out of the joint family funds available from the joint

family property, the present suit property is purchased

by his father Doddamuniyappa. If that is so then

brothers of Doddamuniyappa will also have share in the

property. However, the plaintiff is claiming that the

suit property is purchased by Doddamuniyappa out of

his retirement benefit, salary income for the benefit of

his family i.e., Doddamuniyappa, his wife, 1 st defendant

Narayanamma, his two sons i.e., plaintiff and defendant

 40 O.S.No.6922 of 2000

No.2. The plaintiff claims that the property is a Benami

property of Doddamuniyappa, which is purchased in the

name of his wife 1 st defendant. While ordering

rejection of plaint as per order passed on I.A.No.12 this

court has held that suit is hit by Benami Transaction

(Prohibition) Act, however the Hon’ble High Court of

Karnataka in RFA No.766 of 2015 has observed that

Benami Transaction (Prohibition) Act is not barred and

following observation was made by the Hon’ble High

Court of Karnataka.

"6. Sub-section (1) of Section 3, as seen,

prohibits a person from entering into any
Benami transaction. Sub-section (3) of Section
3, as seen, makes a person who enters into a
Benami transaction liable for punishment.
Section 5 makes properties held Benami liable
for acquisition without payment of any amount.
But, when sub-section (2) of Section 3 permits
a person to enter into a Benami transaction of
purchase of property in the name of his wife or
 41 O.S.No.6922 of 2000

unmarried daughter by declaring that the

prohibition contained against a person in
entering into a Benami transaction in sub-
section (1) of Section 3, does not apply to him,
question of punishing the person concerned in
the transaction under sub-section (3) thereof or
the question of acquiring the property
concerned in the transaction under Section 5,
can never arise, as otherwise the exemption
granted under Section 3(2) would become
redundant. What we have said of the person
and the property concerned in sub-section (2)
of Section 3 in relation to non-applicability of
Section 3(3) and Section 5 shall equally hold
good for non-applicability of the provisions of
sub-sections (1) and (2) of Section 4 in the
matter of filing of the suit or taking up the
defence for the selfsame reason. Further, we
find it diffi cult to hold that a person permitted
to purchase a property in the name of his wife
or unmarried daughter under sub-section (2) of
Section 3 notwithstanding the prohibition to
enter into a Benami transaction contained in
sub-section (1) of Section 3 cannot enforce his
 42 O.S.No.6922 of 2000

rights arising therefrom, for to hold so would

amount to holding that the statute which
allows creation of rights by a Benami
transaction also prohibits the enforcement of
such rights, a contradiction which can never be
attributed to a statute. If that be so, there can
be no valid reason to deny to a person,
enforcement of his rights validly acquired even
in the past by purchase of property in the
name of his wife or unmarried daughter, by
making applicable the prohibition contained in
respect of filing of suits or taking up of
defences imposed in respect of Benami
transactions in general by sub- sections (1) and
(2) of Section 4 of the Act. But, it has to be
made clear that when a suit is filed or defence
is taken in respect of such Benami transaction
involving purchase of property by any person in
the name of his wife or unmarried daughter, he
cannot succeed in such suit or defence unless
he proves that the property although
purchased in the name of his wife or
unmarried daughter, the same had not
been purchased for the benefit of either
 43 O.S.No.6922 of 2000

the wife or the unmarried daughter, as

the case may be, because of the statutory
presumption contained in sub-section (2)
of Section 3 that unless a contrary is
proved that the purchase of property by
the person in the name of his wife or his
unmarried daughter, as the case may be,
was for her benefit.

22. In the Judgment, the Hon’ble High Court has

held that as per the judgment of Apex Court in case of

Nanda kishore V/s. Sushila Mehra & held that the bar

under Section 4(1) and 4(2) of Benami Transaction

(prohibition) Act is not applicable to the property

purchased in the name of person’s wife or his

unmarried daughter, subject to the presumption that

property was purchased for the benefit of wife and

unmarried daughter. It is clear from provisions of

Section 3, 4(1) and 4(2) that if any property is

purchased in the name of person’s wife or his

 44 O.S.No.6922 of 2000

unmarried daughter, the prohibition contained in the

Act is not applicable but, it is to be presumed that it is

for the benefit of wife and unmarried daughter unless

he proves that property though purchased in the name

of his wife or unmarried daughter, same had not been

purchased for the benefit of wife or unmarried

daughter. So law presumes that the property is even if

purchased by Doddamuniyappa in the name of 1 st

defendant, it is for her benefit and not for the benefit of

entire family. No evidence is adduced by plaintiff to

show that intention behind the purchase is for the

benefit of entire family. Except interested say of

plaintiff and pleading made by other defendants no oral

or documentary evidence is forthcoming in this regard.

23. Apart from this, as per Section 14 of Hindu

Succession Act, any property purchased by or in the

name of female member of the family is considered as

 45 O.S.No.6922 of 2000

her self-acquired property. The Hon’ble High Court of

Karnataka in Vijayakumar Vs. Vanajakshi reported in

Laws (KAR) 2021-12-34 has held that property

purchased in the name of wife is a self-acquired

property under provisions of Section 14 of Hindu

Succession Act. So, in the absence of any material to

show that property was purchased for the benefit of

entire family, this court cannot hold that the property is

the joint family property of micro family of plaintiff and

defendant No.1 to 6 only. The presumption available

under Section 14 of Hindu Succession Act and under

Section 3 & 4 of Benami Transaction (Prohibition) Act

also makes it clear that when property is purchased in

the name of wife then it is for the benefit of wife and as

such, it is treated as her separate property. If the age

of plaintiff and defendant No.2 to 6 are considered as

mentioned in the plaint, then in year 1977 they are 09-

17 years old and it cannot be held that they have also

 46 O.S.No.6922 of 2000

contributed money for purchase of suit property or

property is purchased by the family from joint efforts.

Therefore, in my considered opinion the plaintiff has

failed to establish that suit property is the joint family

property of plaintiff and defendant No.1 to 6. Per

contra, with presumptions available in favour of 1 st

defendant, the property is required to be treated as

separate property of defendant. Accordingly, Issue

No.1 is answered in the Negative and Issue No.2 is

answered in the Affi rmative.

24. Additional Issue No.1 and 2 framed on

07.07.2010:- That, these two issues are framed with

respect to validity of Sale Deed dated 29.09.2000-

Ex.P.7/ Ex.D.4 and whether it is binding upon the

plaintiff or not. The plaintiff has challenged Sale Deed

dated 29.09.2000-Ex.P.7/ Ex.D.4 stating that same is

outcome of fraud, and misrepresentation. The plaintiff

 47 O.S.No.6922 of 2000

has claimed that the Sale Deed dated 29.09.2000-

Ex.P.7/ Ex.D.4 is void as it was obtained by playing

fraud and misrepresentation on 1 st defendant, no

consideration amount is paid to the 1 st defendant,

defendant No.1 has executed the Sale Deed without

knowing the contents of the document and sale is void

as defendant No.1 had no independent right over the

suit schedule property.

25. Contention regarding right of defendant

No.1 to execute the Sale Deed. While answering

issue No.1 and 2 I have concluded that , suit property

was purchased in the name of 1 st defendant and it is

the self-acquired property of 1 st defendant as per

Section 14 of Hindu Succession Act and as per proviso

of Section 4 to Benami Transaction (Prohibition) Act it

is to be considered as purchased for the benefit of

defendant No.1 Narayanamma. Since, the property is a

 48 O.S.No.6922 of 2000

self-acquired property and separate property of

defendant No.1 Narayanamma, she had every right to

alienate the property and plaintiff, defendant No. 2 to

6 are not having any right to question the same.

Therefore, the contention of the plaintiff that since 1 st

defendant had no authority to sell the property, sale is

void does not arise for consideration.

26. The contention regarding capacity of

defendant No.1 to execute the Sale Deed dated

29.09.2000-Ex.P.7/ Ex.D.4. The plaintiff as well as

6 th defendant have contended that the 1 st defendant

was not mentally fit to execute the document as she

was admitted to NIMHANS Bangalore and has been

advised to take medicines. It is important to note that

the plaintiff has produced some document which shows

that the defendant No.1 has taken treatment in

NIMHANS. The Ex.P.32 the case dairy and prescription,

 49 O.S.No.6922 of 2000

it can be seen that Narayanamma was admitted to the

NIMHANS and she has been discharged in the year

1992 only. It is seen from the discharge summary that

she was depressed and a medication was prescribed.

But it does not show that Def.No1-Narayanamma was

not in fit state of mind in the year 2000. It is

important to note that Narayanamma filed RFA No.137

of 2000 and the Hon’ble High Court has allowed that

RFA, thereafter she appeared before this court filed

written statement and also filed application for change

of advocate and as such, one cannot say that Def.No1-

Narayanamma was mentally unfit when she executed

Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4. It cannot

be said that Def.No.1 Narayanamma was not in fit state

of mental condition and she was incapable of knowing

the consequences or understanding the document

which she executed. Apart from this, the plaintiff has

produced Ex.P.11 and P.12 registered Partition deed

 50 O.S.No.6922 of 2000

dated 03.12.2002. In Ex.P.11 Def.No.1 Narayanamma

represented entire branch of her husband

Doddamuniyappa-plaintiff and defendant No.2 to 6. As

per Ex-P11 there was partition in respect of family

property of the joint family of Doddamuniyappa & his

brothers. Thereafter, on the same day plaintiff

defendant No.2 and Narayanamma-1st defendant got

divided the properties allotted to the branch of

Doddamuniyappa as per Ex.P.11 and the properties

have been partitioned as per Ex.P.12. The Partition

deeds executed on 03.12.2002 and same is binding

upon the parties to the suit. When Narayanamma was

sound state of mind in the year 2002 to represent

branch of plaintiff & def.No.2 to 6, one cannot say that

she was not mentally fit as on the date of execution of

Sale Deed. Therefore, in my considered opinion the

contentions raised on behalf of plaintiff and defendant

No.6 that Def.No.1 Narayanamma was not in state

 51 O.S.No.6922 of 2000

condition of mind to execute the Sale Deed and

hence, same is void cannot be accepted. In my

considered opinion Def.No.1 -Narayanamma was

mentally fit since she has participated in the

proceedings of this suit, she has filed RFA before

Hon’ble High Court of Karnataka and she has also

executed registered document after execution of the

disputed Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4.

Therefore, in my considered opinion the contention that

due to unstable mental status of defendant No.1 Sale

Deed is void cannot be accepted and liable to be

rejected.

27. Contention regarding Fraud &

misrepresentation. The plaintiff has alleged that

fraud has been committed on Def.No.1 Narayanamma

and as such, the Sale Deed is void. To appreciate this

contention the pleadings is not an accordance with

 52 O.S.No.6922 of 2000

Order VI. As per Order VI Rule 4 CPC the party has to

plead that when fraud is committed, who has

committed a fraud and the other details of fraud is

required to be pleaded. The ingredients necessary is

not pleaded. So, pleading is not in accordance with

Order VI Rule 4 of CPC. The plaintiff claimed that

Def.No.1 Narayanamma was not present when Sale

Deed is presented for registration and as such, it was

kept pending and Narayanamma was present on

17.10.2000 then only the Sale Deed has been

registered which shows that Def.No.1 Narayanamma

was not at all present when Ex.D.4 original Sale Deed

was produced for registration. I have perused Ex.D.4

original Sale Deed in detail. The Sale Deed has been

presented on 29.09.2000 by defendant No.7. As per

Section 32 of Registration Act every document to be

registered under the provision of Registration Act

except cases mentioned in Section 31, 88 and 89

 53 O.S.No.6922 of 2000

whether such registration be compulsory or optional,

shall be presented at the proper registration offi ce by

person executing or claiming under the same. The

defendant No.7 and 8 are claiming under the document

i.e., Sale Deed dated 29.09.2000-Ex.P.7/ Ex.D.4 and as

such, as per Section 32 they can present the same for

registration. So, presentation of sale deed by

defendant No.7 for registration cannot be considered as

one of the circumstances which will lead to the

inference that fraud has been played of def.No.1.

28. As per Section 34 of Registration Act when a

document is presented for registration, the registering

authority shall (a) enquire whether or not such

document was executed by the persons by whom it

purports to have been executed; (b) satisfy himself as

to the identity of the persons appearing before him and

alleging that they have executed the document;

 54 O.S.No.6922 of 2000

and (c) in the case of any person appearing as a

representative, assign or agent, satisfy himself of the

right of such person so to appear. Thereafter, only he

has to register the document by holding in inquiry. In

this case, the endorsement made on the Ex.D.4 does

not show that executant was not present when

document was presented for registration nor it is stated

that executant has not admitted the execution of

document. In Ex.D.4 Sale Deed it is mentioned that

the registration is kept pending on 29.09.2000. On

17.10.2000 it is stated that admission for registration

and on 17.10.2000 the document has been registered.

It is not mentioned in Ex.D.4 that on 17.10.2000

executant was present. It is to be noted that the Sale

Deed was executed on stamp paper of Rs.70,850/-.

As per the assessment of Sub-registrar the proper

stamp duty is Rs.72,969/-. There was a deficit stamp of

₹.1,950/- and same was paid in State Bank of Patiala on

 55 O.S.No.6922 of 2000

29.09.2000, the Sub-registrar has endorsed the same

stating that ₹.1,950/- being deficit/ proper stamp duty

has been recovered/ credited to Bank/ treasury vide

Challan No.453417 dated 29.09.2000 by Sri. R.

Umaprasad and Shashikala. This endorsement on the

last page of Ex.D.4 shows that the reason for not

registering the document on 29.09.2000 was a deficit/

proper stamp duty of Rs.1,950/- and not executant

being absent. Therefore, it cannot be said that as on

the date of execution of document and presentation of

documents for registration Def.No.1-Narayanamma was

not present. In fact, as per the endorsement appearing

on the 2 nd page of the Sale Deed Def.No.1-

Narayanamma was present on 29.09.2000 and she has

admitted that she has executed the Sale Deed.

Therefore, in my considered view the contention of the

plaintiff that Def.No.1-Narayanamma was not at all

 56 O.S.No.6922 of 2000

present when Sale Deed was presented for registration

does not have any force.

29. It is contended by plaintiff that Revanna who

is signatory to Ex.D.4 has taken Def.No.1-

Narayanamma for transferring the 00-06-00 of land in

favour of defendant No.6 and by misleading her that

she is executing the Sale Deed in favour of her

daughter defendant No.6, Ex.D.4 has been executed.

The plaintiff has not pleaded this aspect in the plaint.

Only theory is built in cross examination & during the

arguments. It is important to note that the Sale Deed

has been executed in favour of defendant No.6 with

respect to 10 guntas of land in the suit survey number

on 25.10.2000. Ex.D.28 is certified copy of Sale Deed

dated 25.10.2000 executed in favour of defendant No.6

by defendant No.1-Narayanamma. The plaintiff has not

challenged the Sale Deed dated 25.10.2000 nor

 57 O.S.No.6922 of 2000

Narayanamma during her lifetime has challenged Sale

Deed dated 25.10.2000. The Sale Deed was presented

on 25.10.2000 only and same is registered on

25.10.2000. So, one cannot come to the conclusion

that the Def.No.1-Narayanamma was present on

29.09.2000 or 17.10.2000 for execution of Sale Deed in

favour of her daughter and by misrepresenting that she

is executing the document in favour of her daughter,

Ex.D.4 is executed by Narayanamma in favour of

defendant No.7 and 8. Therefore, in my considered

opinion, when the date of document executed in favour

of defendant No.6 is different than that of one

mentioned in Ex.D.4, this court cannot hold that by

playing fraud and misrepresentation on defendant

No.1. The defendant No.7 and 8 and Revanna got

executed the Sale Deed.

 58 O.S.No.6922 of 2000

30. The defendant No.7 and 8 are not related to

Narayanamma-defendant No.1, so one cannot say that

she had trust over the defendant No.7 and 8 and she

has executed the document Ex.D.4 Sale Deed dated

29.09.2000 without verifying the contents of the same.

It is true that in Ex.D.4 Sale Deed is in English language

not known to Def.No.1-Narayanamma, and there is no

recital that the Sale Deed that document has been read

over and explained to Def.No.1-Narayanamma.

However, in the Ex.D.4 Sub-Registrar has made an

endorsement that he has explained the document to

executant Def.No.1-Narayanamma and she has

admitted the same. The endorsement is made while

discharging offi cial duty and court shall presumed that

Sub-registrar being Government servant has carried

out his duties in accordance with law. So, Sub-

Registrar has explained the contents of the document

which is presented for registration and Narayanamma-

 59 O.S.No.6922 of 2000

1st defendant has admitted that she has executed the

Sale Deed. Therefore, it cannot be held that the Sale

Deed is outcome of fraud and undue influence. There

is an allegation against one of the witness M. Revanna

stating that he was the agreement holder of the

schedule property and has played fraud and taken a

signature of defendant No.1 on the Sale Deed without

there being the intention to sell the property. The said

contention is not proved. Though xerox copy of the

Agreement of sale dated 04.06.2000 was produced,

same is not marked. This court cannot consider the

Agreement of sale dated 04.06.2000 since the same is

not proved by plaintiff. Even marking of xerox copy

was rejected by this court as it is a xerox copy which

has been upheld by Hon’ble High Court of Karnataka in

Writ Petition No.23661 of 2023. The Hon’ble High court

has clearly held that Agreement of sale dated

04.06.2000 is not mentioned in the plaint nor a

 60 O.S.No.6922 of 2000

foundation is laid to lead secondary evidence. Plaintiff

being not party to Sale agreement dated 04.06.2000,

which is being in between Defendant No.7 & M.

Revanna, the agreement is irrelevant and as such,

rejection was proper. So, the Agreement of sale dated

04.06.2000 which is not proved in accordance with law

cannot be considered to say that M.Revanna was the

Agreement holder and at his instigation defendant No.1

has signed the Sale Deed. Apart from this original title

deed i.e., 19.05.1977 is handed over to the defendant

No.7 & 8 which also shows that Def.No.1 by

understanding the effect of document which is

executing has executed the sale deed. No explanation

is given by plaintiff how defendant No.7 & 8 are able

to secure original title deeds. That apart the defendant

No.1 in the written statement has mentioned that she

has sold the property to defendant No.3 & 4 of OS

No.7393 of 2003 and during her life time she has not
 61 O.S.No.6922 of 2000

challenged the sale deed stating that document has

been got executed by playing fraud, misrepresentation

and undue influence. From the available evidence, the

plaintiff has not proved that sale deed has been got

executed by playing fraud upon the defendant No.1.

31. Contention Sale Deed is void for want of

consideration. The learned counsel for plaintiff has

argued that in the cross examination defendant No.9

and DW.1 have clearly stated that sale consideration is

paid through cheque but, no account extract is

produced and in the Sale Deed it is mentioned that sale

consideration is paid by cash. So, it is contended that

in the absence of proof of passing of sale consideration

amount, the Sale Deed dated 29.09.2000 is void. It is

true that the Sale Deed without consideration is void. In

the Ex.D.2 it is mentioned that the Sale Deed is

executed for consideration amount of ₹.4,80,000/-. It is

 62 O.S.No.6922 of 2000

also mentioned that ₹.4,80,000/- was paid to def.No.1-

Narayanamma before the witnesses at the time of

registration. It is not mentioned that whether it is paid

in cash or paid through bank account. But, in the Sale

Deed it is mentioned that the sale consideration

amount is paid to Narayanamma. 1 st defendant had

never denied that she has not received consideration

amount under Ex.D.4 Sale Deed. Def.No.1-

Narayanamma even after sale of property filed RFA,

filed written statement and also participated in the

proceedings of this suit. She never stated that sale

consideration amount is not paid to her. Even if sale

consideration amount is not paid, the remedy is to file

a suit for recovery of sale consideration. So, when the

executant of document has not denied the execution,

executant of document has not denied receipt of

consideration amount, it cannot be said that the

consideration amount is not paid under the Sale Deed

 63 O.S.No.6922 of 2000

and as such, Sale Deed is void. So, it cannot be said

that the sale is void because same is not supported by

consideration. Name of purchasers has been entered

in the RTC pertaining to suit schedule property in the

year 2001 only as per MR.No.7/2001 as could be seen

from the RTC pertaining to the suit schedule property.

The plaintiff or Def.No.1 Narayanamma have not

objected for change of katha stating that the property

was not sold to defendant No.7 and 8. Katha has been

changed in the year 2002 only and in the year 2003

when suit was remanded defendant No.1 has filed

written statement stating that she sold the some of

the properties. In written statement filed the

defendant No.1 has clearly stated that the 2 nd

defendant by filing suit at O.S.No.7393 of 2003 is

interfering with possession of defendant No.3 and 4 of

that suit. Ex.D.1 the plaint copy of O.S.No.7393 of

2003 shows that defendant No.3 and 4 of O.S.No.7393

 64 O.S.No.6922 of 2000

of 2003 are Umaprasad and Shashikala who are

defendant No.7 and 8 in the suit. So, Def.No.1-

Narayanamma has clearly stated that defendant No.7

and 8 are the purchasers of the property and she has

sold the property to them. When executant of

document herself has admitted in the judicial

proceedings, this court cannot hold that Sale Deed is

outcome of fraud, undue influence and

misrepresentation. The learned counsel for plaintiff

has argued that the counsel appearing for the

defendant No.1 Narayanamma was brother of

defendant No.7 and as such, as per the instructions of

his brothers written statement is drafted. It is

important to note here that the advocate appearing for

the defendant No.1 who is the brother of defendant

No.7 and later on he was examined as DW.1 as GPA

holder. DW.1 has clearly deposed that as per the

instructions given by Narayanamma only he has

 65 O.S.No.6922 of 2000

drafted written statement. There is no allegations that

DW.1 was present when Sale Deed was executed by

Def.No.1-Narayanamma and he is part of conspiracy of

execution of Sale Deed. In the pleadings there is no

allegation against DW.1. That apart, DW.1 retired from

the suit and Def.No.1-Narayanamma had filed

applications for appointment of a lawyer as DW.1 is not

protecting her interest. Thereafter, one Jayaprakash

advocate appeared for defendant No.1 and he has not

filed any application for striking of pleadings filed by

defendant No.1 through her previous advocate who was

brother of defendant No.7, nor defendant No.1 has filed

additional written statement stating that the earlier

admissions made in the written statement is not

correct. So, this court cannot hold that the admissions

made in the pleadings is not correct, though verifying

affi davit is not available in the file, at the time of filing

of application for change of advocate, Def.No.1-

 66 O.S.No.6922 of 2000

Narayanamma had filed affi davit stating that she has

already filed written statement in this suit, which shows

that written statement was filed by her in this suit.

Therefore, in my considered opinion executant of the

document has admitted the execution of the document

and has not pleaded fraud, undue influence coercion

and non-payment of consideration amount. Therefore,

this court cannot hold that the defendant No.7 and 8

playing fraud upon Def.No.1-Narayanamma, have got

executed the Sale Deed. Therefore, in my considered

view the Sale Deed dated 29.09.2000 is legal and valid

in all respect. Apart from this, registered document are

having presumptive value in respect of due execution

and validity of the document. The evidence adduced

by the plaintiff is not suffi cient to say that the Sale

Deed is null and void document as same is executed

by playing fraud upon the executant Narayanamma.

Hence, in my considered view the Sale Deed dated

 67 O.S.No.6922 of 2000

29.09.2000 is legal and valid in all respect. Since,

defendant No.1 had absolute right over the property

and she has executed Sale Deed in favour of defendant

No.7 and 8, the Sale Deed is binding upon the plaintiff

as 1 st defendant had authority to execute the Sale

Deed. Accordingly, additional Issue No.1 and 2 are

answered in the Negative.

32. Additional issue No.3 framed on

15.07.2011:- defendant No.7 and 8 have claimed

that suit is barred by limitation. The defendant No.7

and 8 claimed that since the relief of declaration is not

sought within 3 years from the date of execution of

Sale Deed, the suit is barred by limitation. It is

important to note that at the first instance the

purchasers were not parties to the suit and same has

been decreed. Thereafter, the executant of document

has challenged the judgment & decree and after

 68 O.S.No.6922 of 2000

remand the defendants were impleaded. The

amendment goes back to date of presentation of the

suit. So, when amendment is made challenging the

execution of document it relate back to the date of the

filing of the suit and as such, it cannot be said that the

suit is barred by limitation. Therefore, there is no force

in the contention of the defendant No.7 & 8 that suit is

barred by limitation. Accordingly, this issue answered

in the Negative.

33. Issue No.4:- The issue is with respect of

suit being bad for non-joinder of necessary

parties. This issue is framed regarding contention

raised by 1 st defendant that suit is bad for non-joinder

of necessary parties as daughters of Narayanamma

were not impleaded. However, after filing of written

statement and after remand of suit the daughters of

Def.No.1 Narayanamma were impleaded as defendant

 69 O.S.No.6922 of 2000

No.3 to 6 and as such, this issue does not survive for

consideration. Accordingly, I answer this issue holding

that all the necessary parties who are required to be

impleaded are party to this suit and suit is not bad for

non-joinder of necessary parties.

34. Issue No.3:- This issue is framed regarding

entitlement of relief of partition and share of plaintiff

herein. While answering issue No.1 and 2, I have

concluded that the suit property is the separate

property of defendant No.1. Sy.No.358 of Kalkere

Village is totally measuring 01-19-00, Kharab 00-02-00.

As per Ex.D.4 Sale Deed an area of 01-03-00 is sold in

favour of defendant No.7 and 8. As per Ex.D.28 an

area of 00-10-00 was sold in favour of defendant No.6

herein. So, totally 01-013-00 was sold by defendant

No.1 and what was remaining was 00-04-00 of land and

00-02-00 Kh i.e., totally 00-06-00. In the Sale Deed

 70 O.S.No.6922 of 2000

Ex.D.28 it is mentioned that towards north of the

property sold to defendant No.6 that 00-06-00 was

remaining. It is important to note that on 15.12.2001

the property bearing No.358 katha No.358 of Kalkere

measuring 44 X 55 feet was gifted to the plaintiff

D.Munibeerappa. The document is denied but it is a

registered document executed by Def.No.1-

Narayanamma. In the said deed it is clearly mentioned

that towards south of the property gifted property of

Kanthamma who is defendant No.6, is situated. The

Gift deed has been attested by defendant No.2

Munipoojappa. So, one cannot say that this document

which is in favour of plaintiff and attested by defendant

No.2, executed by Def.No.1-Narayanamma is a

fraudulent document. No action is taken by plaintiff till

today challenging this Gift deed. So, remaining

property which was in Sy.No.358 is also transferred to

plaintiff herein. Hence, in my considered opinion in

 71 O.S.No.6922 of 2000

Sy.No.358 nothing is left as defendant No.1 has

transferred/ alienated the same during her lifetime

only. Therefore, in my considered view the plaintiff is

not entitle for relief of partition & separate possession

of the suit schedule property. Since, plaintiff is not

entitle for relief of partition and separate possession

and in my considered opinion this issue is required to

be answered in the Negative.

35. Additional Issue No.3 dated 07.07.2010

and issue No.5:- While answering issue No.1 to 4

and additional issue No.1 and 2 and additional issue

No.3 framed on 15.07.2011, I have concluded that suit

schedule property is the self-acquired property of 1 st

defendant and she has sold the same in favour of

defendant No.7 and 8 as per Sale Deed dated

22.09.2000, in favour of defendant No.6 as per Sale

Deed dated 25.10.2000 and 4 gunta in favour of

 72 O.S.No.6922 of 2000

plaintiff by gifting the same as per Ex.P.27. Therefore,

there is a nothing available to be partitioned. Hence,

relief of partition claimed by plaintiff is not at all

permissible. The plaintiff has sought for relief of

declaration that Sale Deed dated 29.09.2000-Ex.P.7/

Ex.D.4 is null and void and not binding upon the

plaintiff. While answering additional issue No.1 and 2, I

have concluded that Sale Deed is legal and valid and

plaintiff has failed to show that same is obtained by

playing fraud. Therefore, in my considered view the

plaintiff is not entitled for the relief claimed. The

decisions cited is not at all applicable to the case on

hand as executant of the document has not denied the

execution during the pendency of the suit or earlier.

Therefore, in my considered view, plaintiff is not entitle

for relief claimed, accordingly, I answered additional

issue No.3 and issue No.5 in the Negative holding that

plaintiff is not entitle for relief claimed.

 73 O.S.No.6922 of 2000

36. Issue No.6 : In view of the discussions and

conclusion arrived at above issues, the suit is liable to

be dismissed. Considering the relationship of the

parties, remand of case awarding of cost is not

necessary. Accordingly, I proceed to pass the

following:-

ORDER

The suit of the plaintiff is dismissed.

Parties to bear their own cost.

(Dictated to the Stenographer Grade-III, transcript thereof

corrected, signed and then pronounced by me, in open Court, on
this the 15th day of January, 2025.)

(BHAT MANJUNATH NARAYAN)

XLIII Addl. City Civil & Sessions Judge,
Bengaluru

ANNEXURE
I. List of witnesses examined on behalf of plaintiff:-
P.W.1 D. Munibeerappa
 74 O.S.No.6922 of 2000

II. List of witnesses examined on behalf of defendants:-

D.W.1 R. Virupaksha
D.W.2 B.S. Nanda

III. List of documents exhibited on behalf of plaintiff:-

Ex.P.1 Geneology tree

Ex.P.2 RTC
Ex.P.3 Mutation extract
Ex.P.4 to 6 Tax paid receipts
Ex.P.7 C/c of Sale deed dated 29.09.2000
Ex.P.8 The death certificate of Plaintiff's
father by name B.Muniyappa.
Ex.P.9 The death certificate of defendant No.1
Narayanamma.
Ex.P.10 Certified copy the judgment and
decree dated 01.09.2003.
Ex.P.11 Registered partition deed dated
03.12.2002.
Ex.P.12 Another registered partition deed
dated 03.12.2002.
Ex.P.13 Legal notice dated 29.08.2022/2023.
Ex.P.14 and Two postal receipts.
Ex.P.14(a)
Ex.P.15 Postal track consignment.
Ex.P.16 Unserved postal cover.
Ex.P.16(a) The legal notice found in Ex.P.16 postal
cover.
 75 O.S.No.6922 of 2000

Ex.P.17 Digitally signed registered sale

agreement dated 27.02.2023.
Ex.P.18 The genealogical tree issued by the
village accountant.
Ex.P.19 Certified copy of the registered sale
deed dated 19.05.1977.
Ex.P.19(a) Typed copy of the sale deed dated
19.05.1977.
Ex.P.20 Identity card of the father of the
Plaintiff.
Ex.P.21 Certified copy of the order dated
13.12.2005 passed in RFA
No.137/2004.
Ex.P.22 Certified copy of the representation
submitted by the Plaintiff to the Joint
Director of Urban Planning Authority.
Ex.P.23 The reminder dated 06.04.2023 issued
by District Registrar.
Ex.P.24 to 7 photographs.
Ex.P.30
Ex.P.31 C.D pertaining to the 7 photographs.
Ex.P.32 Original discharge summary.
Ex.P.33 One RTC extract pertaining to Survey
No.358/1.
Ex.P.34 The digitally certified copy of gift deed
dated:12.04.2023.
Ex.P.35 The RPAD cover addressed to
Smt.Renukha Devi A.S.
Ex.P.36 Reply notice dtd:01.10.2023
03
 76 O.S.No.6922 of 2000

Ex.P.37 The I.A.No.6 dated 30.10.2023

IV List of documents exhibited on behalf of defendants:

Ex.D.1 Copy of plaint in O.S.No.7393 of 2003

Ex.D.2 The notarized SPA
dated:27/28.11.2023 executed by
defendant No.7 in my favour.
Ex.D.3 Original registered sale deed
dated:19.05.1977 executed by
Chinnakka in favour of defendant
No.1 Narayanamma.
Ex.D.4 Original sale deed dated:29.09.2000
executed by defendant No.1
Narayanamma in favour of defendant
No.7 and 8.
Ex.D.5 The declaration affidavit
dated:29.09.2000.
Ex.D.6 Certified copy of the conversion order
dated:18.03.2023.
Ex.D.7 Certified copy of the survey sketch.
Ex.D.8 Certified copy of the Hissa Tippani.
Ex.D.9 Certified copy of the Pakka Book.
Ex.D.10 Certified copy of the Aakaar Band
register.
Ex.D.11 The register extract.
Ex.D.12 Certified copy of the order passed by
Deputy commissioner for Inams in
case No.163.
 77 O.S.No.6922 of 2000

Ex.D.13 The endorsement dated:04.03.2023

and and 80.03.2023 issued by Tahasildar
Ex.D.14 and Assistant commissioner
respectively.
Ex.D.15 to 4 Certified copies of Manual RTC
Ex.D.18 extracts.
Ex.D.19 22 RTC extracts pertaining to
Sy.No.358/2 collectively marked.
Ex.D.20 Certified copies of 4 RTC extracts
collectively marked.
Ex.D.21 2 Certified copies of the mutation
and register extract.
Ex.D.22
Ex.D.23 2 E.C
and
Ex.D.24
Ex.D.25 Certified copy of the judgment and
decree dated:30.01.2019 passed in
O.S.7393/2003.
Ex.D.26 Certified copy of the written
statement filed in O.S. 7393/2003.
Ex.D.27 C/c of Gift deed dated 15.12.2001
Ex.D.28 Sale deed dated 25.10.2000
Ex.D.29 The original Special Power of Attorney
dated 01.04.2024

(BHAT MANJUNATH NARAYAN)

XLIII Addl. City Civil & Sessions Judge,
Bengaluru
78 O.S.No.6922 of 2000
79 O.S.No.6922 of 2000