1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30 TH DAY OF MARCH 2015 BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY REGULAR FIRST APPEAL No.460 OF 2009 CONNECTED WITH REGULAR FIRST APPEAL No.1219 OF 2009 REGULAR FIRST APPEAL No.1085 OF 2009 IN R.F.A.No.460/2009 BETWEEN: Sri. D. Ramakrishna, Son of Late V.L.Dhanram, Aged about 81 years, Resident of No.35/7, Longford Road, Bangalore 560 025. … APPELLANT (By Shri. T.V.Ramanujan, Senior Advocate for Smt. B.V. Vidyulatha, Advocate) AND: 1. D. Balakrishna, Son of Late V.L.Dhanram, Since dead by his
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.460 OF 2009
CONNECTED WITH
REGULAR FIRST APPEAL No.1219 OF 2009
REGULAR FIRST APPEAL No.1085 OF 2009
IN R.F.A.No.460/2009 BETWEEN: Sri. D. Ramakrishna, Son of Late V.L.Dhanram, Aged about 81 years, Resident of No.35/7, Longford Road, Bangalore 560 025. … APPELLANT (By Shri. T.V.Ramanujan, Senior Advocate for Smt. B.V. Vidyulatha, Advocate) AND: 1. D. Balakrishna, Son of Late V.L.Dhanram, Since dead by his
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Legal Representatives: 1a) Ramani .B, Wife of Late D. Balakrishna, Aged about 79years, Residing at No.35/4, Langford Cross Road, Bangalore 560 025. 1b) Dayakar .B, Son of Late D. Balakrishna, Aged about 62 years, Residing at No.35/4, Langford Cross Road, Bangalore 560 025. 1c) Renuka .P, Wife of Late B. Prabhakar, (son of Late D. Balakrishna), Aged about 57 years, Residing at No.35/4, Langford Cross Road, Bangalore 560 025. 1d) Amit, Son of Late B. Prabhakar, Aged about 34 years, Residing at No.35/4, Langford Cross Road, Bangalore 560 025. 1e) Divya, Daughter of Late B. Prabhakar, Aged about 30 years, Residing at No.S/2,
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Robideep Apartments, Nagavara Palya Main Road, C.V.Ramannagar, Bangalore 560 093. [amended vide Court order Dated 27.2.2015] 2. Sri. Devaraj Dhanram, Son of Late V.L.Dhanram, Since dead by his Legal Representatives: 2a) Smt. Geetha Devaraj, Wife of Late Devaraj Dhanaram, Aged 67 years, 2b) Sri. Deepak Devaraj, Son of Late Devaraj Dhanaram, Aged 43 years, Both are residing at No.35/9, Langford Road, Bangalore 560 025. 2c) Ravathi Manohar, Daughter of Late Devaraj Dhanaram, Aged 46 years, Residing at No.16, Wallace Garden, 2nd Street, 1000 lights, Nungambakkam, Chennai 600 006. 2d) Arthi Werner Bucher, Daughter of Late Devaraj Dhanaram, Aged 40 years,
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Residing at Zimmerei, Obernauerstr 31, 6010 Kriens, Switzerland. [amended vide court order Dated 28.2.2012] 3. Sri. D. Vasudevan, Son of Late V.L.Dhanram, Joint Managing Director, M/s. Firebricks and Potteries (Private) Limited, Major, Resident of No.35/2A, Longford Road, Bangalore 560 025. 4. Sri. D. Sampath, Son of Late V.L.Dhanram, Major, Resident of No.35/3A, Longford Road, Bangalore 560 025. 5. Sri. D. Gopinath, Son of Late V.L.Dhanram, Major, Resident of No.3/1, Longford Road, Bangalore 560 025. Mrs. K. Dhanram, Since deceased by Legal Representatives: 6. Lakshmi Baj, Wife of Krishnaraj,
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Hindu, Aged 76 years, Resident of No.32, Joshies St., Dr. Thirumurthi Nagar, Nungambakkam, Chennai – 34. 7. T. Vanajakshi, Wife of Thiruvankarasu, Hindu, Aged 63 years, C-10, Nelson Chambers, Ambji, Chennai. 8. M/s. Firebricks and Potteries (Private) Limited, No.35/4, Langford Road, Bangalore 560 025, Represented by its Chairman, Sri. D. Balakrishna. …RESPONDENTS (By Shri. B. Ramesh, Advocate for Respondent Nos. 2(a to d) Shri. K.G.Raghavan, Senior Advocate for Shri. Abhijit, Advocate for M/s. Sagar Associates, for Respondent Nos. 3, 6 and 8 Shri. Shanmukhappa, Advocate for M/s. Kesvy and Company for Respondent Nos. 2(a and b) Shri. T.P. Vivekananda, Advocate for Respondent Nos. 6 to 7 Smt. Deepti .A, Advocate for M/s. Crest Law Partners for Respondent Nos. 4 and 5 Smt. Sheetal Soni, Advocate for Legal Representatives of deceased Respondent Nos. 1 (a to e) )
*****
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This Regular First Appeal filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 29.11.2008, passed in O.S.No.874/1990 on the file of the I Additional City Civil and Sessions Judge, Bangalore, dismissing the suit for declaration, partition and separate possession. IN R.F.A.No.1219/2009 BETWEEN: Sri. Devaraj Dhanram, Son of Late V.L.Dhanram, Since dead by his Legal Representatives: a) Smt. Geetha Devaraj, Wife of Late Devaraj Dhanaram, Aged 67 years, b) Sri. Deepak Devaraj, Son of Late Devaraj Dhanaram, Aged 43 years, Both are residing at No.35/9, Langford Road, Bangalore 560 025. c) Ravathi Manohar, Daughter of Late Devaraj Dhanaram, Aged 46 years, Residing at No.16, Wallace Garden, 2nd Street, 1000 lights, Nungambakkam, Chennai 600 006.
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d) Arthi Werner Bucher, Daughter of Late Devaraj Dhanaram, Aged 40 years, Residing at Zimmerei, Obernauerstr 31, 6010 Kriens, Switzerland. [amended vide court order Dated 07.08.2012] …APPELLANTS (By Shri. Shanmukhappa, Advocate for M/s. Kesvy and Company) AND: 1. Sri. D. Ramakrishna, Son of Late V.L.Dhanram, Aged about 81 years, Resident of No.35/7, Langford Road, Bangalore 560 025. 2. D. Balakrishna, Son of Late V.L.Dhanram, Since dead by his Legal Representatives: 2(a) Ramani .B, Wife of Late D. Balakrishna, Aged about 79years, 2(b) Dayakar .B, Son of Late D. Balakrishna, Aged about 62 years, 2(c) Renuka Prabhakar,
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Wife of Late B. Prabhakar, Aged about 53 years, 2(d) Amit, Son of Late B. Prabhakar, Aged about 34 years, 2(e) Divya, Daughter of Late B. Prabhakar, Aged about 31 years, All are residents of No.35/4, Langford Road Cross, Shanthinagar, Bangalore 560 025. [amended vide Court order Dated 27.2.2015] 3. Sri. D. Vasudevan, Son of Late V.L.Dhanram, Joint Managing Director, M/s. Firebricks and Potteries (Private) Limited, Major, Residing at No.35/2A, Longford Road, Bangalore 560 025. 4. Sri. D. Sampath, Son of Late V.L.Dhanram, Major, Resident of No.35/3A, Longford Road, Bangalore 560 025.
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5. Sri. D. Gopinath, Son of Late Dhanram, Major, Resident of No.3/1, Conwell Road, Bangalore 560 025. 6. Lakshmi Bai, Wife of Krishnaraj, Hindu, Aged 76 years, Resident of No.32, Joshies St., Dr. Thirumurthi Nagar, Nungambakkam, Chennai 600 100. 7. T. Vanajakshi, Wife of Thiruvankarasu, Hindu, Aged 63 years, C-10, Nelson Chambers, Ambji, Chennai 600 100. 8. M/s. Firebricks and Potteries (Private) Limited, No.35/4, Langford Road, Bangalore 560 025, Represented by its Chairman, Sri. D. Balakrishna. …RESPONDENTS (By Shri. T.V. Ramanujan, Senior Advocate for Smt. B.V.Vidyulatha, Advocate for Respondent No.1; Shri. K.G.Raghavan, Senior Advocate for Shri. Abhijit, Advocate for M/s. J. Sagar Associates for Respondent No.8;
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Shri. T.P. Vivekananda, Advocate for Respondent Nos. 6 and 7; Smt. Deepti. A, Advocate for M/s. Crest Law Partners, for Respondent Nos.4 and 5; Shri. B.G. Sriram, Advocate for Respondent No.2 Vide order dated 23.4.2010 service of notice to Respondent no.3 held sufficient)
***** This Regular First Appeal filed under Section 96 read with
Order XLI Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 29.11.2008, passed in O.S.No.874/1990 on the file of the I Additional City Civil and Sessions Judge, Bangalore, dismissing the suit for declaration and partition. IN R.F.A.No.1085/2009 BETWEEN: T. Vanajakshi, Wife of Thiruvankarasu, Aged 63 years, C-10, Nelson Chambers, Ambji, Chennai. …APPELLANT (By Shri.T.P.Vivekananda, Advocate) AND: 1. D. Balakrishna, Son of Late V.L.Dhanram, Chairman, Firebricks and Potteries (Private) Limited, Major, resident of No.35/4, Longford Road, Bangalore 560 025.
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2. Sri. Devaraj Dhanram, Son of Late V.L.Dhanram, Major, resident of No.35/9, Longford Road, Bangalore 560 025. 3. Sri. D. Vasudevan, Son of Late V.L.Dhanram, Joint Managing Director, M/s Firebricks and Potteries (Private) Limited, Major, resident of No.35/2A, Longford Road, Bangalore 560 025. 4. Sri. D. Sampath, Son of Late V.L.Dhanram, Major, resident of No.35/3A, Longford Road, Bangalore 560 025. 5. Sri. D. Gopinath, Son of Late V.L.Dhanram, Major, Resident of No.3/1, Conwell Road, Bangalore 560 025. Mrs. K. Dhanram, Since deceased by Legal Representatives: 6. Lakshmi Bai,
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Wife of Krishnaraj, Hindu, aged 76 years, Resident of No.32, Joshies St., Dr. Thirumurthi Nagar, Nungambakkam, Chennai- 34. 7. M/s Firebricks and Potteries (Private) Limited, No.35/4, Langford Road, Bangalore 560 025, Represented by its Chairman, Sri. D. Balakrishna. 8. Sri. D. Ramakrishna, Son of Late V.L.Dhanram, Aged about 81 years, Resident of No.35/7, Longford Road, Bangalore 560 025. …RESPONDENTS (By Shri. T.P.Ramanujan, Senior Advocate for Smt. B.V.Vidyulatha, Advocate for Respondent No.8; Smt. Deepti .A, Advocate for M/s. Crest Law Partners for Respondent No.5; Respondent Nos. 1, 3, 4 and 6 are served; Shri. K.G.Raghavan, Senior Advocate for Shri. Ahijit, Advocate for M/s. J.Sagar Associates for Respondent No.7)
***** This Regular First Appeal filed under Section 96 read with
Order XLI Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 29.11.2008, passed in O.S.No.874/1990 on the file of the I Additional City Civil and Sessions Judge,
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Bangalore, dismissing the suit for declaration and partition and separate possession. These Regular First Appeals having been heard and reserved on 27.2.2015 and coming on for pronouncement of Judgment this day, the Court delivered the following:-
J U D G M E N T
These appeals are decided by this common judgment as they
are preferred challenging the same judgment.
2. The appeal in RFA 460/2009 is filed by the plaintiff. The
appeals in RFA 1219/2009 and RFA 1085/2009 are filed by the
defendant no.2 and defendant no.6(b), respectively.
3. The parties are referred to by their rank before the trial
court for the sake of convenience.
4. The suit was filed seeking the relief of declaration that the
plaintiff and defendants 1 to 6 were the absolute owners of the suit
schedule properties and for partition and separate possession of the
same. The suit properties were the land bearing Sy.No.73 of
Yeshwanthpur Village, Bangalore North Taluk, measuring 6 acres
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and 1 gunta and land bearing Survey No.70/1 of Yeshwanthpura
village, Bangalore North Taluk, measuring 1 acre.
The plaintiff claimed that he was entitled to 1/7th share in the
suit schedule property. Defendant Nos.1 to 5 were the brothers of
the plaintiff and the defendant No.6 was the mother of the plaintiff.
M/s. Fire Bricks and Potteries Private Limited was arrayed as
defendant no.7.
It was the plaintiff’s case that his father Late V.L.Dhanram
Modaliar and his father’s brother V.L.Venugopal Modaliar had
purchased 12 acres and 2 guntas of land in land bearing survey
No.73 of Yeshwanthpur Village, under a registered sale deed dated
3.2.1938.
It was claimed that V.L.Dhanram Modaliar and
V.L.Venugopal Modaliar, along with their family members had
promoted two companies, namely, M/s. Fire Bricks and Potteries
Private Limited and M/s. Standard Tile and Clay Works Limited.
The shares in the said two companies were held jointly by
V.L.Dhanram Modaliar and V.L.Venugopal Modaliar. Subsequently,
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by an arrangement between the two brothers, M/s. Fire Bricks and
Potteries Private Limited (defendant no..7) came to be owned by
V.L.Dhanram Modaliar and his family members and M/s Standard
Tile and Clay Works Limited came to be owned by V.L.Venugopal
Modaliar and his family members.
M/s Standard Tile and Clay Works Limited, represented by its
Managing Director V.L. Venugopal Modaliar, sold the property to
defendant no.7 - Company, which was represented by V.L.Dhanram
Modaliar, the plaintiff’s father, under a registered Sale Deed dated
14.4.1945. It was urged by the plaintiff that V.L.Venugopal Modaliar
was entitled to only half share in item no.1 of the suit schedule
properties, namely, 6 acres and 1 gunta and hence, V.L.Venugopal
Modaliar could not have transferred the entire extent of 12 acres 2
guntas to defendant no.7. Therefore, the plaintiff claimed that he
was entitled to partition and separate possession of 1/7th share in the
suit schedule properties.
It was further urged by the plaintiff that his father
V.L.Dhanram Modaliar was granted occupancy rights in respect of
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land bearing Sy.No.70/1, Yeshwanthpura Village, Bangalore North
Taluk, measuring 1 acre, item no.2 of the suit schedule properties.
The defendant Nos.1 and 3 to 7 had entered appearance on
service of summons and had filed a common written statement. It
was the case of the said defendants that both V.L.Dhanram Modaliar
and V.L.Venugopal Modaliar acquired the property under a
registered sale deed dated 3.2.1938 (Exhibit D1) for and on behalf
of M/s Standard Tile and Clay Works Limited, though the said
property was purchased in their individual names. This was on
account of the fact that the aforesaid company was not incorporated
as on the date of purchase. However, the land bearing Sy.No.73 of
Yeshwanthpura Village, Bangalore North Taluk, measuring 12 acres
and 2 guntas had always been in the possession and occupation of
M/s. Standard Tile and Clay Work Limited, since its incorporation
till the property was sold to the defendant no.7 – company, under a
registered sale deed dated 14.4.1945. It was evident from the
revenue records that from 14.4.1945, the defendant no.7 - company
had been in possession and occupation of the land bearing Sy.No.73.
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It was stated that there were two partitions amongst the legal
heirs of V.L.Dhanram Modaliar i.e., the plaintiff’s father, where
under the present suit schedule property was neither included in the
schedule of properties that were partitioned, nor expressly excluded.
The first partition was by way of a deed of partition dated 29.9.1962.
However, in the said deed, the parties thereto had expressly agreed
that the said partition was only a partial partition.
Subsequently, in the year 1969, the plaintiff is said to have
filed a civil suit in O.S.No.56/1969 seeking partition of the joint
family property. A compromise was said to have been arrived at by
the parties thereto. In the said Compromise Petition, at paragraph
11, the parties to the said petition are said to have declared as below:
“Parties hereby confirm that there are no other
property – movable or immovable whatsoever to be divided
amongst them and belonging to joint family”.
The plaintiff is said to have served defendant no.7 in various
capacities, including as the Managing Director of the said company
till 16.1.1980. During his tenure as a director, the defendant no.7
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had mortgaged the suit schedule property in favour of Karnataka
State financial Corporation to secure a loan. The mortgage deeds
dated 2.6.1961 and 2.1.1970 had also been executed by the plaintiff
as a director of the defendant no.7 - company. In the said mortgage
deeds, the plaintiff had represented to the secured creditor that the
defendant no.7 - company was the absolute owner of the mortgaged
property.
The defendant no.2 had not filed written statement. During
the pendency of the suit, the sixth defendant is said to have died
and her daughters have been impleaded as defendants no.6(a) and
6(b). They are said to have filed a common written statement and
have also prayed for a decree of 2/7th share in the suit schedule
property.
On the basis of the above pleadings, the court below is seen
to have framed the following issues:
“1. Does defendants prove title of 7th defendant tot he suit property? 2. Whether the suit claim is barred by limitation? 3. Whether the valuation and payment of Court fee are insufficient? 4. Does the plaintiff prove joint title or possession of the suit property?
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5. Whether the plaintiff is entitled for the partition and possession of 1/7th share? 6. To what reliefs the parties are entitled?”
The trial Court had answered Issues Nos. 1 and 2 in the
affirmative and 3 and 4 in the negative and answered issue no.5 by
holding that the plaintiff is not entitled to partition and possession
of 1/7th share in the suit schedule properties
It is that judgment which is under challenge in these appeals.
5. The learned Senior Advocate Shri T.V.Ramanujam
appearing for the learned counsel for the appellant contends that the
trial court had taken up issues 1,4 and 5 together and had given the
following reasons to dismiss the suit.
“Further, it is an undisputed fact that subsequently
both the brothers V.L. Dhanram Mudaliar, father of
plaintiff and Defendant Nos.1 to 5 and V.L. Venugopal
Mudaliar have formed M/s. Firebricks and Potteries (P)
Ltd. and M/s. Standard Tile and Clay Works (P) Ltd.”
This finding is not supported by any evidence. The
learned judge has used the word ‘subsequently’, thereby
observing that as if the two companies were formed by the two
brothers after Exhibit D1 dated 03.02.1938. There is no
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evidence to support this observation or if it is called as a
finding, it is not proved by any evidence. On the other hand,
even as seen from the written statement of Defendants 1 and 3
to 7 in para 8, it is clearly stated that the companies were
already incorporated and the two brothers acquired the
property not for their own personal benefit but acquired as
directors of the companies incorporated under the provisions of
the Companies Act. There is also evidence to show that the
seventh defendant company was incorporated before
03.02.1938. The seventh defendant company has been
incorporated in the year 1935 as seen from Exhibit D-8 at
page 107 of the typed set of documents and also as seen from
page no.258. which are balance sheets of the seventh defendant
company. Thus, there is documentary evidence to show in the
form of balance sheets filed by the defendants themselves that
the seventh defendant was incorporated in the year 1935 and
it is seen from para 8 of the written statement that M/s.
Standard Tile and Clay Works (P) Ltd. was already
incorporated under the Indian Companies Act, 1913, and the
two brothers were directors.”
The learned Senior Advocate would draw attention to para
6.01, at page 15 of the judgment, wherein the learned trial Judge had
posed a question as follows:
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“So, now we have to consider that whether both V.L. Dhanram
Mudaliar and V.L. Venugopal Mudaliar have purchased the entire
Sy.No.73 of Yeshwantpura Village wherein Item 1 of suit schedule
property is situated in their individual capacity or as directors of M/s.
Standard Tile and Clay Works (P) Ltd. and M/s. Firebricks and
Potteries (P) Ltd.”.
The very framing of this question, it is contended, was
erroneous. It was nobody’s case that V.L. Dhanram Mudaliar and
V.L. Venugopal Mudaliar purchased Item no.1 of the suit schedule
property under Exhibit D1 – a sale deed, as directors of both the
companies. The learned Judge had further proceeded as follows:
“But it is the case of the plaintiff himself that after purchasing
the said land Sy.No.73 by V.L. Dhanram Mudaliar and V.L.
Venugopal Mudaliar, both of them had promoted two companies known
as M/s. Standard Tile and Clay Works (P) Ltd. and M/s. Firebricks
and Potteries (P) Ltd. So, it is clear that at the time of purchasing the
suit schedule property, these two companies were not at all in existence
and therefore, Exhibit P1 is in the individual names of V.L. Dhanram
Mudaliar and V.L. Venugopal Mudaliar and not as representatives of
the company. But subsequently, it is the case of the plaintiff himself that
the two companies were promoted by V.L. Dhanram Mudaliar and
V.L. Venugopal Mudaliar.”
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The above finding, it is contended, is on the face of it,
erroneous.
It is pointed out that it was not the case of the plaintiff that, at
the time of Exhibit P1, the two companies were not in existence. It
was not the case of the plaintiff that the two companies were
promoted after Exhibit P1. The two companies were very much in
existence at the time of Exhibit P1. And even as per para 8 of the
written statement, the two brothers were directors of the two
companies incorporated under the Companies Act. The finding is
thus contrary to the evidence available on record and it is not
supported by any evidence. Hence, it is contended that this
reasoning and the finding based on this erroneous reasoning is liable
to be set aside.
It is further contended that the second reason given is that
Item No.1 of the suit schedule property had been mortgaged by the
seventh defendant under Exhibits D-5 and D-6 showing it as the
property of the seventh defendant and hence, Item No.1 was the
property of the seventh defendant. The question was whether the
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seventh defendant had become the owner under Exhibit D2. If the
seventh defendant, proceeding on the basis that it had title under
Exhibit D-2, and had mortgaged the suit property under Exhibit D-5
and D-6, and plaintiff and defendants 1 to 5 had stood as guarantors,
it would not create title in favour of the seventh defendant, if
Exhibit D-2 had not, in fact, created title. Exhibits D-5 and D-6 are
seen to be mortgage deeds in a printed format. Apart from that, the
plaintiff and Defendants 1 to 6 were shareholders and plaintiff and
defendants 1 to 5 were in the management of the company. They
were all family members. No third-party was involved. There were
no separate deeds of guarantee. It is not stated as to why the
plaintiff and defendants 1 to 5 or some of them had been asked to
stand as guarantors. Therefore, if Exhibit D-2 did not convey title
to the seventh defendant, the mere mortgage of the property by the
seventh defendant claiming as owner and the plaintiff and
defendants 1 to 5 joining in the said mortgage deed, would not
confer title to the seventh defendant, if the seventh defendant
otherwise had no title under Exhibit D-2.
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The third reasoning given by the Judge is that there was a suit
in O.S.No.56/1969, covered by Exhibits D-38 and D-39 and in that
suit, the suit properties were not included and hence the suit
properties are not the joint family properties, but is the property of
the seventh defendant. This is also erroneous. In 1962, there was a
partial partition covered by Exhibit P-12. A reading of Ex.P-12
makes it clear that the partition deed was only in respect of one
property namely No.1, Langford Road, Civil Station, Bangalore and
a vacant piece of land, south of it as acquired by Dhanram Mudaliar
out of his self-acquired funds. The partition deed recites that the
two properties were amalgamated and a house was constructed and a
private road was laid by late Dhanram Mudaliar and constructions
were put up out of their separate funds and that it was only a partial
partition. It is stated that there was a portion which was not the
subject matter of the partition. Hence, merely because the suit
property has not been included in O.S.No.56/1969, it could not be
presumed that the suit properties were not available for partition and
they are the properties of the seventh defendant.
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6. On the other hand, the learned Senior Advocate Shri.
K.G.Raghavan, appearing for the counsel for Defendant no.7
contends that the appeals are liable to be dismissed on the following
grounds:
(i) Burden of proof;
(ii) Doctrine of estoppel as enshrined in Section 115 of the
Indian Evidence Act, 1872;
(iii) Sale of property by a ostensible owner as contemplated
under Section 41 of the Transfer of Property Act, 1882 (Hereinafter
referred to as the ‘TP Act’, for brevity);
(iv) Effect of not seeking declaration on the title to the suit
schedule properties by the plaintiff within the limitation period;
(v) Non-maintainability of second suit for general partition
amongst the family members;
(vi) Limitation.
(i) It is contended that one of the grounds on which the trial
court has dismissed the suit is based on the proposition of law that
the plaintiff has to prima facie show that the suit schedule properties
26
have been held jointly by them. In fact, the plaintiff has expressly
admitted in his cross examination, that he has not produced any
document to show that item no.1 property was standing in the
names of legal representatives of the father of the plaintiff. He has
also further admitted that he has not produced any document before
the court to show that the occupancy right, in respect of item no.2
of the schedule, was granted in favour of his late father.
On the other hand, the defendant no.7 - company has proved
beyond reasonable doubt that the suit schedule properties are its
absolute properties. The following documents have been produced
before the trial court by the defendant no.7 - company for
establishing its title to the suit schedule properties:
a) Sale deed dated 14.4.1945 (Exhibit D-2)
b) Mortgage deeds dated 2.6.1961 and 2.1.1970 [Exhibits
D-5 and D-6 respectively]: Both the deeds were signed by the
plaintiff and other directors on behalf of the defendant No.7
company and this fact had been admitted by the plaintiff himself in
his cross examination;
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c) Compromise Petition filed by the plaintiff and other
defendants in the suit for partition bearing O.S.No.56/1969. In the
said petition, the plaintiff and other defendants too have expressly
confirmed, in paragraph 11 of the petition, that there are no other
property-movable or immovable whatsoever, to be divided amongst
them and belonging to joint family.
d) Grant certificate [Exhibit D-46] in respect of the item
no.2 property, confirming that the grant was in favour of the
defendant no.7 - company.
Therefore, it is contended that the trial court has rightly held
that when the plaintiff has asserted that the suit schedule properties
are joint family properties, the burden is on the plaintiff to
demonstrate that suit schedule properties are joint family properties.
(ii) It is further contended that one of the most pertinent
questions for consideration is whether the plaintiff could question
the entitlement of the defendant no.7 - company to the suit schedule
property in the light of the conduct of his late father V.L.Dhanram
Modaliar and V.L.Venugopal Modaliar having executed the Sale