KUMARI KESHWINI Vs. S.MAHESH

JUDGEMENT

(1.) The appellants in O.S.No.6320 of 2010 on the file of the XX Additional City Civil and Sessions Judge, Bengaluru City (for short, Trial Court), are in this appeal impugning the order dtd. 8/1/2014. The Trial Court by this impugned order has allowed the applications I. A. No. IV and I. A. No. VI - filed by the respondent No.2 and respondent No.1 (along with his deceased mother who was party before the Trial Court) under Order VII Rule11 (d) of the Code of Civil Procedure (for short, CPC) rejecting the appellants plaint.

(2.) The undisputed facts are that three immovable properties described in the plaint schedule (for short, suit schedule properties) are self-acquired properties of the appellants grandfather, who was engaged in business. He purchased these properties in the name of his wife the deceased defendant No.1 before the Trial Court - under the sale deed dtd. 22/3/1975. The appellants grandfather died on 28/4/2001. On his demise, the appellants grandmother and respondent No.1 (appellants father) have executed sale deed for one of the suit schedule properties viz., schedule A property in favour of respondent No.2 under the sale deed dtd. 20/2/2010 and they have also executed mortgage deed dtd. 23/3/2010 in favour of respondent No.2. The appellants grandmother died during the pendency of the suit on 14/3/2012.

(3.) The appellants filed the aforesaid suit in O.S.No.6320 of 2010 for partition asserting that schedule A and schedule B properties, as well as schedule C property, are ancestral properties asserting that the appellants grandfather had purchased these properties in the name of their grandmother under the aforesaid sale deed in the year 1975; their grandmother did not have any independent income. On his demise, the properties devolved on to their grandmother and their father, respondent No.1, but these are ancestral properties. The appellants father viz., respondent No.1 is given to vices and he is a spendthrift. After the demise of their grandfather, in the panchayath, it was decided that the appellants and their mother could stay in a part of the schedule B property and receive rents from the tenants in occupation of other tenements thereof, and as such, the appellants reside in a portion of the schedule B property and receive rents from the tenants. In such panchayat, it was also decided that the appellants grandmother and respondent No.1 shall continue to reside in one of the tenements in schedule A property and receive rents from other tenants in occupation of other tenements in the property and also from tenements in schedule C property. The Respondent No.2, who is a close acquaintance of the family, taking undue advantage of the age of the appellants grandmother and the wayward ways of the respondent No.1 has obtained the impugned deeds. The appellants have share in these properties and they have not consented for transfers under these deeds. As such, the appellants are entitled for share and for declaration that the impugned deeds are invalid insofar as their respective shares.