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RFA No. 190 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR JUSTICE K. SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.190 OF 2018 (PAR)
BETWEEN:
BASAVARAJ SINCE DECEASED, BY HIS LEGAL REPRESENTATIVES:
SMT. SUMITHRA W/O. LATE BASAVARAJU, AGED ABOUT 64 YEARS.
SMT. SUMALATHA D/O. LATE BASAVARAJU, AGED ABOUT 42 YEARS.
SMT. ROOPA D/O. LATE BASAVARAJU, AGED ABOUT 39 YEARS.
SRI SUSHVIN BABU D/O. LATE BASAVARAJU, AGED ABOUT 34 YEARS.
APPELLANT NOS.1 TO 4 ARE RESIDENT OF NO.134, 4TH CROSS, HANUMANTHANAGAR, BENGALURU-560 019. ...APPELLANTS
(BY SRI NARAYAN MAYYAR, ADVOCATE)
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AND:
PADAMAMMA SINCE DECEASED, BY HER LEGAL REPRESENTATIVES:
LATE S. NAGARAJA SINCE DECEASED, BY HIS LEGAL REPRESENTATIVES:
SMT. B. H. SHYLAJA W/O. LATE S. NAGARAJA, AGED ABOUT 51 YEARS.
SRI N. VARUN S/O. LATE S. NAGARAJA, AGED ABOUT 33 YEARS.
SMT. N. DIVYA D/O. LATE S. NAGARAJA, AGED ABOUT 30 YEARS.
RESPONDENT NOS.1 TO 3 ARE RESIDENT OF NO.134, 4TH CROSS, HANUMANTHA NAGAR, BENGALURU-560 019.
SMT. GIRIJA W/O. SRI SRINIVAS, AGED ABOUT 62 YEARS, RESIDENT OF NO.749, 5TH CROSS, BANASHANKARI 2ND STAGE, 2ND BLOCK, BENGALURU-560 050.
5(A). SMT. UMA VISHWANATH SINCE DECEASED, BY HER LEGAL REPRESENTATIVES:
SPARSHA NANDAVANAM W/O. SAVIPRASAD HEBBUR RANGASWAMY, AGED ABOUT 38 YEARS, NO.104, 11TH CROSS, 10TH MAIN, MALLESWARAM, BENGALURU NORTH, BENGALURU-560 055.
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RFA No. 190 of 2018
SMT. GEETHA W/O. THYAGARAJ, AGED ABOUT 55 YEARS, RESIDENT OF NO.161, YAMALUR, BENGALURU-560 037.
SMT. SUJATHA R. KRISHNA W/O. C. RADHAKRISHNA, AGED ABOUT 53 YEARS, RESIDENT OF NO.8, 4TH MAIN, 2ND CROSS, SHANKAR NAGAR, MAHALAKSHMI LAYOUT, BENGALURU-560 050.
SMT. ASHA BHOJARAJ W/O. K. M. BHAJARAJ, AGED ABOUT 51 YEARS, RESIDENT OF LAKSHMI KRUPA, OLD NO.14, NEW NO.21, 9TH "A" MAIN, 36TH CROSS, 5TH BLOCK JAYANAGAR, BENGALURU-560 050.
SRI OM PRAKASH S/O. KALU RAMJI, AGE: MAJOR.
SMT. SUSHILA DEVI SEERVI W/O. SRI OM PRAKASH, AGE: MAJOR.
RESPONDENT NOS.9 AND 10 ARE RESIDENT OF NO.48, 1ST MAIN, 2ND CROSS, SIDDANNA LAYOUT, DODDAKAILASANDRA, BENGALURU-560 062.
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RFA No. 190 of 2018
SMT. GEETHA DEVI W/O. AMARA RAM, AGED ABOUT 38 YEARS, RESIDENT OF NO.48, 1ST MAIN, 2ND CROSS, SIDDANNA LAYOUT, DODDAKALLASANDRA, BENGALURU-560 062. ...RESPONDENTS
(BY SRI H.S. DWARAKANATH, ADVOCATE, FOR SRI R.A. CHANDRASHEKAR REDDY, FOR R-4, 5(A) & 6 TO 8, SRI R.A. DEVANAND, ADVOCATE, FOR R-9 TO 11, & R-1, 2 AND 3 ARE SERVED AND UNREPRESENTED)
* * *
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 28-10-2017 PASSED ON I.A. NO.4 IN ORIGINAL SUIT NO.2232 OF 2015 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH NO.27), BENGALURU.
THIS REGULAR FIRST APPEAL, HAVING BEEN HEARD AND RESERVED ON 15-4-2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, VENKATESH NAIK T., J, PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K. SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T
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RFA No. 190 of 2018
CAV JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) This appeal is filed by the appellants/plaintiffs challenging the judgment dated 28-10-2017 passed by the XII Additional City Civil Judge, Bengaluru, on I.A. Nos.3 and 4 in Original Suit No.2232 of 2015, whereby the trial Court rejected the suit of the plaintiffs by allowing I.A. No.3 filed by defendant No.1 and I.A. No.4 filed by defendant Nos.5 to 9 filed under Order VII, Rule 11 of the Code of Civil Procedure, 1908. 2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court. The appellants are the plaintiffs and the respondents are the defendants.
The brief facts of the case of the plaintiffs are that, one Venkata Seethappa was the propositus of the family of the plaintiffs and defendant Nos.1 to 9. Venkata Seethappa married Padmamma (defendant No.1) and they have seven children, namely Basavaraju, Nagaraja, Girija, Uma, Geetha, Sujatha and Asha. Basavaraju died on 2-11-2000 and Nagaraja died on 6-12-2012. Plaintiff Nos.1 to 4 are the legal representatives of the deceased Basavaraju (original plaintiff), whereas defendant Nos.2 to 4 are the legal representatives of
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RFA No. 190 of 2018
deceased Nagaraja. Five daughters, namely Girija, Uma, Geetha, Sujatha and Asha are defendant Nos.5 to 9. Defendant Nos.10 to 12 are strangers to the family of the plaintiffs and they are purported to be the purchasers of the property, which is under challenge. It is contended that Basavaraju filed a suit for partition and separate possession in respect of the suit schedule property in Original Suit No.1009 of 1998 against Nagaraja and his parents. A compromise memo was filed on 13-3-1998 and the said suit was disposed off accordingly. A final decree was also passed effecting partition of the then existing property. After the death of Venkata Seethappa, in spite of partition, Basavaraju, Nagaraja and their mother, Padmamma (defendant No.1), were living together. In order to avoid Income Tax and Wealth Tax, Basavaraju and Nagaraja got suit 'A' schedule property purchased in the name of their mother, Padmamma, under registered Sale Deed dated 17-3-2023. Hence, Padmamma is the de facto owner and the plaintiffs and defendant Nos.2 to 4 are de jure owners of 'A' schedule property, after the death of Basavaraju and Nagaraja. When such being the facts, the plaintiffs came to know that five daughters of defendant No.1, i.e. defendant Nos.5 to 9
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RFA No. 190 of 2018
fraudulently, mischievously and in collusion with each other, created alleged Gift Deeds, said to be executed by defendant No.1 in their favour, in respect of suit schedule (a) to (f), which are part and parcel of suit schedule 'A' property. As per fraudulent registered Gifts Deeds dated 9-5-2005, suit 'b', 'c', 'd', 'e' and 'f' schedule property were gifted to defendant Nos.5, 6, 7, 8 and 9, respectively. Later, defendant No.5 appears to have sold the property gifted to her in favour of defendant Nos.10 to 12 under registered Sale Deed dated 19-11-2014. Hence, the plaintiffs filed a suit for partition and separate possession of the suit schedule property and also for declaration to declare the Gift Deeds dated 9-5-2005 and 25-5-2005 executed by defendant No.1 in favour of defendant Nos.5 to 9 and to declare Sale Deed dated 19-11-2014 executed by defendant No.5 in favour of defendant Nos.10 to 12 as not binding on the plaintiffs. The plaintiffs also sought for consequential relief of permanent injunction against defendant Nos.5 to 12 restraining them from interfering with peaceful possession and enjoyment of the suit schedule property. 4. On service of suit summons, defendant No.1 appeared through her counsel and filed I.A. No.3 under Order VII, Rule
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RFA No. 190 of 2018
11 of the CPC. Later, after the death of defendant No.1, similar application, i.e. I.A. No.4 was filed by defendant Nos.5 to 9. 5. Defendant No.1 had contended that the suit schedule property is her self acquired property, having purchased the same under registered Sale Deed dated 17-3-2003 executed by the Society. Thus, Schedule 'A' is her absolute property. Schedule 'b' to 'f' properties are different portions of Schedule 'A' property. During her lifetime, neither the plaintiffs, nor defendant Nos.2 to 4 had claimed any share in the said property. Further, in the affidavit annexed to I.A. No.4, it was contended that by virtue of the provisions of the Benami Transactions (Prohibition) Act, 1988, when the property was purchased in the individual name of person, the property will become the absolute property of the person in whose name the property is registered. Hence, the entire transactions appear to be hit by the Benami Transactions (Prohibition) Act, 1988, and prayed for dismissal of the suit.
The trial Court, after hearing the parties, allowed I.A. Nos.3 and 4 filed under Order VII, Rule 11 of the CPC and consequently, dismissed the suit of the plaintiffs. Being
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RFA No. 190 of 2018
aggrieved by the impugned judgment, the plaintiffs have preferred this appeal.
Heard the learned counsel for the appellants/plaintiffs and the learned counsel for the respondents/defendants.
Learned counsel for the appellants/plaintiffs has contended that the trial Court has not perused the pleadings and documents relied upon by the plaintiffs. The trial Court has not considered the vital aspects that Venkata Seethappa had two sons and five daughters, namely defendant Nos.5 to 9. Venkata Seethappa died on 10-4-1998, his wife, Padmamma (defendant No.1), died on 18-11-2006, his first son, Basavaraju, died on 2-11-2000 and second son, Nagaraja, died on 6-12-2012. The marriages of five daughters were performed in the year 1971, 1973, 1981, 1986, and 1988 and at the time of marriages, the father, Venkata Seethappa, had given sufficient ornaments and performed his daughters' marriages in customary manners. After the marriages of the daughters, Venkata Seethappa and Padmamma were residing with their male children, viz. Basavaraju and Nagaraja. In fact, there was no partition held between Basavaraju, Nagaraja and their parents in respect of the suit schedule property. During the
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RFA No. 190 of 2018
lifetime of Basavaraju, Nagaraja and their parents, they jointly owned a land, bearing Survey No.76 of Vajarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, measuring 3 acre and 27 guntas. As they could not develop the said land, they approached Balaji Housing Co-operative Society. Thus, they entered into a tripartite Agreement with Balaji Housing Society. As per the tripartite Agreement dated 16-2-1991, for various reasons, the Society could not allot sites to the original owners. Hence, Venkata Seethappa and his two sons agreed that the property should be allotted in the name of defendant No.1, Padmamma, and after her death, it should be divided between two sons. Later, the Society allotted three sites in the name of defendant No.1 under three Sale Deeds in respect of sites Nos.229A, 229B and 229C. As per the Society rules, one person is entitled to one site, but because of the request made by the original owners of the land, all the three sites were registered in the name of defendant No.1. Thus, defendant No.1 was only a Trustee of the property and she had no source of income to claim that it is her self acquired property. However, the trial Court misunderstood the entire facts and pleadings, and wrongly held that suit schedule property is the self acquired property of defendant No.1. Further, the trial Court failed to
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note that the daughters and Padmamma could have claimed only 1/3rd share of the property of Venkata Seethappa and not remaining 2/3rd share of the property. Therefore, on all these grounds, he prayed to remand the matter to the trial Court for fresh consideration by setting aside the judgment of the trial Court.
Per contra, the learned counsel for the respondents/defendants has contended that defendant No.1 had purchased the suit schedule property in her name. Thus, she became the absolute owner of the same and thereafter, she gifted the entire suit schedule property in favour of her five daughters. i.e. defendant Nos.5 to 9 under registered two Gift Deeds. Now, defendant No.5 sold her share in favour of defendant Nos.10 to 12. Hence, the suit of the plaintiffs is not maintainable and as such, the trial Court has rightly rejected the plaint under Order VII, Rule 11(d) of the CPC. Hence, he prayed to dismiss the appeal.
After hearing the learned counsel for the parties and perusing the material available on record, the point that would arises for consideration in this appeal is:
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RFA No. 190 of 2018
I. Whether the plaintiffs have made out sufficient grounds to remand the matter for fresh consideration? 11. Admittedly, the plaintiffs had filed suit for partition and separate possession of the suit schedule property and declaration to declare two Gift Deeds and two Sale Deeds as null and void and not binding on the plaintiffs. On the other hand, the defendants have contended that if the deceased Basavaraju and the deceased Nagaraja had purchased the suit schedule property in the name of their mother, defendant No.1, it is to be called as benami transactions.
In this case, the defendants have taken contention that there was partition among the deceased Basavaraju, the deceased Nagaraja and their parents, and the matter was ended in compromise in Original Suit No.1009 of 1998, but the defendants have not placed any such documents before the Court to substantiate that the plaintiffs has got share in the joint family property.
According to the plaintiffs, the deceased Basavaraju and the deceased Nagaraja were in service. Hence, they purchased the suit schedule property in the name of their mother, defendant No.1, under registered Sale Deed dated
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RFA No. 190 of 2018
17-3-2003 and defendant No.1 has not contributed anything as she had no avocation. Therefore, whether defendant No.1 had independent source of income to purchase the suit schedule property has to be determined by the trial Court in a full- fledged trial. The trial Court has not framed any issues and hence, the same are required to be framed. 14. In determining an application under Order VII, Rule 11(d) of the CPC, the primary focus is on the averments made in the plaint, which must be read as a whole. The defenses or pleas raised by the defendants in their written statement or any other application are not considered relevant. Admittedly, the suit in question has been filed in the year 2015 itself. The specific plea of the plaintiffs is that the suit schedule property is the joint family property of the plaintiffs and the defendants. Basavaraju and Nagaraja purchased the suit schedule property in the name of their mother, defendant No.1. As such, defendant No.1 is not owner of the property and she cannot gift the suit schedule property in favour of her five daughters, i.e. defendant Nos.5 to 9. This aspect also requires a full-fledged trial.
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Further, the defendants raised a plea that it was benami transactions. The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus : (i) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction: (ii) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima-facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (iii) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (iv) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct, etc. Thus, to prove that it was benami transaction, an issue has to be framed and answered. However, the same has not been done by the trial Court. 16. For the reasons stated hereinabove, we are of the considered view that Point No.I is to be answered in the affirmative and consequently, we proceed to pass the following
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RFA No. 190 of 2018
O R D E R
i. Appeal is allowed. ii. The judgment dated 28-10-2017 in Original Suit No.2232 of 2015 passed by XII Additional City Civil Judge, Bengaluru, rejecting the plaint, is hereby set aside and I.A. No.3 filed by defendant No.1 and I.A. No.4 filed by defendant Nos.5 to 9 under Order VII, Rule 11(d) of the Code of Civil Procedure, 1908, are hereby dismissed. iii. Original Suit No.2232 of 2015 is restored to the file of the trial Court for being expeditiously disposed off on merits and in accordance with law by giving opportunity to both parties. iv. It is made clear that no opinion is expressed on the merits of the case and all contentions are kept open. v. No order as to costs.
Sd/- (K.SOMASHEKAR) JUDGE
Sd/- (VENKATESH NAIK T) JUDGE
KVK