1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.607 OF 2022(PAR) BETWEEN SRI. G. SUBRAMANYA NAIDU S/O LATE GOVINDASWAMY NAIDU, AGED ABOUT 64 YEARS, RESIDING AT NO.22/2A BEHIND VIDYA PEETA CIRCLE, (AVINASI TILES) BANASHANKARI I STAGE, BENGALURU - 560 050. ...APPELLANT (BY SRI. JAGADEESWARA N.R., ADVOCATE) AND: 1 . SMT. M.C.PADMA D/O LATE M. C. NAIDU, W/O LATE G. PURUSHOTHAM AGED ABOUT 63 YEARS, 2 . SRI. G.P.CHETAN RAJ S/O LATE G. PURUSHOTHAM, AGED ABOUT 44 YEARS, 3 . SMT. G.P.SRIDEVI, S/O LATE G. PURUSHOTHAM AGED ABOUT 44 YEARS, 2 ALL ARE R/O NO.22/2, SUNKENA HALLI, OPP. VIDYA PEETA, KATHRIGUPPE MAIN ROAD, BENGALURU - 560 050 …RESPONDENTS (BY SRI. VENKATESHA C., ADVOCATE FOR C/ R1 TO R-3) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.01.2022 PASSED BY LEARNED XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH 35) IN O.S. NO. 4397/2010 IN DISMISSING THE SUIT OF THE PLAINTIFF FOR PARTITION AND SEPARATE POSSESSION OF HIS SHARE. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 05.02.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THROUGH VIDEO CONFERENCE AT KALABURAGI BENCH, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT This appeal is filed by the appellant/plaintiff under Section 96 of CPC for setting aside the judgment and decree of dismissal of the suit filed by the plaintiff in OS No.4397/2010 dated 13.01.2022. 2. Heard the learned counsel for the appellant and learned counsel for the respondents. RESERVED FOR JUDGMENT ON: 05.02.2025 PRONOUNCED ON 24.04.2025 3 3. The appellant was the plaintiff and the respondents were the defendants before the Trial Court. Ranks of the parties are retained for the sake of convenience. 4. The case of the plaintiff before the Trial Court is that the plaintiff filed a suit for partition and separate possession by metes and bounds along with mesne profits. It is alleged that one Govindaswamy Naidu had three daughters namely Sarojamma, Dhanalakshmamma and Mahalakshmi and four sons namely Varadarajalu Naidu, G. Pursushotham, G. Balachander and G. Subramanya Naidu. Govindaswamy Naidu has performed the marriage of his two daughters and the marriage of third daughter was performed by the plaintiff and Pursushotham and they have given cash and gold jewelries towards their share. The said Govindaswamy Naidu had possessed several immovable properties and he was doing various business. Varadarajalu Naidu had executed a registered release deed dated 11.08.1967 in favour of Govindaswamy Naidu relinquishing his right, title and interest in the family properties. Govindaswamy Naidu died on 17.01.1971. After the death of Govindaswamy Naidu, 4 another son of Govindaswamy Naidu has relinquished his right, title and interest in the family properties by executing a registered release deed in favour of Pursushotham, Subramanya Naidu and Smt. Mangamma, wife of late Govindaswamy Naidu under the release deed dated 24.06.1981. The defendant No.1 is the wife and defendant Nos.2 and 3 are the son and daughter of Purushotham. Smt. Mangamma passed away on 11.12.1993. The plaintiff and Purushotham constituted Hindu Undivided/Joint family and succeeded to the properties of late Govindaswamy Naidu. G. Purushotham passed away on 12.03.2008. 5. It is further alleged that the properties acquired by the father of the plaintiff are (1) site No.38/2 measuring 40x120 ft., (2) Site No.38/1, measuring 40x120 ft., (3) land bearing Sy.No.22/3A measuring 0.39 guntas (4) land bearing Sy.No.22/2 measuring 90x124 ft., (5) land bearing Sy.No.10/2 and (6) land bearing Sy.No.116. The father of the plaintiff has acquired several immovable properties at 5 Bangalore i.e. at West Anjaneya Temple Road, Vidya Peeta Circle, Kathriguppa Khadi Board Layout, Kahtriguppe etc., 6. It is further alleged that Purushotham has given the family property at West Anjaneya temple road for rent to Maruthi dying factory and the entire rent is illegally utilized for the acquisition of the property by Purushotham. Purushotham sold the land bearing Sy.No.116 belonging to the joint family under registered sale deed dated 03.11.1972. Out of the sale consideration amount received from the sale of family property, several properties are acquired in the name of the defendant No.1. The family was also running Touring Talkies and other industries and businesses and the joint family was getting good income. Purushotham has invested the income from the joint family business to acquire the properties in the name of the defendant No.1. 7. It is further alleged that the brother of the plaintiff, Purushotham in the name of defendant No.1 has acquired the land bearing Sy.No.136, measuring 1 acre 10 guntas 6 including 4 guntas of kharab, Sy.No.139 measuring 3 acres 38 guntas including 5 guntas of kharab situated at Gottigere village, Hamlet of Halage Vaddarahalli village, Kengeri Hobli, Bangalore South Taluk on 27.02.1986, the land bearing Sy.No.24, measuring 5 acres 05 guntas situated at Arehalli village, Utarahalli Hobli, Bangalore South Taluk under sale deed dated 28.05.1981, the land bearing Sy.No.25/3 measuring 39 guntas, Sy.No.26/3 measuring 2 acres 7 guntas and Sy.No.27/3 measuring 26 guntas situated at Arehalli village, Uattarahalli Hobli, Bangalore South Taluk under Sale deed dated 28.05.1981. 8. It is further contended that the brother of the plaintiff, Purushotham in the name of defendant No.1 and their minor son, defendant No.2 has acquired land bearing Survey No.128, measuring 1 acre 10 guntas including 2 guntas of kharab land situated at Gottigere village, Hamlet of Halage Vaddarahalli village, Kengeri Hobli, Bangalore South Taluk, on 27.02.1986. The land bearing survey No.137 measuring 1 acre 14 guntas including 4 guntas of kharab 7 situated at Gottigere village on 27.02.1986 was acquired in the name of defendant No.1 and their minor daughter by Purushotham. That land bearing Survey No. 135, measuring 1 acre 12 Guntas, Survey No.134 measuring 1 acre 14 Guntas situated at Gottigere village on 27.02.1986 in the name of defendant No.1 and their minor children by Purushotham. The joint family business was jointly managed and looked after by both Purushotham and Plaintiff. 9. It is further contended that Purushotham has acquired land bearing Survey No.130, measuring 3 acres situated at Hoodi village, K.R. Puram Hobli, Bangalore East Taluk, on 03.03.1989 in the name of the defendant No1. Purushotham has also acquired land bearing Survey No.37, situated at Madapura village, Ramanagaram taluk and District measuring 5 acres 11 guntas in the name of defendant No.1. One Godown No.33 situated at APMC Yard, Yeswanthapura is purchased in the name of the defendant No.1. While purchasing land bearing Survey No.22/2 in 8 Kathriguppe Uttarahalli Hobli, Bangalore South Taluk, it was mentioned as sites and the amount for repurchasing the property was paid from the joint family funds. 10. It is further alleged that the mother of the plaintiff Smt. Mangamma had sold the site in Survey No.10/2 and one such sale deed dated 24.04.1980 was executed in favour of Ganga Narasimhaiah and the said amount was received by the husband of the defendant No.1 and he had used the same to acquire the property in the name of the defendant No.1. 11. It is further alleged that 1) Site No.14, measuring 42x60 ft., 2) Site No.10 measuring 42x60 ft., 3) Site No.20, measuring 38+38x50=176.47 SMT, 4) Site No.19, measuring 41 + 33/2x60 = 234.207 SMT, 5) Site No.1233/1, measuring 60x37 ft., 6) Site No.1233/H, measuring 60x37 ft., 7) Site No. 1233/L, measuring 52+45x90 = 4365 sft., 8) Site No.1233/J, measuring 60x37 ft., 9) Site No. 1233/K, measuring 60x37 ft. and 10) No. 1233/M, measuring 9 27+45/2x27/2 and 25+5x16/2=160 Yards in Sy.No.22/2, were acquired under different sale deeds dated 30.07.2003. 12. It is alleged that out of the family income Manjunatha Touring Talkies was started in the year 1977 by Purushotham. The Joint family property, which is in the name of their father was pledged to Syndicate Bank and the loan proceeds are utilized to acquire properties. Out of sale consideration amount from the sale of the family properties and income from the family business and out of the nucleus of the family, the brother of the plaintiff has acquired the suit schedule properties mentioned in the 'B' schedule in the name of the defendant No.1. The schedule properties are joint family properties and the plaintiff is having half share in the said properties. The plaintiff has demanded many times with the brother of the plaintiff to share mutually. After the death of the Purushotham on 12.03.2008, the defendant started to divert the funds of the joint family. The Plaintiff has demanded for partition of the joint family properties and 10 the defendant has postponed the same for more than one year and finally turned down. The properties belongs to the father of the plaintiff are mentioned in the Schedule ‘A’ and the properties acquired in the name of the defendant No.1 are described in the Schedule ‘B’ and property acquired by the plaintiff is mentioned at Schedule ‘C’. 13. It is further contended that the Purushotham has acquired Schedule ‘J’ property under registered sale deed dated 01.03.1999. He has also acquired the Schedule ‘K’ property under registered Sale Deed dated 01.03.1999, the Schedule ‘L’ property in the name of defendant No.1. and Schedule ‘M’ property in Survey No.16 situated at Kathriguppe village, Bangalore, wherein he has put up a residential building consisting of ground floor and first floor and the same is let out to the tenant. The said Purushothama acquired the Schedule ‘N’ Property in the name of defendant No.1 and put up construction of commercial buildings consisting of ground, first and second floors, which are let 11 out. He also acquired the Schedule 'O' Property registered in the name of his son, defendant No.2, who was minor at that time and was represented by guardian/grandmother. He acquired the Schedule ‘P’ Property in the name of his daughter, defendant No.3, who was minor at that time and was represented by guardian/grandmother. The above properties are acquired out of the joint family funds and income derived out of the joint family business and other incomes from the family properties. As such the plaintiff is also entitled for a share in the said properties. Hence, he prayed for allowing the suit. 14. In pursuance of the suit summons, defendant No.1 appeared through the counsel and filed written statement. During the pendency of the suit, defendant No.2 and 3 were also impleaded, who filed separate written statement. 15. Defendant No.1 filed a written statement contending that One Govindaswamy Naidu is the father-in- law of the defendant No.1 and father of the Plaintiff. He has 12 three daughters and four sons. He has performed the marriage of his two children and the marriage of the third daughter was performed by the mother-in-law of defendant, namely Smt. Mangamma and husband of the defendant No.1. At the time of marriage of the daughters of Govindaswamy Naidu, they were given cash and gold jewellery towards their shares. 16. It is further contended that late Govindaswamy Naidu had possessed immovable property bearing No.38/1, measuring 40 x 120 feet, property bearing No.38/2, measuring 40 x 120 feet, both are situated at West Anjaneya Temple Street, Basavanagudi, Bangalore, land bearing Survey No.22/3 measuring 39 guntas situated at Sunkenahalli village, Kattriguppe Main Road, Uttarahalli Hobli, Bangalore South Taluk. The first son of Govindaswamy Naidu, Sri. Varadaraju Naidu has executed a registered release deed in favour of his father on 11.01.1967, relinquishing his right, title and interest in respect of the above said properties. Govindaswamy Naidu died on 13 17.01.1971. After the demise of Govindaswamy Naidu, G. Balachandra Naidu, who is the another of Govindaswamy Naidu has executed a release deed dated 24.06.1981 by relinquishing his right, title and interest in respect of the above said properties in favour of Purushotham, Subramanya Naidu and Smt. Mangamma. 17. It is also contended that the husband of defendant No.1, plaintiff and their mother Smt. Mangamma were in joint possession of the above said properties. During the year 1982, the husband of defendant No.1 had separated from the joint family. The plaintiff also separated from the joint family and lived independently from 1982. Joint family properties are under the care and custody of the plaintiff and there was no income from the said properties. During the lifetime of Govindaswamy Naidu, he was not able to maintain the family as there was no income from the joint family properties. Due to the said reason, he has mortgaged the Item No.1 of the 'A' Schedule Property in favour of Bangalore Central Co-operative Bank and he could not able to clear the 14 above said loan as there was no income from the joint family. Thereafter he has mortgaged another property bearing No.38/2 of West Anjaneya Street (Dattatreya Cross road) in favour of one M. Nanjunda Rao under the registered mortgage deed dated 16.06.1970 and which was released by husband of defendant No.1 on 30.07.1974. 18. He further contended that in order to perform the marriage of G. Purushotham and G. Balachandra, the joint family properties were once again mortgaged in favour of one Nanjunda Rao. After the marriage of the defendant No.1, the father of the defendant No.1 by the income out of his business, by giving money, helped defendant No.1 to start own business of crushing limestone. Defendant No.1 also started Lakshmi Agro Industries and Lakshmi composite firms, by the help of her father. Out of the income derived in the business, defendant No.1 has purchased the properties mentioned in the 'B' schedule of the plaint. 19. He further contended that after separation, the plaintiff acquired the 'C' schedule properties and also 15 acquired other properties in the name of his children and he got an apartment near Devegowda Petrol Pump at Bangalore City. He is getting more than two lakh rupees rent from the apartment. The plaintiff is also having own house, near Devegowda Petrol pump and he is running own business under the name and style of Avinash Tiles and marbles and out of the said business the plaintiff is getting sufficient income. 20. It is further contended that item No.1, 2 and 4 properties of Schedule A' belong to joint family and defendant No.1 is entitle to half share in the said properties. Item No.3 property of 'A' schedule is the self-acquired of the defendant No.1. Item No.5 property of "A' schedule property was sold on 03.11.1972 by all the members of the family and same was within the knowledge of plaintiff. Item No.6 property of "A" schedule is not in existence. 21. Item No.1 of "B" Schedule property was purchased by the defendant No.1 and one B.S. Vagesh jointly on 03.03.1989. Defendant has only 50% share in the said 16 property. Item Nos.3 and 4 properties of the 'B' Schedule are already sold in favour of one Shanthamma and Rekha S. Chandru on 13.12.2004 under a registered sale deed. Item Nos.2, 5, 6 and 7 are the properties of "B' Schedule and are acquired by the Bangalore Development Authority and BDA is in possession. Item No.8 property of 'B' schedule is not in existence. Item Nos.9 to 19 properties of the 'B' schedule are acquired out of the self earned money of the defendant No.1. Item No.20 property of 'B' schedule does not belong to defendant No.1 and she is not having any knowledge of said property. 22. Defendant No.1 further contended that there is no dying factory in the Item No.1 and 2 of properties of "A' Schedule and the property bearing Survey No.116 was sold by the mother of the plaintiff during the year 1972 for the marriage of husband of defendant No.1 and Sri. Balachandra, brother of plaintiff and also for the clearance of mortgage amount raised by the plaintiff’s father, obtained through one Nanjunda Rao. There are no firms existing in the past or 17 present. There is no godown No.33 situated at APMC Yard and defendant No.1 is not aware of the same. 23. It is further contended that the plaintiff is not in possession of Schedule ‘B' property or any portion thereof and the plaintiff ought to have valued the suit under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, in respect of the 'B' Schedule Property. Defendant No.1 prays to dismiss the suit in respect of the 'B' schedule properties and to decree the suit in respect of Item Nos. 1, 2 and 4 properties of the 'A' Schedule. 24. Defendant No.2 also filed a written statement by admitting the relationship that defendant No.1 is the wife of Purushotham and mother of the plaintiff, who passed away on 11.12.1993. 25. It is contended that schedule item No.4 is the self- acquired property of defendant No.2 as per the sale deed dated 28.03.2005. Defendant No.2 is running his own 18 business and has acquired said property by borrowing loan at Vijaya Bank, Service Branch, Bangalore. 26. Defendant Nos.2 and 3 also filed one more written statement contending that Schedule ‘L’ property is the self acquired property of defendant No.1. The BMRCL has acquired the entire property for the purpose of Metro Train projects and the award amount has already been claimed by the defendants. ‘M' Schedule Property is the self acquired property of defendant No.1 and she has put up the construction and obtained electricity and let out in favour of the tenants. 'N' Schedule is also a self-acquired property of the 3rd defendant. This property is acquired by BMRCL and they have received the compensation. The property No.3 in Survey No.38/3 situated at Deevatige Ramanahalli Village, Kengeri Hobli is in the name of defendants No.2 and 3. The grandmother of defendant Nos.2 and 3 has contributed and got registered the said property in the name of defendant Nos.2 and 3. 'O' schedule property is also a self-acquired property and already acquired by BMRCL and BMRCL has 19 paid the compensation. The Plaintiff is liable to pay stamp duty under Section 35(1) of Karnataka Court Fees and Suit Valuation Act, since there is no joint possession. Hence, prayed for dismissing the suit against them. 27. Based upon the pleadings the Trial Court framed the following issues and additional issues as under: ISSUES (1) Whether the Plaintiff proves that himself and defendants are the members of undivided Hindu Joint Family and suit schedule property is the undivided joint family property? (2) Whether the defendant proves that suit 'B' schedule properties are her self-acquired properties? (3) Whether the defendant proves that suit 'A' schedule Item Nos.3, 5 and 6 properties are not available for partition? (4) Whether defendant proves that suit is bad for non-joinder of necessary parties? (5) Whether defendant proves that suit is not properly valued and court fee paid is insufficient? (6) Whether the plaintiff is entitled for partition and separate possession of his share from suit schedule properties? (7) To what order or decree? 20 ADDITIONAL ISSUES (1) Whether defendants prove that suit item No.4 has been purchased by 2nd defendant, out of his own earnings and the same is the self acquired property, as contended in para 17 of the written statement? (2) Whether defendants further prove that 'M' schedule property is the self acquired property of the 1st defendant, over which, no other members of the family having right to claim partition?” 28. To prove the case, the plaintiff has examined himself as PW-1 and marked Ex.P-1 to Ex.P-56. Counsel for defendants got marked Ex.57 to Ex.P-71 through DW1 by way of confronting the said documents. Plaintiff on his behalf has examined one witness as PW-2. 29. Defendant No.2 examined himself as DW-1 and marked Ex.D-37 to Ex.D-93. Counsel for the defendants in the cross examination of PW-1, got marked 35 documents as Ex.D-1 to D-35. 30. After hearing the arguments, the Trial Court answered Issue No.1 in the negative, Issue Nos.2, 4, 5 and additional Issue Nos.1 and 2 in the affirmative, Issue Nos.3 21 and 6 in the partly affirmative and finally dismissed the suit of the plaintiff. Being aggrieved by the same, the plaintiff- appellant has filed this appeal. 31. The learned counsel for the appellant has contended that the trial court committed an error in dismissing the suit. It is contended that even though the first defendant has admitted in the written statement that item Nos.1, 2 and 4 are available for partition, but the trial court ought to have decreed the suit of the plaintiff in part, atleast three items in ‘A’ Schedule properties. It is further contended that the sisters are not necessary parties as they were already married and received the cash but the same was not considered. There is no answer and discussion to issue No.6. He further contended that the father of the first defendant was doing business and he is said to have helped for purchasing the properties. All other properties claimed as self acquired properties which is not correct. The husband of the first defendant and the plaintiff were looking after the business of their father. The trial court considered the 22 unregistered palu patti Ex.D-62 dated 02.08.1987 which is not correct. The brother of the plaintiff died in the year 2008, therefore, second and the third defendants made as party. They have filed different written statements. Inspite of no objection by the first defendant, the suit of the plaintiff should be decreed in part. Item No.3 purchased by the father of the plaintiff and a property was sold by the father of the plaintiff and there is no previous partition. Therefore, the judgment is not sustainable. It is further contended that item No.5 is not available which is not correct. Hence, prayed for allowing the appeal. 32. The counsel for the appellant also filed I.A. under Order 41 Rule 27 CPC seeking permission to produce some documents i.e., (i) copy of the gift deed dated 21.08.1999 executed by one C.G. Sarojamma in favour of C. Vinutha (appellant’s sister to appellant’s wife) (ii) copy of OTS sanctioned letter issued by Syndicate Bank, Gavipuram Extension Branch in FDP No.3/1991 (iii) copy of Discharge Deed dated 13.06.2023 (iv) copy of license for exhibiting for touring talkies obtained in the name of the first respondent. 23 33. It is averred by the appellant in his affidavit that these documents were not produced in the trial court in order to mark the same and that if these documents are considered, it will help the appellant’s case for the purpose of decreeing the suit. 34. Per contra, learned counsel for the respondents supported the judgment of the trial court and contended that the sisters of the appellant were not made as party in the suit. Even though their marriage was performed by their father, but for filing the partition suit they are necessary parties to the suit therefore, suit is bad for non-joinder of necessary parties. 35. The learned counsel also contended that the appellant has not challenged the sale deed executed in favour of the third parties by paying the necessary court fee and except pleading, there is no evidence or documents produced. 17 properties were not available for partition and some of the properties belonging to the appellant were also not mentioned in the ‘C’ Schedule properties. Therefore, partial partition is not maintainable. It is further contended 24 that though the appellant has contended that cash and gold were given to the sisters of the appellant at the time of their marriage, but no documents are produced and they are not made as parties. Proving the said contention is not possible. PW-1 has admitted in his cross examination in respect of Ex.P-36 item No.6 as property was not existing which was already sold by the wife of the propositus one Manjamma. The relinquishment deed of Balachandra Ex.D-6 was admitted. Plaintiff has not challenged the said sale deed in item No.6 of ‘A’ Schedule properties. Item No.3 was sold in 1972. Therefore, item Nos.5 and 6 are not available. Item Nos.3 and 4 i.e., Sy.Nos.22/2 and 22/3 are in possession of the appellant. Therefore, the contention of the appellant cannot be considered. 36. It is further contended that as regards to the ‘B’ Schedule properties, Sl.Nos.D to P are self acquired properties of the first defendant. The father of the first defendant given fund for business, out of which those properties were purchased. Those sale deeds were not 25 challenged. All these properties stand in the name of first defendant. 37. It is further contended that the plaintiff has not proved any joint family income and out of the same the property was purchased. The property was sold as there was family necessity. Selling of the property was admitted by PW-1. Bank account was not produced. Items No.1 to 20 of ‘B’ Schedule properties stand in the name of defendants. ‘C’ Schedule properties stand in the name of plaintiff and he has not included the remaining properties standing in the name of his wife and family members. It is further contended that there was family settlement between the parties in the year 1987. The palu patti was produced which clearly reveals that there was prior partition. Therefore, it is contended that the suit cannot be decreed. The touring talkies was burnt and later a tiles factory was running in the name of ‘Avinash Tiles and Marbles’ which was run by the plaintiff. The plaintiff also purchased properties in the name of his wife as per 26 Exs.D-27 and D-28. Therefore, the suit of the plaintiff cannot be decreed. Hence, prayed for dismissing the appeal. 38. The learned counsel for the respondent also objected the I.A. contending that the documents produced by the appellant is not pertaining to the family and the loan obtained by the plaintiff has been discharged by the husband of the defendant. Therefore, this I.A. and the documents produced by the appellant are not useful to the appellant’s case. Hence, prayed for dismissing the application. 39. Having heard the arguments, perused the records, the points that arise for my consideration are: (i) Whether the plaintiff proves that himself and the defendants are members of the Hindu undivided joint family and suit schedule properties are joint family properties? (ii) Whether the defendant proves that ‘B’ Schedule properties are the self acquired properties and item Nos.3, 5 and 6 and the properties in Schedule ‘A’ are not available? 27 (iii) Whether the suit is bad for non-joinder of necessary parties? (iv) Whether plaintiff is entitled for partition and separate possession of the suit schedule properties? (v) Whether the second defendant proves that item No.4 of the property was self acquired property and item No.M property was self acquired property of the first defendant? (vi) Whether judgment passed by the trial court calls for any interference? 40. Appellant, to prove his case, examined himself as PW-1 and got marked various documents. He also examined PW-2 his uncle Balachandra and they got marked 71 documents. According to their case, the father of the appellant one Govinda Swamy Naidu was the propositus and having three daughters and four sons. The first son Varadaraju Naidu and PW-2 Balachandra have executed relinquishment deed. It is alleged that Varadaraju Naidu executed relinquishment deed in favour of Govinda Swamy Naidu and after the death of Govinda Swamy Naidu, PW-2 Balachandra executed relinquishment deed in favour of his 28 brothers i.e., plaintiff as well as Purshottam the husband of the first defendant. Thereby, only the plaintiff and the first defendant’s husband were the only two legal heirs and it is also alleged that the father of the plaintiff got performed the marriage of three daughters and he has paid cash to the daughters therefore they do not have any share in the properties mentioned in Schedule ‘A’ to ‘C’. 41. The fact of relinquishment deed executed by Varadaraju Naidu and Balchandra Naidu is not in dispute. Even the first defendant has stated that some cash was given to the daughters of Govinda Swamy Naidu. However, there is no relinquishment deed executed by the daughters of Govinda Swamy Naidu i.e., sisters of the plaintiff. Admittedly, the plaintiff filed suit for partition stating that there is no partition among the family members and there were lot of landed properties which were managed by Purshottam brother of the plaintiff and it is contended that out of the income from the joint family, the husband of the first defendant purchased the properties mentioned in the ‘B’ 29 Schedule properties in the name of first defendant as well as defendant Nos.2 and 3. Except oral evidence, there are no documents produced to show that there was income from the joint family properties and out of the joint family income the ‘B’ Schedule properties have been purchased by the husband of the first defendant in the name of the first defendant and also properties stand in the name of second and third defendants. Point No.(iii): 42. The family consisting of three daughters and four sons namely (1) Sarojamma (2) Dhanalakshmamma (3) Mahalaxmi (4) Purshottam Naidu (husband of first defendant) (5) Balachandra (6) Varadaraju Naidu and (7) Subramanya Naidu (plaintiff). 43. Admittedly, when the suit for partition is filed claiming share in the joint family properties, the plaintiff had not impleaded his three sisters and Balachandra PW-2 and legal heirs of Varadaraju Naidu as defendants. Though it is 30 contended that the sisters were paid cash by the father during their marriage, but once the plaintiff claiming the joint family is existing and the joint family properties are existing and there is no partition, such being the case, the plaintiff shall implead the sisters of the plaintiff and another surviving brother in the suit. The defendants also stated in the written statement that suit is bad for non-joinder of necessary and proper parties. Admittedly, three sisters or their children and Balachandra PW-2 and Varadaju Naidu or his legal heirs have not been made as parties in the suit. Therefore, the suit itself is bad for non-joinder of necessary parties. Accordingly, I answer point No.(iii). Point Nos.(i) and (ii): 44. PW-1 given evidence in support of his case and stated that there is partnership firm run by the joint family, etc., and he has produced various documents. Ex.P-1 is the sale deed executed by one D. Krishnaiya in favour of Govinda Swamy Naidu - suit item No.1. Ex.P-2 is copy of the sale deed dated 21.12.1949 in respect of item No.2 purchased by 31 Govinda Swamy Naidu. and Ex.P-3 is registered sale deed of 1959 in respect of item No.3. Ex.P-4 is the sale deed of Govinda Swamy Naidu pertaining to 20th September 1953. Ex.P-5 is the sale deed of the year 1972 executed by Mangamma - mother of the plaintiff in favour of Chikka Madamma. This sale deed was not challenged by plaintiff where the mother of the plaintiff sold the joint family property in 1972 itself. Therefore, the suit item No.5 is not available for partition as per the contention taken by the defendants. When the sale deeds were not challenged, the question of seeking partition by the plaintiff does not arise. Therefore, the defendants have rightly contended that those properties are not available for partition. 45. Ex.P-6 is the sale deed in the name of Govinda Swamy Naidu executed in the year 1963. The sale deed in favour of Padma and others in respect of item No.1 of ‘B’ Schedule properties which is Ex.P-7. It is pertaining to the first defendant and there is no document to show that this property was purchased out of the joint family nucleus. 32 46. Ex.P-8 is another sale deed dated 27.02.1986 in respect of item No.2 of ‘B’ Schedule properties. Ex.P-9 is the sale deed dated 27.02.1986 in respect of item No.3 of ‘B’ Schedule properties. Ex.P-10 is the sale deed dated 27.02.1986 in respect of item No.4 of ‘B’ Schedule properties. Exs.P-11 to P-19 are all copies of the sale deeds standing in the name of first defendant for having purchased the ‘B’ Schedule properties. All these documents were standing in their name and there is no document produced by the plaintiff to show all those properties have been purchased out of the joint family income. There is no document produced to show what was the income of the joint family per month or per year to show these properties were purchased by the husband of the first defendant in the name of the first defendant out of the joint family income. Exs.P-20, 21, 22, 23, 42 are the copy of the sale deeds for having purchased ‘B’ Schedule properties in the name of the first defendant. Exs.P-44, 45, 47, 48, and 50 are Encumbrance Certificates in respect of those properties. 33 Ex.P-51 is the Wiring Contractor’s Completion Test Report in respect of KEB and Ex.P-52 power sanction letter issued to the first defendant in respect of ‘N’ Schedule properties. Ex.P-53 is the sale deed in respect ‘O’ Schedule properties purchased in the name of third defendant and Ex.P-55 is the sale deed purchased in the name of second defendant. Ex.P- 56 is the Encumbrance Certificate. 47. In the cross-examination, the plaintiff has admitted that at the time of filing the suit, his sisters were alive and they were not made party. He further admitted that no documents were produced to prove the income of the joint family. He also admitted in the cross examination that item Nos.3 and 4 properties were mortgaged way back and husband of defendant No.1 borrowed loan by pledging item Nos.3 and 4. These admissions go to show that item Nos.3 and 4 were standing in the name of defendant No.1 and he has borrowed the loan. Even Ex.D-2 is legal notice issued by Syndicate Bank dated 23.05.2006 which reveals the loan was borrowed and it was discharged. It was also suggested in the 34 evidence that plaintiff was doing he tiles and marbles business in the name of ‘Avinash Tiles and Marbles’ in land in Sy.No.No.22/3 and he has stated he has stopped the business. Admittedly, this property stands in the name of the plaintiff and he was running the business. Even his address is shown in the cause title showing ‘Avinash Tiles and Marbles’ premises. Exs.D-3 and D-4 are the telephone bills, Ex.D-5 insurance obtained by wife of the plaintiff in the said address. When the plaintiff himself given the address as Vidya Peetha Circle, Avinash Tiles & Marbles, now he cannot say he is not running any business and he is not in possession of the said property. Most of the evidence and suggestions were admitted by the plaintiff in the cross- examination. All the documents were marked by the defendants in the cross examination of PW-1 by confrontation. The plaintiff also admitted in the cross- examination that first defendant started a firm in the name of ‘Premiere Agency’ and at that time he was 28 years old and he had no avocation. He has admitted that Exs.D-6 to 35 D-8 are all the documents for dissolution of partnership. Ex.D-9 is the deed of Dissolution of Partnership on 01.01.1991 between plaintiff and first defendant. Ex.D-10 is another deed of Dissolution of Partnership. Ex.D11 is also dissolution of partnership firm deed. Previously the Laxmi Industries were jointly run by the plaintiff and first defendant till 1991 and it was dissolved as per Ex.D-12. 48. Though the plaintiff has denied that he has invested Rs.50,000/- in the Laxmi Industries towards the share in the partnership firm, but later he says he do not remember. He admitted Ex.D-13 the release deed of Varadaraju Naidu, Ex.D-14 release deed of Balachandra. He also admitted Ex.D-15 deed of Dissolution of Partnership between plaintiff and Purshottam - the husband of first defendant. He further admits Ex.D-16 deed of Dissolution of Partnership of Laxmi Marketing Agency. Exs.D-17 to D-19 are the documents i.e., charge sheet pertaining to the Premiere Agencies for recovery of arrears of tax. Ex.D-20 is the legal notice by the Syndicate Bank. 36 49. The plaintiff further admits that Premiere Agency was established in the year 1975 where, himself and his brother were partners, the first defendant invested her own money which was given by her father and this admission goes to show that the first defendant invested money obtained from her father and started business with the plaintiff which reveals that she is having own income. PW-1 further admitted that he has not produced any document to show that immovable properties were purchased by the first defendant in her name by her husband - the brother of the plaintiff out of the joint family nucleus. The entire evidence and admissions made by PW-1 in the cross-examination he has continuously admitted all the facts and suggestions made by the defendants’ counsel regarding properties standing in the name of the first defendant has been acquired by her and are not purchased out of the joint family nucleus. When there is no document produced, the question of claiming that the said properties were joint family properties does not arise. 37 50. It is also suggested and admitted by PW-1 that some of the properties were acquired for forming the NICE road which stands in his name and he has received the compensation. Though he has stated that the award passed by the BDA in his name and he has stated that he was not aware, but the fact remains that the BDA acquired the portion of the land and award has been passed in the name of the plaintiff which release that ‘C’ Schedule properties stand in the name of the plaintiff whereas ‘B’ Schedule properties stand in the name of the defendants which were purchased by the first defendant out of her own income. 51. 51. The plaintiff also further admitted in the cross- examination dated 22.06.2017 that he has not produced any document to show 30 firms were belonging to joint family and he further stated that all the documents were with his brother. He further stated Purshottam was maintaining the family and he has not enquired. He further admitted he has no hindrance to collect those documents. He further admits that in Sy.No.22/2 he is doing business. Though he has 38 stated that the first defendant paid the amount for purchase of the properties out of the joint family account, but the fact remains the properties were purchased from the account of the defendant No.1. From the evidence of PW-1, the defendants got marked most of the documents which were admitted by the plaintiff. Finally he has also admitted that he has not produced any document to show the first defendant was running the business in the name of joint family which clearly goes to show that the evidence suggest by the plaintiff without any documents and except claiming all the properties were joint family properties. 52. The final suggestion made by the defendants’ counsel has been denied by the plaintiff that ‘C’ Schedule properties are belonging to the plaintiff, ‘B’ Schedule properties are belonging to the first defendant which are her self acquired properties and ‘A’ Schedule properties are belonging to the father and he has filed a false case to harass the defendants. 39 53. PW-2 who is uncle of PW-1 and also brother of first defendant’s husband admitted the release deed Ex.P-36 executed on 24.06.1981. 54. On the other hand, the case of the defendant was that the ‘B’ Schedule properties have been purchased by the first defendant in her name out of her own income as she has started the business, earning income and some of the business were run in partnership firm with the plaintiff later it was dissolved and she has purchased various properties stated in the ‘B’ Schedule properties. Admittedly, ‘C’ Schedule properties stand in the name of the plaintiff and it is clear case of the defendants that there was family partition between the plaintiff and his brother - the husband of the first defendant as per Ex.D-62 dated 02.08.1987. On perusal of this document, though it is an unregistered document, but it reveals there are properties pertaining to the joint family and the plaintiff as well as his brother Purshottam - husband of the first defendant, settled among them, which is stated as under: 40 “TERMS OF FAMILY SETTLEMENT The following are the understandings reached between M/s Subramanyam and Purushottam on the family settlement. (1) Property at west Anjaneya Temple Road: It is agreed that Sri. Purushotham to stay in the building at no. 38/1 measuring dimension 40*120ft and in exchange a site measuring 40x40ft in the same property (i.e., 40*40ft) in which a building of Maruthi dyeing factory is located be given to Sri Subramanyam. (2) Regarding Land at Sunkenahalli (Touring talkies and tiles factory area) The bldg. portion (Tiles Building) be given to Sri. Subramanyam. Land rent that accrues in future from Sri. Manjunath touring talkies on this land be shared equally. In addition, the income on partnership on the Touring Talkies will also be shared equally. The land in survey no.22/2-3 in this property is in litigation before the Court. In lieu of the land transferred along with building to Sri. Subramanyam and the Court cost is being borne by Sri. Purushotham, it is agreed 60% of the land be given to Sri. Purushotham and 40% to Sri. Subramanyam. 41 (3) Business Partition: It is agreed that the Tiles factory along with the existing stock, machinery etc., be given to Sri. Subramanyam and cement and sheets business along with the existing stock be given to Sri. Purushotham. (4) KEB Bldg with Site The Bldg, & land at KEB Layout be given to Sri. Purushotam in place of this, a site at Khadi board be given to Sri. Subramanyam which is already registered in his name. (5) Father's (Late Sri. Govindaswamy) property at Katharaguppa Village: The land at survey no. 10/2 is in dispute before the Court. Entire litigation on this account will be looked after by Sri. Purushotham. In lieu of this, Sri. Purushotham will get 65% of the share and 35% by Sri. Subramanyam on the results of the Court decision. The higher percentage of share to Sri. Purushotam is in lieu of talking the responsibility of handling the case personally and also bearing all expenses towards Court litigation. (6) Regarding land at Uttarahalli: Out of the total extent of land available in this village 5 acres will be 42 given to Sri. Subramanyam which includes the extent of land which is already registered in his name. The remaining extent of land will be enjoyed by Sri Purushotham. These 5 acres of land will be transferred to Sri. Subramanyam free of any encumbrance or litigation. It is further agreed that Sri Purshotham to make a provision for a right of way in case there is no road for movement to the land of Sri Subramanyam. (7) Vehicles: Matador van No MYA 8452, Motor Cycle MVV 6370, one Luna be given to Sri. Subramanyam. Ambassador Car NO CAI 4566, Jeep no. CKI 1719 Motor cycle NO HEV 6424 and one Luna and Lambretta Scooter be given to Sri Purushotham (8) Land pertaining to the case of Sri. Subba Raju: This land at Sunkenahalli, Survey No. 2212 is in dispute before the court. It is agreed that sri. Purushotham to handle the case personally and the returns if any on the outcome of the decision of the Court will be shared at the rate of 65% and 35% by Sri Purushotham and Subramanyam respectively. The extra Percentage of share to Sri Purushotham is in lieu of handling the case and also bearing all Court cost/expenses etc. 43 (9) Maintenance to the mother of M/s Purushotham and Subramanyam: In lieu of maintenance of their mother, it is agreed to keep Rs. One lakh in Fixed deposit in her name and the deposit will continue till her death. The interest accrues on the fixed deposit will be utilized for her maintenance. This amount will be shared equally by her three daughters after the death of their mother. (10) Office accommodation at Tiles Factory: The office furniture available in the Tiles Factory (Tantara) be divided equally. Sri. Subramanyam has no objection to permit Sri. Purushotham to continue his office activities in the same building for one year from the date of registering this deed. (11) All the loans/liability which is existing on the property/personal be borne by Sri. Purushotham. Sri. Subramanyam has no claim for the outstanding if any by the customers and others Addition to Sl.No.2: It is agreed that a right way be added to Sri. Subramanyam on the road leading to Touring Talkies and Tiles Factory till the Touring Talkies license continues. This right will not be available to Sri. 44 Subramanyam after the expiry of the Touring Talkies license. Agreed on the second day of August 1987 in presence of the following witnesses.” 55. On perusal of the document Ex.D-62 where the properties belongs to the family have been shared by the plaintiff as well as his brother and especially it reveals from the said document the property in Sy.No.22/2 there were two portions, a tiles factory was also running which is also having a touring talkies and it is stated that the income of the touring talkies shall be shared in the 60 and 40 ratio i.e., 40% to the plaintiff and 60% to Purshottam until license exists. Thereafter, the property should go to Purshottam. Likewise, Katriguppe property was under litigation, it was also said by them. Business of the tiles should go to the plaintiff, the cement sheet business shall go to Purshottam. 56. Admittedly, the plaintiff runs the tiles business and his address is also shown as Avinash Tiles. This clearly shows that there was partition between the plaintiff and the 45 husband of defendant No.1. Even they shared the vehicles, lands and changed the houses. This document clearly goes to show that there was previous partition and settlement between the plaintiff and first defendant’s husband in the year 1987 itself. Though this document is disputed by the plaintiff, but the other documents of the defendants go to show that after the family partition, most of the businesses were started in the partnership firm by the first defendant and the plaintiff after 1987 onwards and earlier businesses were shared by them, the properties also shared by them. Admittedly, the plaintiff purchased the properties in his name subsequent to the year 1987, which clearly reveals there is no joint family exists and there was previous partition between plaintiff and Purshottam and all the properties mentioned in ‘B’ Schedule properties were not joint family properties and the properties mentioned in ‘C’ Schedule properties belongs to the plaintiff and the properties item Nos.5 and 6 are not available due to the formation of road 46 and selling the property by the mother of the plaintiff in 1972 itself. 57. The evidence of DW-1 clearly reveals that the defence statement made by them especially the panchayat parikath dated 02.08.1987, though the defendants admitted the ‘A’ Schedule properties item Nos.1 to 4 left by their father Govinda Swamy Naidu, but subsequent to panchayat parikath, they have divided the properties. Item No.5 of ‘A’ Schedule Properties sold by his grandmother in 1972 itself. Therefore, it is contended that the suit schedule properties are not available for partition. There is nothing elicited in the cross-examination to disbelieve the evidence of DW-1. 58. Therefore, in view of the evidence on record and admissions made by the plaintiff in his cross-examination and evidence of defendants it is clear that after 1987, there is no joint family exists and the ‘A’ Schedule properties item No.5 is not existing and item Nos.1 to 4 belongs to the joint family of father of the plaintiff and father-in-law of the first defendant i.e., Govinda Swamy Naidu. But after the partition 47 in the year 1987, the properties are divided by both of them. Therefore, the plaintiff failed to prove that the plaintiff and defendants are Hindu joint family and the properties are joint family properties. On the other hand, the defendants succeeded in proving that ‘B’ Schedule properties belong to the defendants and item Nos.3, 5 and 6 are not available for the partition and not existing in view of the previous partition. 59. The suit is also bad for non-joinder of necessary parties and Ex.D-2 also proves item No.M property was self acquired property of the defendants. 60. The learned counsel for the appellant has contended that the trial court ought to have decreed the suit of the plaintiff in part as defendant No.1 admitted in the written statement that item Nos.1 ,2 and 4 of ‘A’ Scehdule properties are belonging to the joint family and it is stated that plaintiff is entitled for half share. Further, it is contended that the trial court committed error in dismissing 48 entire suit instead of answering issue No.1 partly in the affirmative and allowing the suit in part. 61. On perusal of the written statement, though the first defendant has stated that item Nos.1, 2 and 4 of ‘A’ Schedule properties were joint family properties, but it is stated that as per Ex.D-62 panchayat parikath the said properties were divided and shared by both plaintiff and husband of first defendant including all other properties i.e., house property, business, vehicles, etc. Such being the case, merely admitting that the said three items were joint family properties, the suit cannot be decreed either in part or in full since Ex.D-62 shows that there was family partition between them and they were acted upon as they started independent businesses and partnership firms by investing amount and dissolving the partnership firms. Thereafter, the plaintiff has also purchased properties in his name and defendants also purchased properties in their name which clearly reveals that the partition was acted upon and there is no existence of joint family of the plaintiff and the defendants. Therefore, 49 the question of granting any share in ‘A’ Schedule properties and granting the decree does not arises. 62. I.A.No.1/2025 filed under Order 41 Rule 27 CPC by the appellant for producing additional documents is not useful to the appellant’s case. Even if considered, it will not support his case to decree the suit. 63. Considering these aspects, the trial court, by appreciating the evidence on record, rightly dismissed the suit of the plaintiff and the judgment of dismissal of the suit does not call for interference. Accordingly, I proceed to pass the following: ORDER I.A.No.1/2025 filed by the appellant-plaintiff under Order 41 Rule 27 CPC is dismissed. The appeal filed by the appellant-plaintiff is dismissed. Sd/- (K.NATARAJAN) JUDGE NJ/SWK CT:SI