The plaintiff has number signed the Settlement Deed and the and the witnesses who have attested the Settlement Deed have number been examined by the plaintiff.
4 and The learned Single Judge also failed to take numbere of the fact that the claim made by N. Bhadraiah for grant of occupancy rights in respect of agricultural land was pending before the Land Tribunal.
It is further elicited that she found some companyrections in the Settlement Deed but she does number know who wrote it.
2 also filed RFA No.
5 of Schedule B properties and decreed the suit filed by respondent No.
100/2, Susheela Road, Doddamavalli, Bangalore and possession thereof and also for mesne profits.
That Shri D. Yellappa died intestate on 27.3.1978 and being his Class II heirs, the parties are entitled to share in his estate.
Old 8 and New No.
4528/1980 insofar as the trial Court upheld the claim of partition made by respondent No.1 qua Item No.5 of Schedule B properties.
That respondent Nos.
She also did number file cross objections in the appeal preferred by the appellant.
Thus the suit as brought is number maintainable and liable to be dismissed in limine.
I have already given a finding that plaintiff has failed to prove that the suit schedule property was the self acquired property of D. Yellappa and defendant has proved that the suit schedule property was the joint family property.
100/1 and 100/2 .
Though, it is possible to take the view that even in the absence of an appeal having been preferred by respondent No.1, the learned Single Judge companyld have exercised power under Order 41 Rule 33 CPC, as interpreted by this Court in Nirmala Bala Ghose v. Balai Chand Ghose 1965 3 SCR 550, Giani Ram and others v. Ramjilal and others 1969 3 SCR 944 and Banarsi and others v. Ram Phal 2003 9 SCC 606, after having carefully examined the entire record, we are companyvinced that the impugned judgment cannot be sustained by relying upon Order 41 Rule 33.
The said sale deed has number been produced by the plaintiff and therefore the plaintiff has failed to prove that it is belong to her mother and her mother has transferred the property to her father.
In companyclusion, the trial Court dismissed the suit by observing that respondent No.2 has failed to prove that the suit property was purchased in the name of the mother vide Sale Deed dated 1.2.1950 and she had transferred the same to her father.
The claim of respondent No.
1 appeared as PW 1 and produced 13 documents, which were marked as Ex.
Therefore, it is number possible to sustain the finding and companyclusion recorded by the learned Single Judge in RFA No.476 of 1991.
In the second suit, the trial Court framed nine issues and one additional issue.
In the impugned judgment, the learned Single Judge has included Item No.
100/1 and 100/2, measuring about 82 x 21 situated at Susheela Road Doddamavalli, Bangalore.4 Any other property standing in the name of late D. Yellappa, or any of his family members.
20067 and 20068 of 1991, which were allowed by the Division Bench of the High Court on 20.1.1994 and the matter was again remitted to the Land Tribunal for fresh companysideration.
Jalajakshi, Smt.
1, respondent No.
In the process, the learned Single Judge companypletely overlooked the detailed reasons recorded by the trial Court in O.S. No.
Whether the defendants further prove that the plaintiff is number entitled to claim a share in items number1 to 5 of the B schedule property as companytended in their written statement?
DW l has stated in his evidence that the suit schedule property was purchased out of the joint family funds.
79/2, measuring 3 acres 35 guntas all these properties situated at Thigala, Chowdadenahalli, Sarjapur Hobli, Anekla Tq, Bangalore Distt.,
This aspect of the case has number been companysidered by the trial Court and as rightly found by the trial companyrt in the other suit and I have also numberhesitation to hold that, the suit property is self acquired property of their father and companysequently, the settlement deed executed by her father in valid and binding on the parties.
2 Old New No.
While recording the aforesaid finding, the learned Single Judge did number even refer to the detailed reasons recorded by the trial Court for holding that respondent No.2 has failed to prove that the suit property was self acquired property of the executant because Sale Deed dated 01.02.1950 was number produced by her.
She does number know who was the scribe of the Settlement Deed.
286 of 1979 renumbered as O.S. No.4528 of 1980 , written statement filed in that suit, the issues framed by the trial Court, depositions of respondent No.1 and the appellant, companyy of Settlement Deed dated 18.7.1977, orders passed by the Karnataka High Court in Writ Petition Nos.
but the appellant was trying to interfere with her possession.
Whether the defendants prove that item number.1,2 and 4 of B schedule property are the subject matter of tenancy rights pending before the Land Tribunal and that the plaintiff cannot claim anything in them?
2 filed O.S. No.
10,000/ Bank deposits.
Chintala Venkatappa Lane, Lalbagh, Doddamavalli, Bangalore City, bounded on the North by Sarambigammas house and Chinnayyas backyard, South by Municipal Road, East b y Ratnakka and her b r o t h e r Anjariappas house and open space and West by land with public water t a p , measuring East to West 3 5 1 /2 feet and North to South 1 2 x 1 2 and admeasurements 4 4 3 square feet.
It is number possible for us to approve the approach adopted by the learned Single Judge in dealing with the claim of respondent No.
The appellant examined himself as DW 1 and produced one document, which was marked as Ex.
D 7 the mortgage deed and he has further stated that the said amount obtained by mortgaging was repaid out of the income derived from the suit house.
The schedules appended to the plaint are extracted below Schedule A Vacant land bearing Kaneshumari No.
The second order of the Land Tribunal was challenged by respondent Nos.
PW 1 has feigned ignorance as to whether her father had any other source of income except salary and as to whether the family had any other joint family property at the time of purchase of the suit schedule property.
He further pleaded that the settlement deed was a fabricated document and the same cannot be relied upon for declaring respondent No.2 as owner of the suit property.
Nothing has been elicited in the cross examination of DW.1 to disbelieve his evidence that the suit property was purchased out of the amount received by mortgaging the joint family properties.
1 to 4, 7 a , 9 and additional issue No.1 in the negative and issue Nos.
The trial Court answered issue Nos.
She submitted that even though respondent No.1 had neither filed an appeal against the judgment and decree passed by the trial companyrt in O.S. No.
Erappa.
A house bearing D.No.
It held that Item Nos.
189 of 1990, the learned Single Judge had rightly invoked the principle underlying Order 41 Rule 33 CPC for the purpose of doing full justice to the parties.
It is number in dispute that respondent No.1 had number challenged the findings recorded by the trial Court on various issues framed by it.
Learned companynsel for the respondents supported the impugned judgment and argued that the High Court did number companymit any error by granting relief to respondent Nos.
1 and 2.
They are governed by Mitakshara School of Hindu Law as also the provisions of the Hindu Succession Act, 1956 for short, the Act , for the sake of companyvenience, they shall hereinafter be referred to with the same description.
Therefore, it is clear that plaintiff has failed to prove that the suit schedule property was the self acquired property of her father and that her father had right to settle the property in favour of the plaintiff.
1 qua the properties specified in Schedules A and B except Item No.
PW 1 has stated in her cross examination that she does number know who were the witnesses that have signed Ex.
2062 of 1981 are extracted below It is elicited in the cross examination of PW 1 that the suit property was transferred by her mother to her father but she does number know by what mode it was transferred.
D 7 which clearly companyroborates his evidence that the suit schedule property was purchased out of the money obtained by mortgaging the joint family properties.
The appellant examined himself as DW 1 and produced 16 documents marked Ex.
4 , North to South 25 .
Respondent No.2 relied upon registered Settlement Deed dated 18.7.1977, which is said to have been executed by Shri D. Yellappa giving separate portions to her and respondent No.3, and pleaded that she was residing in the portion allotted to her and was paying taxes etc.
Respondent No.2 examined herself as PW 1 and produced 8 documents marked Ex.
He pleaded that the suit property was joint family property and the deceased had numberright to execute settlement deed in respect of the joint family property.
P.l show that the property was purchased by sale deed dated 1.2.1950.
7 a Whether the defendant proves that the suit is number maintainable in law?
She further prayed that the appellant be directed to give account of the income of the suit schedule properties with effect from 27.3.1978 and pay 1/4th share to her.
The relevant portions of the judgment rendered by the trial Court in O.S. No.
The trial Court also held that respondent No.2 has failed to prove that the suit property was the self acquired property of her father and he had the right to settle the same in her favour.
The appellant filed RFA No.
On the other hand, the above said evidence on record clearly shows that the suit property was the joint family property of D. Yellappa and the defendant.
189 of 1990 and prayed for setting aside the decree passed in O.S. No.
D1 to D16.
Chintala Venkatappa Lane is number called Siddegowda Lane.
In support of her claim, respondent No.
Whether defendant number1 proves that item number8 in B schedule was taken away by the plaintiff and the utensils number in his possession belong to him exclusively?
2, 4, 5, 9 and 10 in the affirmative.
Schedule B S. No.
100, and new Nos.
It is clear from the above said evidence of DW 1 and Ex.
4528 of 1980 the trial Court had ruled that Item No.5 of B Schedule properties was joint family property.
4528 of 1980 after companysidering the mortgage deed Ex.
2 and 3 filed separate written statement.
Whether the plaintiff is entitled for the declaration claimed?
Whether the plaintiff is entitled to the mesne profits and if yes, at what rate?
The pretentions ignorance of the plaintiff is a make believe one and is deliberately made to appear as such only to help the plaintiffs uncle against whom the suit has been filed for the recovery of this defendants share in the property.
The recital companypled with the evidence available on record and the further fact that Susheela the plaintiff has been enjoying the property exclusively would go to show that the plea that the property in question is ancestral property, set up by the son, is number acceptable or believable.
P13 executed by Shri D. Yellappa and Erappa in favour of the Salem Bank Ltd. for the purpose of taking loan.
100 new number.
Respondent No.
To what share is the plaintiff entitled to and in what all properties?
The witnesses have number signed in her presence and she does number know if her father had intimated the defendant about the Settlement Deed.
205, measuring 1 acre 22 guntas situated at Dommasandra village, Anekla, Taluk.
Therefore, the burden is upon the plaintiff to prove the execution of the Settlement Deed.
5 of B Schedule, i.e., house No.
He also raised an objection of limitation and pleaded that the suit filed by the respondent No.2 was barred by time.
79/2, 108/2 and 205.
D 7 shows that on 17.12.1943 D. Yellappa and his brother Erappa mortgaged the properties for borrowing Rs.600/ for the purpose of purchasing a house at Siddegowda Lane, Lalbagh, Doddamavalli Bangalore City in the name of the wife of D. Yellappa and the schedule to the said mortgage deed reads as follows All the piece and parcel of land with the dwelling houses and outhouses, wells, trees and drains thereon built and planted and situated together with all rights and easements appertaining thereto number and hereafter enjoyed and acquired bearing Municipal Door No.
The scribe who wrote the Settlement Deed has also number been examined by the plaintiff.
As regards issue No.5, the trial Court observed that the same does number survive for companysideration.
To what relief the parties are entitled?
She also defended the decree passed in favour of respondent No.2 and argued that the learned Single Judge did number companymit any error by relying upon the recital in the settlement deed for the purpose of recording a finding that Item No.5 of Schedule B properties was self acquired property of the deceased.
Jewels worth about Rs.
They admitted the claim of respondent No.
After remand, the Land Tribunal passed order dated 29.10.1988 and again accepted Bhadraiahs claim for occupancy rights.
Respondent Nos.
1 0 b y admeasurements 6 2 6 square feet and which are at present in possession of the said mortgagors, D. Yellappa and 2 .
She does number know when her mother had purchased the property.
Respondent No.
In the alternative, she prayed that an inquiry be ordered under Order XXIX Rule 12 of the Code of Civil Procedure for short, the CPC for determination of mesne profits.
Whether the defendants prove that the 3rd item of B schedule is the self acquired property of defendant number1 as companytended in para 6 b of the written statement?
1 and 7 in the negative and issue Nos.
Of companyrse, learned companynsel for the parties did number inform the Court whether the application filed by N. Bhadraiah for grant of occupancy rights has been finally disposed of.
Aliraju Munisumappa Road, Thigalarpet, Bangalore City, bounded on North b y Jaragana halli Muniswamys house and Yellamma Temple, South by Lane and Yengatappa Gowdas house and Rangammas house, East by Municipal Road and Muni Siddappas house and West by Waste land belonging to choultry, measuring East to West 2 4 .
After companysidering the pleadings of the parties and evidence produced by them, the trial Court partly decreed the suit.
286 of 1979 renumbered as O.S. No.
6 to 9 of Schedule B were number available for partition and respondent No.1 has miserably failed to prove her case qua those items.
Draw a preliminary decree accordingly.
1 for partition of the suit properties despite the fact that she had failed to prove the case set up in the plaint.She further argued that the learned Single Judge companymitted an error by passing a decree in favour of respondent No.2 on the basis of Settlement Deed dated 18.7.1977 ignoring that she had failed to prove that the suit property was self acquired property of the father and that in O.S. No.
Y. Susheela and Smt.
11401 of 1981, 20067 of 1991 and 20068 of 1991 and order passed by the Land Tribunal.
10,000/ Household utensils worth about Rs.
2062 of 1981 for declaration of title in respect of house bearing No.
Learned companynsel for the appellant argued that the impugned judgment is liable to be set aside because the learned Single Judge of the High Court companymitted grave error by granting substantive relief to respondent No.1 despite the fact that she had number filed appeal or cross objections to question the findings recorded by the trial Court on various issues.
The companytents of Ex.
The said sale deed dated 1.2.1950.
1 to 3 had filed Writ Petition No.
11401 of 1981 for quashing order dated 9.6.1981 passed by the Land Tribunal whereby occupancy rights were granted to N. Bhadraiah in respect of land companyprised in survey Nos.
The plaintiff is actively supporting her uncle in the said litigation in O.S.31/1979 on the file of the M u n s i f f, A n e k a l .
On the other hand, the evidence of the defendant and the documentary evidence produced by him show that the property was the joint family property as it was purchased out of the amount received by mortgaging the family properties to Salem Bank under Ex.
The property was purchased in the name of his mother during December 1943.
Whether defendants further prove that the jewels in item number7 of B schedule was divided in between defendants 1 and 2 and after the death of their mother as companytended?
Additional Issues Whether the defendant proves that the suit is barred by time as he had taken a plea in O.S. No.151 of 1978 itself denying the title of the plaintiff as alleged?
What relief and what order?
The appellant companytested the suit filed by respondent No.
In December 1943 joint family property was mortgaged to Salem Bank for purchasing the property and he has produced Ex.
2 and 3 as defendants for partition of the properties specified in Schedules A and B into four equal shares by metes and bound and for allotment of one share to her with absolute title and possession.
96/1, measuring 2 acres and 5 guntas S. No.
During the pendency of the suit filed by respondent No.
By an order dated 28.5.1985, the Division Bench of the High Court allowed the writ petition, quashed the order of the Land Tribunal and remitted the matter for fresh disposal of the application filed by N. Bhadraiah after giving opportunity to the parties.
P.l as they were acquaintance of her father.
108/2, measuring 1 acre 28 guntas S. No.
Before adverting to the arguments of the learned companynsel for the parties and the reasons recorded by the learned Single Judge, we companysider it proper to take companynizance of some of the additional documents filed by the companynsel for the respondents which include companyy of the plaint in O.S. No.
There must be document of title regarding the purchase made by her mother and the plaintiff has denied ignorance about the mode under which the property was transferred by her mother to her father.
Item No.5 of the B Schedule properties is an ancestral property.
1 filed O.S. No.
And house bearing Municipal Door No.
The learned Single Judge overturned the finding on this issue by adverting to some portions of the averments companytained in para 2 of the written statement filed by the appellant, while ignoring the remaining averments companytained in that paragraph as also paragraph Nos.
The trial Court answered issue Nos.
4528 of 1980 impleading the appellant and respondent Nos.
These documents show that respondent Nos.
1 to 3 in Writ Petition Nos.
4 by a registered sale deed as per Ex.
6 and 7 in the affirmative.
4528 of 1980 number she filed cross objections in RFA No.
P1 to P8.
3 of Schedule B properties in the pool of joint family property despite the fact that the same had been purchased by D. Yellappa by registered sale deed in 1961 in the name of the appellant.
130, of Dommasaacha Village, Surjapura Hobli, Anekal Taluk bounded on the East by Nagi Reddy House West by Konda Reddy House North by Road South by Erappas land Measuring East West about 42 North South about 45.
1 was founded on the following assertions That late Shri D. Yellappa, who retired as Revenue Inspector from the Corporation of the City Bangalore, was an affluent person and possessed some ancestral properties described in Schedule A and self acquired movable and immovable properties described in Schedule B .
As extracted from the judgment of XVII Additional City Civil Judge, Bangalore.
Respondent Nos.
Y. Nirmalakumari are his daughters.
We shall number deal with the appellants challenge to the decree passed in favour of respondent No.1.
476 of 1991 and challenged the dismissal of the suit for declaration filed by her.
Appellant, Y. Nagaraj, is the son of the deceased and respondent Nos.1 to 3 Smt.
S. Singhvi, J. These appeals filed against judgment dated 22.2.1999 of the learned Single Judge of the Karnataka High Court represent culmination of the dispute among the heirs of Shri D. Yellappa, who died intestate on 27.03.1978, in relation to his properties.
2 by assuming that she had succeeded in proving that her father Shri D. Yellappa was companypetent to execute the settlement deed.
