K S PARVATHAMMA Vs. M MUNIKISHNAPPA

JUDGEMENT

(1.) R. F. A. No. 294/2003 is by the legal representatives of the plaintiff in O. S. No. 4583/1988. R. F. A. Cross Objection No. 18/2003 is by the second defendant. R. F. A. Cross Objection No. 2/2004 is by defendant No. 3. R. F. A. No. 293/2003 is by the legal representatives of defendant in o. S. No. 3252/1987 against the judgment and decree dated 18-11-2002. Parties will be referred to as per their ranking in O. S. No. 4583/ 1988. Defendant No. 1 Smt. B. Vishalakshmamma and defendant No. 2 M. Munikrishnappa in O. S. No. 4583/1988 are the plaintiffs L and 2 in O. No. 3252/1987. The plaintiff in O. S. No. 4583/1988 is the defendant in O. S. No. 3252/1987.

(2.) O. S. No. 352/1987 is suit for de claration and injunction whereas O. S. No. 4583/ 1988 is for declaration that the sale deed dated 27-11-1984 executed by defendant No. 1 in favour of defendant No. 2 is nominal, void and not binding on the plaintiff. The gift deed dated 24-1-1985 executed by defendant No. 1 in favour of defendant No. 3 is nominal and sham and not binding on the plaintiff, the compromise petition dated 16-2-1987 and the decree passed thereon does not bind the plaintiff and for declaration that the plaintiff is the absolute owner of the suit schedule properties.

(3.) THE plaintiff's case in O. S. No. 4583/ 1988 is that, he is natural son of N. Narayanaswamy and Smt. Chikkanagamma. When he was a child of six months, he was taken in adoption by M. Byrashetappa and his wife Smt. Vishalaskshamma i. e. . defendant no. l. The premises bearing No. 2. 2/1 and 272 are situated in Old Tharagupet belongs to the first defendant's father. He executed the will dated 24-10-1932 bequeathing his properties in favour of first defendant. Though these properties were bequeathed to her, she never treated these properties as her separate property and she relinquished her right in favour of the joint family consisting of plaintiff-defendant No. 1. and his adopted father namely Byrashetappa. Defendant No. 1 never claimed any interest in this property. His adoptive father pulled down the old construction bearing No. 2/1 and erected ground floor and first floor by expending substantial amount sri Byrashetappa died on 25-3-1983. Subsequent to his death, the plaintiff constructed the second floor at his cost. The first defendant has not contributed any money for construction. Defendant No. 1 knowing fully well that, the plaintiff constructed the building and he is having exclusive title to the premises bearing No. 2/1, on the basis of doctrine of equitable and promissory estoppel. However, at the most she has share in the premises bearing No. 2 and 2/2. It is also stated that the plaintiff had availed loan from the Co-operative Bank in the year 1986 by executing mortgage deed. The second defendant started residing with the first defendant soon after the plaintiff shitted his residence to the second floor. Defendants-2 and 3 started to exercise a dominating influence and control over defendant No. 1 on the pretext of helping her and defendant No. 2 got the sale deed in his favour on 27-11-1984 and defendant No. 3 got a gift deed in his favour on 24-1-1985. The plaintiff stated that the gift and the sale transaction are void and not binding on the plaintiff as the properties are joint family properties and premises bearing No. 2/1 over which the plaintiff constructed the second floor has absolute right to enjoy the said property.