M. MUNIYAPPA Vs. SMT. KEMPAMMA AND OTHERS

JUDGEMENT

(1.) - This is 3rd defendant's writ petition against the order dated 23-9-2016 made in O.S. No. 853 of 2008 on the file of the Senior Civil Judge and Judicial Magistrate First Class, Devanahalli, rejecting I.A. No. 31 filed under Order 9, Rule 7 read with Sec. 151 of the Civil Procedure Code, 1908.

(2.) The respondents 1 and 2/plaintiffs filed suit in O.S. No. 853 of 2008, for partition and separate possession of /th share in the suit schedule property; declaration that the partition dated 4-12-1990 between deceased Munihanumaritharayappa and his sons, defendants 1 to 3, is null and void and not binding on the plaintiffs; declaration that the Will dated 16-2-1991 and 19-2-1991 said to be executed by late Munihanumantharayappa in favour of defendants 4 and 5, as forged, fabricated by defendants 1, 4 and 5 and the same is illegal, and not a genuine one; declaration that the sale deeds registered on 28-6-2004, in favour of the 6th defendant dated 24-6-2004 executed by defendants 1, 4 and 5 along with others, the sale deed executed by defendant 2 and his family members, the sale deed executed by defendant 3 and his family members, are null and void, not binding on the plaintiffs and consequently the sale deed dated 20-11-2004 executed by the 6th defendant in favour of the 7th defendant and the subsequent transaction in respect of the suit schedule property are also void, not binding on the plaintiffs; declaration that the sale deed dated 25-9-2014 executed by defendants 6 and 7 in favour of 8th defendant, is a void document as it is hit by Sec. 52 of the Transfer of Property Act, 1882 and in violation of the interim order of temporary injunction; declaration that the sale deed dated 19-10-2012 in favour of 6th defendant executed by defendants 4 and 5 is an invalid and void document and hit by Sec. 52 of the Transfer of Property Act, etc., contending that the plaintiffs are the sisters of defendants 1 to 3 who are the children of late Munihanumantharayappa-defendants 4 and 5 are the daughters of Anjinappa, the 1st defendant. The said Munihanumantharayappa was the absolute owner of the agricultural land bearing Sy. No. 52/3 measuring 5 acres 7 guntas along with 4 guntas kharab situated at Nagamangala Village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District. The said land was a darkasth land and was the absolute property of Munihanumantharayappa and it was granted to him during his lifetime and he had not alienated the property nor did make any disposition of any portion of the property. Defendants 1 to 5 are representing that late Munihanumantharayappa had bequeathed 1 acre 11 guntas of land out of 5 acres 7 guntas in favour of defendants 4 and 5. Said late Munihanumantharayappa never executed any Will either in favour of defendants 4 and 5 or in favour of anybody. Defendants 1 to 5 might have created the Will with mala fide intention to get unlawful gain and the same is not binding on the plaintiffs, etc.

(3.) All the defendants filed written statement and the 3rd defendant filed separate written statement, denied the plaint averments and contended that the suit filed by plaintiffs is not maintainable. It is further contended that the 3rd defendant who is the brother of the plaintiffs executed a registered sale deed in favour of other defendants, therefore, the very suit is not maintainable, and prayed for dismissal of the suit.