SMT. VIJAYALAKSHMI RAMANNA Vs. RAGHUNANDAN RAMANNA AND ANOTHER

JUDGEMENT

(1.) The defendant No. 1 filed the present writ petition against the order dated 17.7.2017 on I.A. No. 10 in O.S. No. 7325 of 2009 allowing the application filed by the plaintiff under Order 6, Rule 17 read with section 151 of Code of Civil Procedure, 1908 by imposing cost of Rs. 500/-.

(2.) The present 1st respondent who is the plaintiff in O.S. No. 7325 of 2009 filed the suit for declaration, permanent injunction and for partition of the suit schedule properties that the plaintiff has got share in item No. 1 of the suit schedule property more-fully described in item No. 1 of the schedule and he is entitled for share and also sought for declaration of the release deed dated 8.5.2007 and partition deed dated 14.5.2007 entered into by the defendants is not binding on the plaintiffs share over share of the suit schedule properties contending that the 1st defendant is the mother and defendant No. 2 is the younger brother of the plaintiff. The father of the plaintiff late Sri T.V. Ramanna inherited certain properties via partition deed on 16.7.1959 more-fully mentioned in para No. 11 of the plaint and further contended that in the year 1993, the plaintiffs father effected an oral partition among the family members and separated the coconut gardens to each individual. In the said oral partition, plaintiff was allotted with the coconut garden Doddi Thota measuring 16 guntas in Sy. No. 861, 20 guntas in Sy. No. 862; 1 acre 19 guntas in Sy. No. 863,1 acre 8 guntas in Sy. No. 864, 2 acres 14 guntas in Sy. No. 865, 1 acre 20 guntas in Sy. No. 866; 2 acre 2 guntas in Sy. No. 871; 1 acre 18 guntas in Sy. No. 873; 1 acre 28 guntas in Sy. No. 874; 1 acre 27 guntas in Sy. No. 875 in all measuring 16 acres 24 guntas in Malur Village, Malur Hobli, Channapatna Taluk, Ramanagar District. Thereby, the plaintiff became the absolute owner of the said property subsequent to the oral partition effected in the year 1993 of 94. Ever since the date of allotment of the property the plaintiff is enjoying the same as its absolute owner with possession. It is further submitted that subsequently on 13.9.2004, plaintiffs father Late T.V. Ramanna being absolute owner of the property bearing site No. 114 (old No. 77) on K.H. Road, measuring an extent of 100 feet x 80 feet had executed a Gift Deed and Gift Deed was registered in favour of the plaintiff and defendants jointly. Accordingly, the plaintiff is the absolute owner of l/3rd share in the said property and the same is more-fully described in item No. 1 of the plaint schedule property. It is further submitted that subsequent to Gift deed dated 13.9.2004, the plaintiff and defendants on 15.12.2004 entered into a partnership deed to carry on business on partnership basis and formed themselves into a partnership firm with effect from 15.12.2004 to carry on hospitality business under the name and Style of M/s. Pavilion Group in the property allotted under Gift Deed on the terms and conditions agreed between the plaintiff and defendants. He would further contend that the plaintiff and defendants have agreed certain important conditions with regard to capital, place, working partners and management, salaries to partners on book profits, name of the partner, transfer of assignment and alteration of terms. It is further contended that on the request made by the 1st defendant and as per his wish, plaintiff executed General Power of Attorney for the limited purpose to safeguard the interest of the plaintiff during the absence of the plaintiff. It is submitted that a release deed executed on 8.5.2007 was created by 1st defendant in favour of 2nd defendant on 8.5.2007 is fraudulent. Therefore, he has filed the suit for the relief sought.

(3.) The defendants filed the written statement denied the plaint averments and contended that the very suit filed by the plaintiff and for partition and declaration as sought is not maintainable. The plaintiff is the son of Sri Ramanna knowing fully well, has executed the power of attorney in favour of 1st defendant. The 1st defendant has acted in accordance with all the deeds alleged in the plaint and these are valid and genuine. Hence, submits that the plaintiff is not entitled any relief and sought for dismissal of the suit.