Dismissed

Shri G v. Gopalakrishna v Shri G Venkatappa

Karnataka HC13 Jan 2021RFA/590/2012

Case brief

AI extract

What is this about?

This judgment rejects two appeals filed regarding property disputes over a joint family house. The High Court upheld the trial court's decision to declare a prior sale deed void and grant an equal one-seventh share of the property to each of the first defendant's seven children, dismissing the claim for a half-share. No legal principles were elaborated beyond afferring to the trial court's finding

What did the court decide?

Both appeals rejected; trial court order granting equal shares to seven children confirmed.

Shri G v Gopalakrishna Vs Shri G Venkatappa — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.F.A.No.591 OF 2012 (DEC/PAR)

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C/W

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R.F.A. No.590 OF 2012

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In RFA No.591/2012

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BETWEEN:

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G.V.Gopalakrishna S/o. G.Venkatappa Aged about 60 years Residing at No.349 10^th ‘B’ Main, 3^rd Block Jayanagar Bangalore – 560 011

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...Appellant

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(By Sri.V.B.Shiva Kumar, Advocate)

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AND:

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G.Venkatappa Since deceased by LRs

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Smt.Padmakshi

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W/o. R.Sreenivasa R/at No.173/29/01, 25^th Cross 2^nd B Main, 6^th Block

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Jayanagar Bangalore – 560 082

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2.	Smt. Kamalakshinath W/o. Kashinath G R/at No.1560, East End Road 9^thBlock, Jayanagar Bangalore – 560 069
3.	Smt. G.V.Neelakshi W/o. Karunakara R/at No.544, 32^ndCross 4^thBlock, Jayanagar Bangalore – 560 011
4.	Smt. G.V.Lakshmi
	W/o. Purushotham Major R/at No.349, Nanda Gokula 3^rdBlock, Jayanagar Bangalore – 560 011
5.	R.Radhakrishna S/o. G.Venkatappa Aged about 68 years
	R/at. No.204/7, 2^ndBlock Sreeram Road, T.R.Nagar
	Bangalore – 560 028
6.	G.V.Muralikrishna
	S/o. late G.Venkatappa C/o. M.Seenappa Major by age R/at. No.U-7, 4^thcross Mission Road
	Bangalore – 560 027 …Respondents

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(By Sri.M.Shivaprakash, Advocate for R1 to R5; Smt.M.L.Srimathi, Advocate for R6)

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This RFA is filed under Section 96 of CPC, against the Judgment and Decree dated: 23.02.2012 passed in O.S.No.4212/1992 on the file of the XV-Addl. City Civil & Sessions Judge, Bangalore, partly decreeing the suit for declaration, partition and separate possession.

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In RFA No.590/2012

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BETWEEN:

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Shri.G.V.Gopalakrishna S/o. G.Venkatappa Aged about 60 years Residing at No.349, Upstairs 10^th ‘B’ Main, 3^rd Block Jayanagar Bangalore – 560 011

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...Appellant

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(By Sri.V.B.Shiva Kumar, Advocate)

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AND:

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Shri.G.Venkatappa Since deceased by his LRs:

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a) Smt.Padmakshi W/o R.Srinivasa R/at No.173/29/01 25^th Cross, 2^nd ‘B’ Main 6^th Block, Jayanagar Bangalore-560 082.

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b) Smt. Kamalakshinath W/o. Kashinath G R/at No.1560, East End Road 9^th Block, Jayanagar Bangalore – 560 069

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c). Smt. G.V.Neelakshi W/o. Karunakara R/at No.544, 32^nd Cross 4^th Block, Jayanagar Bangalore – 560 011 d). Smt. G.V.Lakshmi W/o. Purushotham R/at No.349, Nanda Gokula 3^rd Block, Jayanagar Bangalore – 560 011

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Shri.G.V.Muralikrishna S/o Venkatappa R/at No.349, 10^th ‘B’ Main Road 3^rd Block, Jayanagar Bangalore-560 011.

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Shri.R.Radhakrishna S/o late.G.Venkatappa R/at No…, Sreerama Road Thygaraja Nagar Bangalore-560 028.

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…Respondents

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(By Sri.M.Shivaprakash, Advocate for R1(A-D) and R3; Smt.M.L.Srimathi, Advocate for R2)

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This appeal is filed under Section 96(1) of CPC, against the judgment and decree dated:23.02.2012 passed in O.S.No.3889/1990 on the file of the XV-Addl. City Civil Judge, Bangalore City, dismissing the suit for declaration and possession.

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These RFAs’ Coming on for further dictation this day, the Court delivered the following:

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JUDGMENT

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These two appeals are directed against the judgment and decree passed in O.S.No.4212/1992 and O.S.No.3889/1990, whereby the trial Court partly decreed both the suits on 23.02.2012. Being aggrieved by the said judgment and decree passed in both the suits, the respective parties have preferred above appeals.

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Since both the cases are connected to same subject matter and the parties, they are taken up together for final disposal.

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In order to avoid confusion and overlapping, the parties are referred to as per their rankings as held by them before the trial court.

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For clarification as the suits are assigned different numbers, the facts pleaded by the parties are mentioned separately: In O.S.No.3889/1990, the plaintiff one G.V.Gopalakrishna S/o. G.Venkatappa filed the suit against the defendants including defendant who is his

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father, for the relief of declaration, declaring that the plaintiff has got half share in the schedule property and for possession of the same and further to declare that the sale deed dated 29.08.1987 executed by defendant No.1 in favour of second defendant is not binding on the plaintiff, contending that plaintiff and defendant No.2 are the sons of first defendant. The first defendant married in the year 1946 and his first wife died. Thereafter, he again married one Smt. Venkatalakshmamma in the year 1947. The plaintiff and second defendant are the sons of defendant through his second wife. First defendant’s wife Smt. Venkatalakshmamma also died in the year 1986. Defendant No.1 was working in Accountant General’s Office, Bengaluru, while he was in service, he purchased the schedule property bearing No.349, 10^th ‘B’ main, Jayanagar in the year 1955, after obtaining the loan from Karnataka Housing Co-operative Federation. Defendant No.1 took voluntary retirement in the year 1962 as he met with an accident. First defendant was getting a meager salary and after retirement, he joined as foreman in M.M.

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& Sons for salary of Rs.250/- per month and even the same was not sufficient to eke out the livelihood. Thereafter, the first defendant with the active assistance of the plaintiff started a family concern called ‘Nandagokula Milk Centre’ in the year 1964. During the year 1967, plaintiff and the first defendant started poultry form called ‘Swapnaloka Poultry Form’ and in the year 1974, plaintiff and defendant started a packing industry in partnership. In the year 1982, the plaintiff and first defendant started another poultry farm in the name of ‘Nango Poultry Farm’ at Kambathahalli, Gothigere Post, Bannerghatta Road, Bangalore. The plaintiff also purchased a matador in the year 1979 in the name of his mother after borrowing loan from Belagi Financiers and Vijaya Financiers. During the year 1980-1982, plaintiff was running a transport company by name Nandagokula Transport Tempo Service. He claims by his efforts and services family was able to run several concerns and acquired the properties and business. Out of the income derived from the said concerns, plaintiff has constructed the first floor in the site bearing No.349, as

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defendant No.1 had constructed a house only over the ground floor. Second defendant all along was a school going boy and he was not in a position to work to derive income.

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The claim of the plaintiff is that first defendant become paralytic in the year 1984. Thereafter, there was a family settlement among the plaintiff and defendant Nos.1 and 2 in respect of the schedule property and the same was consisted of ground and first floor. In the family settlement dated 29.06.1986, it was agreed between the plaintiff and defendant Nos.1 and 2 that plaintiff has to pay 30% of electricity charges and 25% of water charges and plaintiff has to live separately in the first floor of his house. Plaintiff was required to pay tax and he was also required to pay 50% of the house tax from 31.03.1986 and settlement was reduced into writing.

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According to the said agreement, plaintiff was required to discharge mortgage loan of Rs.75,000/- and the ground floor house has to be enjoyed by the second

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defendant and the first floor to be enjoyed by the plaintiff and both the plaintiff and second defendant will have equal rights over the said house property. The plaintiff further claims that in order to defeat rights of the plaintiff in respect of the family properties/schedule properties, defendant No.1 got executed the sale deed dated 29.08.1987 in favour of second defendant in respect of the suit schedule property for a consideration of Rs.3,50,000/- by misrepresenting and playing the fraud and also conspired with second defendant.

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The first defendant had no authority of law to execute the sale deed in favour of second defendant, when the plaintiff got a definite share in the schedule property. The said sale deed is neither valid nor binding on the plaintiff, as no consideration was passed by defendant No.2 to defendant No.1. The defendant No.2 was a student studying in B.V.Sc and was aged about 22 years at the time of alleged sale deed. As he was not an earning person, the question of accumulating Rs.3,50,000/- was

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totally not possible. It is only with a view to defeat the rights of plaintiff over the schedule property, the first defendant executed the sale deed in favour of second defendant without receiving any consideration. Therefore, transaction dated 29.08.1987 is null and void. The plaintiff further claims that he came to know that defendant No.2 was trying to sell the schedule property in favour of one H.S.Mahesh and H.N.Nataraj who have also entered into agreement with defendant No.2. Therefore, plaintiff filed a suit in O.S.No.5775/1989 before the City Civil Judge of Bengaluru, against defendant No.2 for permanent injunction. When the plaintiff demanded half(½) share in the suit schedule property, first defendant at the instigation of second defendant refused to give the share.

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Insofar as, present suit O.S.No.3889/1990, is concerned, the defendant No.1 is the father of plaintiff and defendant No.2 is the brother of plaintiff. They appeared in the suit and filed their written statement. They contended that the case of the plaintiff is not correct. He is not

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residing in schedule property. Recently he trespassed into the house and forcibly occupied the property. The other claims of the plaintiff regarding his efforts and starting the business and earning the property by the efforts of the plaintiff are denied.

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At this stage, it is necessary to clarify that

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what is stated above is pleadings of plaintiff. The plaintiff G.V.Gopalaskrishna and his father – G,Venkatappa who is now dead represented by LRs and the other suit in O.S.No.4212/1992 is a separate one i.e., filed by G.Venkatappa along with children Padmakshi, Kamalakshinath, Neelakshi, Lakshmi, Radhakrisha filed the suit against G.V.Gopalakrishna - plaintiff in the previous suit in O.S.No.3889/1990 and G.V.Muralikrishna.

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The facts in brief in O.S.No.4212/1992 are it is a suit for declaration against the defendants to declare that the sale deed dated 29.08.1987 executed by plaintiff – No.1-G.Venkatappa in favour of 2^nd defendant G.V.Muralikrishna in both the suits is void and not binding

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on the plaintiffs and sought for equitable relief of partition and separate possession of the plaintiffs who are all entitled for 1/7^th share each.

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In the context, the pleadings of the plaintiffG.V.Gopalakrishna in the earlier suit is almost the written statement in this case. So the plaintiffs in this case called the said property as property belonged to the entire family members and sale deed dated 29.08.1987 was executed without receiving the sale consideration in favour of second defendant-G.V.Muralikrishna duly registered before Sub-registrar, Jayanagar. The second defendant also has turned hostile. At the end of the day, the plaintiffs in O.S.No.4212/1992 claim that plaintiffs are entitled for equal share in the schedule property. The plaintiffs have succeeded in the suit property on the basis of death of first plaintiff on 29.07.1992. They are all the members of the Hindu Joint Family and there was no partition or severance of status among the parties in respect of properties and they have direct and subsisting interest of seven share.

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12. The learned trial judge on the basis of

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pleadings framed the following issues in each of the case:

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In O.S.No.3889/1990:

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“1. Whether plaintiff proves that on account of his efforts and services, the family of plaintiff and defendants acquired properties and run business?

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2. Whether plaintiff proves the family settlement dated 29.6.1986?

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3. Whether plaintiff proves that 2^nd defendant got sale deed dated 29/8/1987 from 1^st defendant by misrepresenting facts, playing fraud and coercion and that sale is not binding on him, null and void?

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4. Whether plaintiff is entitled for half share in suit property and separate possession of his share?

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5. Do the defendants prove that schedule property is the self acquisition of 1^st defendant?

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6. Do the defendants prove that suit is not properly valued and court fee paid is insufficient?

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7. What relief or order?

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In O.S.No.4212/1992:

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“1. Whether the plaintiff proves that the suit property belongs to him and the document executed by plaintiff No.1 in favour of defendant No.2 on 29/8/1987 came into in the circumstances stated in the plaint?

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2. Whether the suit as brought against the defendant, without specific relief of their legal character with respect to property is maintainable?

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3. Whether the defendant No.1 proves that the document is invalid and is improper and illegal?

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4. Whether the plaintiff proves cause of action for the suit?

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5. Whether the plaintiffs are entitled for the relief sought for?

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6. What order or decree?”

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Additional Issue:

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Whether each of the plaintiffs is entitled for 1/7 share from the suit schedule property?

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The learned trial judge was accommodated

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with the following oral and documentary evidence on behalf of each of the parties:

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In O.S.No.3889/1990 oral evidence of PW.1 – G.V.Gopalakrishna and documentary evidence of Exs.P1 to P72 were produced on behalf of plaintiff and on behalf of defendants, oral evidence of DW.1 – Padmakshi was adduced and defendants not produced any documents.

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In O.S.No.4212/1992, oral evidence of PW.1-Smt. Padmakshi and PW.2-Shanmugaiah and documentary evidence of Exs.P1 to P26 were produced on behalf of plaintiff and on behalf of defendants, oral evidence of DW.1 – G.V.Gopalakrishna and documentary evidence of Exs.D1 to D66 were produced.

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14. Upon conclusion of the trial, learned trial judge

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partly decreed. Against which, plaintiff has come in these appeals.

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15. Learned counsel Sri. V.B.Shivakumar

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appearing for the appellant in both the appeals arising out of O.S.No.3889/1990 and O.S.No.4212/1992 would submit that each and every facts narrated by them in respect of schedule property which is a Joint Hindu family property and each of the member is having a specific share, despite the sale deed stated to have been made in favour of second defendant and it is not binding on the family. Plaintiff – G.V.Venkatappa in O.S.No.4212/1992 was the propositus and fraud was played on him and sale deed was obtained by second defendant without paying any consideration. There was no hostility among father and children. The first defendant-G.Venkatappa in O.S.No.3889/1990 was believing in all the children likewise defendant No.2 and he has misused the circumstances, confidence, ill health and the helplessness of defendant

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No.1, and got the registered sale deed with regard to the entire house property in his name. Thus, the interest of the rest of the members of the joint family was submerged only in order to consolidate and covenanted it to be separate property of defendant No.1.

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All the plaintiffs and defendant in both the suits are the family members, namely, father, G.Venkatappa, wife dead who is Venkatalakshmamma. Children are: sons – G.V.Gopalkrishna, R.Radhakrishna, G.V.Muralikrishna and daughters: – Smt.Padmakshi, Smt.Kamalakshinath, Smt.G.V.Neelakshi & Smt.G.V.Lakshmi . Out of the above list of names, splitting of the plaintiffs and defendants in each of the case is as

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under:-

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In O.S.No.3889/1990 :-

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Plaintiff	–	G.V	.Gopalakrishna
Defendants	–	1.	G.Venkatappa
			Since dead by LRs.
		a)	Smt. Padmakshi
		b)	Smt.Kamalakshinath

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c) Smt.G.V.Neelakshi d) Smt. G.V.Lakshmi 2. G.V.Muralikrishna 3. R.Radhakrishna

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In O.S.No.42	12/19	92 :-
Plaintiffs	–	1.	G.Venkatappa
		2.	Smt. Padmakshi
		3.	Smt.Kamalakshinath
		4.	Smt.G.V.Neelakshi
		5.	Smt. G.V.Lakshmi
		6.	R.Radhakrishna
Defendants	–	1.	G.V.Gopalakrishna
		2.	G.V.Muralikrishna

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The point that has to be noted from the above list is that in the first suit – O.S.No.3889/1990, G.V.Muralikrishna was arrayed as defendant No.2. However, two years later, when the second suit - O.S.No.4212/1992 is filed by G.Venkatappa and others, the said G.V.Muralikrishna changes the camp and he has been arrayed as second defendant. Regard being had to the fact that the documents were stated to have been

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made under illegal circumstances, in favour of the said Muarlikrishna- defendant No.2.

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In respect of RFA.No.590/2012 is concerned, it

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is filed by the plaintiff – Sri G.V.Gopalakrishna in O.S.No.3889/1990. It is stated in the plaint that there was a settlement agreement executed by father of plaintiff namely Sri G.Venkatappa. As per the settlement agreement, the ground floor was allotted to defendant No.2 – Sri G.V.Muralikrishna and first floor was allotted to the plaintiff – Sri G.V.Gopalakrishna. Incidentally, on 29.08.1987 about a year afterwards, Sri G.Venkatappa executes the sale deed in respect of entire property in favour of defendant No.2 – Sri G.V.Muralikrishna.

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Insofar as RFA.No.590/2012 is concerned, it pertains to O.S.No.3889/1990 which was filed by the plaintiff – Sri G.V.Gopalakrishna s/o Sri G.Venkatappa. The prayer sought therein reads as under:

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(a) Set aside the judgment and decree dated 23.02.2012 in OS.No.3889/1990 passed by

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the XV Additional City Civil & Sessions Judge, Bangalore City, CCH-3;

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(b) Call for the records of the court below;

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(c) Allow the appeal, by setting aside the judgment and decree in O.S.NO.3889/1990;

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(d) Cost of the appeal.

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In respect of RFA.No.591/2012 is concerned, it is filed by defendant No.1- Sri G.V.Gopalakrishna and it pertains to O.S.No.4212/1992 which was filed by the plaintiffs – Sri G.Venkatappa, his daughters and son against his two sons. The prayer sought therein reads as under:

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(a) Set aside the judgment and decree dated 23.02.2012 passed by the XV Addl. City Civil & Sessions Judge (CCH-3), Bangalore City in OS.NO.4212/1992;

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(b) Call for the records of the courts below;

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(c) Allow the appeal by imposing cost, in the interest of justice and equity.

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The relief sought for declaring the sale deed dated 29.08.1987 is stated to have been executed by

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plaintiff No.1 - Sri G.Venkatappa in favour of defendant No.2 - Sri G.V.Muralikrishna as null and void and partition of the property granting share to each of the plaintiffs in both the properties are same, which is stated to be a property measuring 40 x 60 feet consisting of two floors.

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It is stated in O.S.No.3889/1990 that no doubt

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so many details of business being jointly, individually and starting first business are mentioned, so much apparently earning money is also stated. The texture of the suit looks like a partition of joint family property, but in reality neither it is a self acquired property, but only one portion, which is not disputed is the one which was earned by Sri

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G.Venkatappa.

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In order to avoid confusion, the following

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points are to be narrated in the following table:

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Sri G.V.Gopalakrishna s/o	O.S.No.3889/1990	On the file of XV Addl. City Civil &
Sri G.Venkatappa		Sessions Judge, Bangalore (CCH-3)
Sri G.Venkatappa & others	O.S.No.4212/1990	On the file of XV Addl. City Civil &

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Sessions Judge, Bangalore (CCH-3)

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The plaintiff – Sri G.V.Gopalakrishna s/o Sri G.Venkatappa filed a suit in O.S.No.3889/1990 on the file of XV Addl. City Civil and Sessions Judge, Bangalore (CCH-3), on 12.07.1990 for the relief of declaration declaring that the plaintiff has got half share in the suit schedule property and for possession of the same and further to declare that the sale deed dated 29.08.1987 executed by defendant No.1 in favour of defendant No.2 as not binding on the share of the plaintiff in the schedule property.

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24. The property mentioned in the schedule is only

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one house, which consists of ground floor and first floor as stated above. It is quite understandable to state that the plaintiff makes allegation against his brother defendant No.2- Sri G.V.Muralikrishna for trying to grab the entire property to the prejudice of entire members of the joint family. Incidentally, he claims half share in the property.

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Regard being had to the fact that according to him his family consisted of Sri G.Venkatapa father of Sri G.V.Gopalakrishna, Sri G.V.Muralikrishna and Sri R.Radhakrishna and has left out four daughters namely Smt. Padmakshi, Smt. Kamalakshinath, Smt. G.V.Neelakshi and Smt. G.V.Lakshmi, which goes to show that though he has made the other siblings as members, he claims half share, perhaps on the assumption that the partition effected between himself and his father in respect of the entire property and that half share to be given to him. The suit of the plaintiff for half share for declaring the sale deed dated 29.08.1987 came to be decreed as null and void. The certain incidents and dates are very much necessary to be mentioned for the appreciation of evidence.

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The family of Sri G.Venkatappa is stated to have been entered into a settlement deed, wherein the property of Sri G.Venkatappa was divided into two portions. As per the settlement, ground floor was allotted

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to the plaintiff - Sri G.V.Gopalakrsihna and first floor was allotted to Sri G.V.Muralikrishna. The sequence of the evidence starts from 29.06.1986, wherein the beneficiaries are two sons of Sri G.Venkatappa i.e., Sri G.V.Gopalakrsihna and Sri G.V.Muralikrishna and incidentally, the next incident goes against the first incident, wherein the registered sale deed dated 29.08.1987 was executed in respect of the entire property in favour of Sri G.V.Muralikrishna and on 04.07.1992 Sri G.Venkatappa filed a suit for cancellation of the sale deed dated 29.08.1987, wherein he urges that he never wanted to sell the entire property to Sri G.V.Muralikrishna to the prejudice of other children and no consideration was received. He also stated that if there was a partition, there should be division of property in accordance with the settlement agreement. It reveals that the ground floor was allotted to the plaintiff and first floor was allotted to defendant No.2. In other words, under the registered sale deed dated 29.08.1987 Sri G.Venkatapa executed an absolute sale deed in favour of defendant No.2. The suit in

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OS.No.4212/1992 was filed by Sri G.Venkatappa and others stating that he never had an intention to sell the entire property in favour of defendant No.2 and the same has to be cancelled. It is that suit where the sale deed is

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ordered to be cancelled. However, share is refused.

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At this stage, it is necessary to mention that OS.No.3889/1990 filed by Sri G.V.Gopalakrishna claiming half share in the suit schedule property came to be dismissed, wherein O.S.No.4212/1992 was partly decreed declaring that plaintiffs No.2 to 6 are entitled for 1/7^th share each in the suit schedule property. So also defendant Nos.1 and 2 are entitled for 1/7^th share each in the suit schedule property. Thus, it appears that there is no uniformity and unanimity in the family. Now the question arise with regard to agreement deed dated 29.06.1986, which is marked as Ex.P.70, wherein Sri G.Venkatappa allots the suit schedule property to his first and second sons namely Sri G.V.Gopalakrishna and Sri G.V.Muralikrishna. It is in this connection so many debts

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and payment of charges were asked to be complied with,

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but the fact remains that the other children of Sri G.Venkatappa namely Smt. Padmakshi, Smt. Kamalakshinath, Smt. G.V.Neelakshi, Smt. G.V.Lakshmi and Sri R.Radhakrishna were not given any share in the suit schedule property. It is to be remembered that a subsequent development has taken place where Sri G.Venkatappa died on 29.07.1992 and his wife has predeceased him. The operative portion of the order passed by trial court in O.S.No.3889/1990 read as under:

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ORDER

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“Suit of the plaintiff with regard to the claim of half share in the suit schedule property is dismissed.

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Suit of the plaintiff with regard to the relief of declaration of sale deed dated 29/8/1987 is decreed and it is declared that the sale deed dated 29.08.1987 executed by defendant No.1 in favour of defendant No.2 is null and void.

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Parties to bear their own costs.

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Draw the decree accordingly”.

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The trial Court upheld the rights of all the children of Sri G.Venkatappa in the suit schedule property. Regard being had to the fact that Sri G.Venkatappa is stated to have been dead, hence, the plaintiff-Sri G.V.Gopalakrishna could not succeed to get half share in the suit schedule property. On the other hand, he is one among seven children of Sri G.Venkatappa and he was made entitled for 1/7^th share and the sale deed stated to have been executed by Sri G.Venkatappa in favour of Sri G.V.Muralikrishna came to be set aside. It is to be remembered that Sri G.V.Muralikrishna claims that he has purchased the schedule property on 29.08.1987 for a sum of Rs.3,50,000/-. That sale deed was claimed to have been infected by fraud and mis-representation. Firstly, the daughters of Sri G.Venkatappa were not cared. According to Sri G.Venkatappa, the settlement deed did not happen. In the suit filed by Sri.G.V.Gopalakrishna, as stated above the sale deed dated 29.08.1987 was declared as null and void. The facts and the materials available disclose that the settlement deed was not acted upon. The first

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document of settlement deed is dated 29.06.1986, in principle, it is set aside by the second sale deed dated 29.08.1987. Another peculiar problem represented is that it is specifically not stated whether it is a suit for partition in the Joint Hindu family or it is a partition that is effected in the ancestral property, wherein the rights of daughters are also required to be considered along with sons as per Section 6 of the Hindu Succession Act. But the circumstances, narrated by the learned counsel, to set aside the sale deed, appear to be acceptable. At the same time, the appropriation of property by way of settlement deed is no more recognized and it is clear that it is not acted upon by either of the parties and doubt may arise as to how the property was not acted upon. One of the ground is that after the settlement deed dated 29.06.1986, the suit is not acted upon both by Sri G.V.Muralikrishna and Sri G.Venkatappa and thereafter, the suit was filed by none other than Sri G.V.Muralikrishna to cancel the sale deed, the probability of execution of sale deed is broken by the conduct of Sri G.V.Muralikrishna in getting the sale

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deed in his favour without mentioning the details of other members of the family and there is no material to show as to how the consideration of Rs.3,50,000/- was paid. Admittedly, it was not through bank instrument. Further, the presentation of facts regarding payment of consideration does not appear to be probable and no support or corroborative material is produced to accept the said sale deed as genuine one. The further details regarding the sale deed is concerned, it is executed on 29.08.1987 in respect of the suit schedule property by Sri G.Venkatappa in favour of Sri G.V.Muralikrishna. No details of the family or rights of the family members are mentioned in the sale deed. In the circumstances, it clearly indicates that Sri G.Venkatappa did not receive any consideration and he never intended to sell the suit schedule property to Sri G.V.Muralikrishna. There is no probability or necessity to execute the sale deed dated 29.08.1987. It is also necessary to mention that the availability of its existence and payment details are not forthcoming, more particularly, when a person i.e., Sri

¶162

¶163

G.V.Muralikrishna already got half share in the suit

¶164

schedule property, it appears to be strange and illogical.

¶165

Sri M.Shivaprakash, learned counsel for respondent Nos.1 to 5 submitted that the suit schedule property belongs to the children of Sri G.Venkatappa who are Class-I heirs and the claim of Sri G.V.Gopalakrishna for half share or full share in the suit schedule property is not lawful or legal.

¶166

Smt.M.L.Srimathi, learned counsel for respondent No.6/G.V.Muralikrishna states that sale deed is properly executed by Sri G.Venkatappa in favour of Sri G.V.Muralikrishna.

¶167

In totality of the circumstances, after considering all the documents i.e., settlement deed, sale deed and the pleadings of the parties, I find that the learned trial Judge is right in granting 1/7^th share to each of the children of Sri G.Venkatappa. Interference insofar as the judgment and decree in O.S.No.4212/1992 is

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¶169

concerned, it is filed by Sri G.Venkatappa and his children, wherein the trial Court has decreed the suit of Sri G.V.Gopalakrishna in part, wherein he has sought for half share in the entire property. Regard being had to the fact that Sri G.Venkatappa had seven children including Sri G.V.Gopalakrishna and there are three sons and four daughters. In the circumstances, the judgment and decree passed by the trial Court is acceptable and I do not find any reason to interfere with the same. There is no infirmity, irregularity or perversity in the judgments and decree passed by the trial Court.

¶170

Hence, both the appeals are rejected.

¶171

Sd/JUDGE

¶172

HJ/PB

Shri G v. Gopalakrishna v Shri G Venkatappa

Case brief

What is this about?

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Shri G v. Gopalakrishna v Shri G Venkatappa

Case brief

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What did the court decide?

What the court decided

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