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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 30TH DAY OF MARCH 2015

BEFORE:

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL No.460 OF 2009

CONNECTED WITH

REGULAR FIRST APPEAL No.1219 OF 2009

REGULAR FIRST APPEAL No.1085 OF 2009

IN R.F.A.No.460/2009 BETWEEN: Sri. D. Ramakrishna, Son of Late V.L.Dhanram, Aged about 81 years, Resident of No.35/7, Longford Road, Bangalore 560 025. … APPELLANT (By Shri. T.V.Ramanujan, Senior Advocate for Smt. B.V. Vidyulatha, Advocate) AND: 1. D. Balakrishna, Son of Late V.L.Dhanram, Since dead by his

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Legal Representatives: 1a) Ramani .B, Wife of Late D. Balakrishna, Aged about 79years, Residing at No.35/4, Langford Cross Road, Bangalore 560 025. 1b) Dayakar .B, Son of Late D. Balakrishna, Aged about 62 years, Residing at No.35/4, Langford Cross Road, Bangalore 560 025. 1c) Renuka .P, Wife of Late B. Prabhakar, (son of Late D. Balakrishna), Aged about 57 years, Residing at No.35/4, Langford Cross Road, Bangalore 560 025. 1d) Amit, Son of Late B. Prabhakar, Aged about 34 years, Residing at No.35/4, Langford Cross Road, Bangalore 560 025. 1e) Divya, Daughter of Late B. Prabhakar, Aged about 30 years, Residing at No.S/2,

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Robideep Apartments, Nagavara Palya Main Road, C.V.Ramannagar, Bangalore 560 093. [amended vide Court order Dated 27.2.2015] 2. Sri. Devaraj Dhanram, Son of Late V.L.Dhanram, Since dead by his Legal Representatives: 2a) Smt. Geetha Devaraj, Wife of Late Devaraj Dhanaram, Aged 67 years, 2b) Sri. Deepak Devaraj, Son of Late Devaraj Dhanaram, Aged 43 years, Both are residing at No.35/9, Langford Road, Bangalore 560 025. 2c) Ravathi Manohar, Daughter of Late Devaraj Dhanaram, Aged 46 years, Residing at No.16, Wallace Garden, 2nd Street, 1000 lights, Nungambakkam, Chennai 600 006. 2d) Arthi Werner Bucher, Daughter of Late Devaraj Dhanaram, Aged 40 years,

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Residing at Zimmerei, Obernauerstr 31, 6010 Kriens, Switzerland. [amended vide court order Dated 28.2.2012] 3. Sri. D. Vasudevan, Son of Late V.L.Dhanram, Joint Managing Director, M/s. Firebricks and Potteries (Private) Limited, Major, Resident of No.35/2A, Longford Road, Bangalore 560 025. 4. Sri. D. Sampath, Son of Late V.L.Dhanram, Major, Resident of No.35/3A, Longford Road, Bangalore 560 025. 5. Sri. D. Gopinath, Son of Late V.L.Dhanram, Major, Resident of No.3/1, Longford Road, Bangalore 560 025. Mrs. K. Dhanram, Since deceased by Legal Representatives: 6. Lakshmi Baj, Wife of Krishnaraj,

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Hindu, Aged 76 years, Resident of No.32, Joshies St., Dr. Thirumurthi Nagar, Nungambakkam, Chennai – 34. 7. T. Vanajakshi, Wife of Thiruvankarasu, Hindu, Aged 63 years, C-10, Nelson Chambers, Ambji, Chennai. 8. M/s. Firebricks and Potteries (Private) Limited, No.35/4, Langford Road, Bangalore 560 025, Represented by its Chairman, Sri. D. Balakrishna. …RESPONDENTS (By Shri. B. Ramesh, Advocate for Respondent Nos. 2(a to d) Shri. K.G.Raghavan, Senior Advocate for Shri. Abhijit, Advocate for M/s. Sagar Associates, for Respondent Nos. 3, 6 and 8 Shri. Shanmukhappa, Advocate for M/s. Kesvy and Company for Respondent Nos. 2(a and b) Shri. T.P. Vivekananda, Advocate for Respondent Nos. 6 to 7 Smt. Deepti .A, Advocate for M/s. Crest Law Partners for Respondent Nos. 4 and 5 Smt. Sheetal Soni, Advocate for Legal Representatives of deceased Respondent Nos. 1 (a to e) )

*****

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This Regular First Appeal filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 29.11.2008, passed in O.S.No.874/1990 on the file of the I Additional City Civil and Sessions Judge, Bangalore, dismissing the suit for declaration, partition and separate possession. IN R.F.A.No.1219/2009 BETWEEN: Sri. Devaraj Dhanram, Son of Late V.L.Dhanram, Since dead by his Legal Representatives: a) Smt. Geetha Devaraj, Wife of Late Devaraj Dhanaram, Aged 67 years, b) Sri. Deepak Devaraj, Son of Late Devaraj Dhanaram, Aged 43 years, Both are residing at No.35/9, Langford Road, Bangalore 560 025. c) Ravathi Manohar, Daughter of Late Devaraj Dhanaram, Aged 46 years, Residing at No.16, Wallace Garden, 2nd Street, 1000 lights, Nungambakkam, Chennai 600 006.

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d) Arthi Werner Bucher, Daughter of Late Devaraj Dhanaram, Aged 40 years, Residing at Zimmerei, Obernauerstr 31, 6010 Kriens, Switzerland. [amended vide court order Dated 07.08.2012] …APPELLANTS (By Shri. Shanmukhappa, Advocate for M/s. Kesvy and Company) AND: 1. Sri. D. Ramakrishna, Son of Late V.L.Dhanram, Aged about 81 years, Resident of No.35/7, Langford Road, Bangalore 560 025. 2. D. Balakrishna, Son of Late V.L.Dhanram, Since dead by his Legal Representatives: 2(a) Ramani .B, Wife of Late D. Balakrishna, Aged about 79years, 2(b) Dayakar .B, Son of Late D. Balakrishna, Aged about 62 years, 2(c) Renuka Prabhakar,

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Wife of Late B. Prabhakar, Aged about 53 years, 2(d) Amit, Son of Late B. Prabhakar, Aged about 34 years, 2(e) Divya, Daughter of Late B. Prabhakar, Aged about 31 years, All are residents of No.35/4, Langford Road Cross, Shanthinagar, Bangalore 560 025. [amended vide Court order Dated 27.2.2015] 3. Sri. D. Vasudevan, Son of Late V.L.Dhanram, Joint Managing Director, M/s. Firebricks and Potteries (Private) Limited, Major, Residing at No.35/2A, Longford Road, Bangalore 560 025. 4. Sri. D. Sampath, Son of Late V.L.Dhanram, Major, Resident of No.35/3A, Longford Road, Bangalore 560 025.

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5. Sri. D. Gopinath, Son of Late Dhanram, Major, Resident of No.3/1, Conwell Road, Bangalore 560 025. 6. Lakshmi Bai, Wife of Krishnaraj, Hindu, Aged 76 years, Resident of No.32, Joshies St., Dr. Thirumurthi Nagar, Nungambakkam, Chennai 600 100. 7. T. Vanajakshi, Wife of Thiruvankarasu, Hindu, Aged 63 years, C-10, Nelson Chambers, Ambji, Chennai 600 100. 8. M/s. Firebricks and Potteries (Private) Limited, No.35/4, Langford Road, Bangalore 560 025, Represented by its Chairman, Sri. D. Balakrishna. …RESPONDENTS (By Shri. T.V. Ramanujan, Senior Advocate for Smt. B.V.Vidyulatha, Advocate for Respondent No.1; Shri. K.G.Raghavan, Senior Advocate for Shri. Abhijit, Advocate for M/s. J. Sagar Associates for Respondent No.8;

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Shri. T.P. Vivekananda, Advocate for Respondent Nos. 6 and 7; Smt. Deepti. A, Advocate for M/s. Crest Law Partners, for Respondent Nos.4 and 5; Shri. B.G. Sriram, Advocate for Respondent No.2 Vide order dated 23.4.2010 service of notice to Respondent no.3 held sufficient)

***** This Regular First Appeal filed under Section 96 read with

Order XLI Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 29.11.2008, passed in O.S.No.874/1990 on the file of the I Additional City Civil and Sessions Judge, Bangalore, dismissing the suit for declaration and partition. IN R.F.A.No.1085/2009 BETWEEN: T. Vanajakshi, Wife of Thiruvankarasu, Aged 63 years, C-10, Nelson Chambers, Ambji, Chennai. …APPELLANT (By Shri.T.P.Vivekananda, Advocate) AND: 1. D. Balakrishna, Son of Late V.L.Dhanram, Chairman, Firebricks and Potteries (Private) Limited, Major, resident of No.35/4, Longford Road, Bangalore 560 025.

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2. Sri. Devaraj Dhanram, Son of Late V.L.Dhanram, Major, resident of No.35/9, Longford Road, Bangalore 560 025. 3. Sri. D. Vasudevan, Son of Late V.L.Dhanram, Joint Managing Director, M/s Firebricks and Potteries (Private) Limited, Major, resident of No.35/2A, Longford Road, Bangalore 560 025. 4. Sri. D. Sampath, Son of Late V.L.Dhanram, Major, resident of No.35/3A, Longford Road, Bangalore 560 025. 5. Sri. D. Gopinath, Son of Late V.L.Dhanram, Major, Resident of No.3/1, Conwell Road, Bangalore 560 025. Mrs. K. Dhanram, Since deceased by Legal Representatives: 6. Lakshmi Bai,

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Wife of Krishnaraj, Hindu, aged 76 years, Resident of No.32, Joshies St., Dr. Thirumurthi Nagar, Nungambakkam, Chennai- 34. 7. M/s Firebricks and Potteries (Private) Limited, No.35/4, Langford Road, Bangalore 560 025, Represented by its Chairman, Sri. D. Balakrishna. 8. Sri. D. Ramakrishna, Son of Late V.L.Dhanram, Aged about 81 years, Resident of No.35/7, Longford Road, Bangalore 560 025. …RESPONDENTS (By Shri. T.P.Ramanujan, Senior Advocate for Smt. B.V.Vidyulatha, Advocate for Respondent No.8; Smt. Deepti .A, Advocate for M/s. Crest Law Partners for Respondent No.5; Respondent Nos. 1, 3, 4 and 6 are served; Shri. K.G.Raghavan, Senior Advocate for Shri. Ahijit, Advocate for M/s. J.Sagar Associates for Respondent No.7)

***** This Regular First Appeal filed under Section 96 read with

Order XLI Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 29.11.2008, passed in O.S.No.874/1990 on the file of the I Additional City Civil and Sessions Judge,

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Bangalore, dismissing the suit for declaration and partition and separate possession. These Regular First Appeals having been heard and reserved on 27.2.2015 and coming on for pronouncement of Judgment this day, the Court delivered the following:-

J U D G M E N T

These appeals are decided by this common judgment as they

are preferred challenging the same judgment.

2. The appeal in RFA 460/2009 is filed by the plaintiff. The

appeals in RFA 1219/2009 and RFA 1085/2009 are filed by the

defendant no.2 and defendant no.6(b), respectively.

3. The parties are referred to by their rank before the trial

court for the sake of convenience.

4. The suit was filed seeking the relief of declaration that the

plaintiff and defendants 1 to 6 were the absolute owners of the suit

schedule properties and for partition and separate possession of the

same. The suit properties were the land bearing Sy.No.73 of

Yeshwanthpur Village, Bangalore North Taluk, measuring 6 acres

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and 1 gunta and land bearing Survey No.70/1 of Yeshwanthpura

village, Bangalore North Taluk, measuring 1 acre.

The plaintiff claimed that he was entitled to 1/7th share in the

suit schedule property. Defendant Nos.1 to 5 were the brothers of

the plaintiff and the defendant No.6 was the mother of the plaintiff.

M/s. Fire Bricks and Potteries Private Limited was arrayed as

defendant no.7.

It was the plaintiff’s case that his father Late V.L.Dhanram

Modaliar and his father’s brother V.L.Venugopal Modaliar had

purchased 12 acres and 2 guntas of land in land bearing survey

No.73 of Yeshwanthpur Village, under a registered sale deed dated

3.2.1938.

It was claimed that V.L.Dhanram Modaliar and

V.L.Venugopal Modaliar, along with their family members had

promoted two companies, namely, M/s. Fire Bricks and Potteries

Private Limited and M/s. Standard Tile and Clay Works Limited.

The shares in the said two companies were held jointly by

V.L.Dhanram Modaliar and V.L.Venugopal Modaliar. Subsequently,

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by an arrangement between the two brothers, M/s. Fire Bricks and

Potteries Private Limited (defendant no..7) came to be owned by

V.L.Dhanram Modaliar and his family members and M/s Standard

Tile and Clay Works Limited came to be owned by V.L.Venugopal

Modaliar and his family members.

M/s Standard Tile and Clay Works Limited, represented by its

Managing Director V.L. Venugopal Modaliar, sold the property to

defendant no.7 - Company, which was represented by V.L.Dhanram

Modaliar, the plaintiff’s father, under a registered Sale Deed dated

14.4.1945. It was urged by the plaintiff that V.L.Venugopal Modaliar

was entitled to only half share in item no.1 of the suit schedule

properties, namely, 6 acres and 1 gunta and hence, V.L.Venugopal

Modaliar could not have transferred the entire extent of 12 acres 2

guntas to defendant no.7. Therefore, the plaintiff claimed that he

was entitled to partition and separate possession of 1/7th share in the

suit schedule properties.

It was further urged by the plaintiff that his father

V.L.Dhanram Modaliar was granted occupancy rights in respect of

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land bearing Sy.No.70/1, Yeshwanthpura Village, Bangalore North

Taluk, measuring 1 acre, item no.2 of the suit schedule properties.

The defendant Nos.1 and 3 to 7 had entered appearance on

service of summons and had filed a common written statement. It

was the case of the said defendants that both V.L.Dhanram Modaliar

and V.L.Venugopal Modaliar acquired the property under a

registered sale deed dated 3.2.1938 (Exhibit D1) for and on behalf

of M/s Standard Tile and Clay Works Limited, though the said

property was purchased in their individual names. This was on

account of the fact that the aforesaid company was not incorporated

as on the date of purchase. However, the land bearing Sy.No.73 of

Yeshwanthpura Village, Bangalore North Taluk, measuring 12 acres

and 2 guntas had always been in the possession and occupation of

M/s. Standard Tile and Clay Work Limited, since its incorporation

till the property was sold to the defendant no.7 – company, under a

registered sale deed dated 14.4.1945. It was evident from the

revenue records that from 14.4.1945, the defendant no.7 - company

had been in possession and occupation of the land bearing Sy.No.73.

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It was stated that there were two partitions amongst the legal

heirs of V.L.Dhanram Modaliar i.e., the plaintiff’s father, where

under the present suit schedule property was neither included in the

schedule of properties that were partitioned, nor expressly excluded.

The first partition was by way of a deed of partition dated 29.9.1962.

However, in the said deed, the parties thereto had expressly agreed

that the said partition was only a partial partition.

Subsequently, in the year 1969, the plaintiff is said to have

filed a civil suit in O.S.No.56/1969 seeking partition of the joint

family property. A compromise was said to have been arrived at by

the parties thereto. In the said Compromise Petition, at paragraph

11, the parties to the said petition are said to have declared as below:

“Parties hereby confirm that there are no other

property – movable or immovable whatsoever to be divided

amongst them and belonging to joint family”.

The plaintiff is said to have served defendant no.7 in various

capacities, including as the Managing Director of the said company

till 16.1.1980. During his tenure as a director, the defendant no.7

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had mortgaged the suit schedule property in favour of Karnataka

State financial Corporation to secure a loan. The mortgage deeds

dated 2.6.1961 and 2.1.1970 had also been executed by the plaintiff

as a director of the defendant no.7 - company. In the said mortgage

deeds, the plaintiff had represented to the secured creditor that the

defendant no.7 - company was the absolute owner of the mortgaged

property.

The defendant no.2 had not filed written statement. During

the pendency of the suit, the sixth defendant is said to have died

and her daughters have been impleaded as defendants no.6(a) and

6(b). They are said to have filed a common written statement and

have also prayed for a decree of 2/7th share in the suit schedule

property.

On the basis of the above pleadings, the court below is seen

to have framed the following issues:

“1. Does defendants prove title of 7th defendant tot he suit property? 2. Whether the suit claim is barred by limitation? 3. Whether the valuation and payment of Court fee are insufficient? 4. Does the plaintiff prove joint title or possession of the suit property?

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5. Whether the plaintiff is entitled for the partition and possession of 1/7th share? 6. To what reliefs the parties are entitled?”

The trial Court had answered Issues Nos. 1 and 2 in the

affirmative and 3 and 4 in the negative and answered issue no.5 by

holding that the plaintiff is not entitled to partition and possession

of 1/7th share in the suit schedule properties

It is that judgment which is under challenge in these appeals.

5. The learned Senior Advocate Shri T.V.Ramanujam

appearing for the learned counsel for the appellant contends that the

trial court had taken up issues 1,4 and 5 together and had given the

following reasons to dismiss the suit.

“Further, it is an undisputed fact that subsequently

both the brothers V.L. Dhanram Mudaliar, father of

plaintiff and Defendant Nos.1 to 5 and V.L. Venugopal

Mudaliar have formed M/s. Firebricks and Potteries (P)

Ltd. and M/s. Standard Tile and Clay Works (P) Ltd.”

This finding is not supported by any evidence. The

learned judge has used the word ‘subsequently’, thereby

observing that as if the two companies were formed by the two

brothers after Exhibit D1 dated 03.02.1938. There is no

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evidence to support this observation or if it is called as a

finding, it is not proved by any evidence. On the other hand,

even as seen from the written statement of Defendants 1 and 3

to 7 in para 8, it is clearly stated that the companies were

already incorporated and the two brothers acquired the

property not for their own personal benefit but acquired as

directors of the companies incorporated under the provisions of

the Companies Act. There is also evidence to show that the

seventh defendant company was incorporated before

03.02.1938. The seventh defendant company has been

incorporated in the year 1935 as seen from Exhibit D-8 at

page 107 of the typed set of documents and also as seen from

page no.258. which are balance sheets of the seventh defendant

company. Thus, there is documentary evidence to show in the

form of balance sheets filed by the defendants themselves that

the seventh defendant was incorporated in the year 1935 and

it is seen from para 8 of the written statement that M/s.

Standard Tile and Clay Works (P) Ltd. was already

incorporated under the Indian Companies Act, 1913, and the

two brothers were directors.”

The learned Senior Advocate would draw attention to para

6.01, at page 15 of the judgment, wherein the learned trial Judge had

posed a question as follows:

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“So, now we have to consider that whether both V.L. Dhanram

Mudaliar and V.L. Venugopal Mudaliar have purchased the entire

Sy.No.73 of Yeshwantpura Village wherein Item 1 of suit schedule

property is situated in their individual capacity or as directors of M/s.

Standard Tile and Clay Works (P) Ltd. and M/s. Firebricks and

Potteries (P) Ltd.”.

The very framing of this question, it is contended, was

erroneous. It was nobody’s case that V.L. Dhanram Mudaliar and

V.L. Venugopal Mudaliar purchased Item no.1 of the suit schedule

property under Exhibit D1 – a sale deed, as directors of both the

companies. The learned Judge had further proceeded as follows:

“But it is the case of the plaintiff himself that after purchasing

the said land Sy.No.73 by V.L. Dhanram Mudaliar and V.L.

Venugopal Mudaliar, both of them had promoted two companies known

as M/s. Standard Tile and Clay Works (P) Ltd. and M/s. Firebricks

and Potteries (P) Ltd. So, it is clear that at the time of purchasing the

suit schedule property, these two companies were not at all in existence

and therefore, Exhibit P1 is in the individual names of V.L. Dhanram

Mudaliar and V.L. Venugopal Mudaliar and not as representatives of

the company. But subsequently, it is the case of the plaintiff himself that

the two companies were promoted by V.L. Dhanram Mudaliar and

V.L. Venugopal Mudaliar.”

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The above finding, it is contended, is on the face of it,

erroneous.

It is pointed out that it was not the case of the plaintiff that, at

the time of Exhibit P1, the two companies were not in existence. It

was not the case of the plaintiff that the two companies were

promoted after Exhibit P1. The two companies were very much in

existence at the time of Exhibit P1. And even as per para 8 of the

written statement, the two brothers were directors of the two

companies incorporated under the Companies Act. The finding is

thus contrary to the evidence available on record and it is not

supported by any evidence. Hence, it is contended that this

reasoning and the finding based on this erroneous reasoning is liable

to be set aside.

It is further contended that the second reason given is that

Item No.1 of the suit schedule property had been mortgaged by the

seventh defendant under Exhibits D-5 and D-6 showing it as the

property of the seventh defendant and hence, Item No.1 was the

property of the seventh defendant. The question was whether the

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seventh defendant had become the owner under Exhibit D2. If the

seventh defendant, proceeding on the basis that it had title under

Exhibit D-2, and had mortgaged the suit property under Exhibit D-5

and D-6, and plaintiff and defendants 1 to 5 had stood as guarantors,

it would not create title in favour of the seventh defendant, if

Exhibit D-2 had not, in fact, created title. Exhibits D-5 and D-6 are

seen to be mortgage deeds in a printed format. Apart from that, the

plaintiff and Defendants 1 to 6 were shareholders and plaintiff and

defendants 1 to 5 were in the management of the company. They

were all family members. No third-party was involved. There were

no separate deeds of guarantee. It is not stated as to why the

plaintiff and defendants 1 to 5 or some of them had been asked to

stand as guarantors. Therefore, if Exhibit D-2 did not convey title

to the seventh defendant, the mere mortgage of the property by the

seventh defendant claiming as owner and the plaintiff and

defendants 1 to 5 joining in the said mortgage deed, would not

confer title to the seventh defendant, if the seventh defendant

otherwise had no title under Exhibit D-2.

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The third reasoning given by the Judge is that there was a suit

in O.S.No.56/1969, covered by Exhibits D-38 and D-39 and in that

suit, the suit properties were not included and hence the suit

properties are not the joint family properties, but is the property of

the seventh defendant. This is also erroneous. In 1962, there was a

partial partition covered by Exhibit P-12. A reading of Ex.P-12

makes it clear that the partition deed was only in respect of one

property namely No.1, Langford Road, Civil Station, Bangalore and

a vacant piece of land, south of it as acquired by Dhanram Mudaliar

out of his self-acquired funds. The partition deed recites that the

two properties were amalgamated and a house was constructed and a

private road was laid by late Dhanram Mudaliar and constructions

were put up out of their separate funds and that it was only a partial

partition. It is stated that there was a portion which was not the

subject matter of the partition. Hence, merely because the suit

property has not been included in O.S.No.56/1969, it could not be

presumed that the suit properties were not available for partition and

they are the properties of the seventh defendant.

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6. On the other hand, the learned Senior Advocate Shri.

K.G.Raghavan, appearing for the counsel for Defendant no.7

contends that the appeals are liable to be dismissed on the following

grounds:

(i) Burden of proof;

(ii) Doctrine of estoppel as enshrined in Section 115 of the

Indian Evidence Act, 1872;

(iii) Sale of property by a ostensible owner as contemplated

under Section 41 of the Transfer of Property Act, 1882 (Hereinafter

referred to as the ‘TP Act’, for brevity);

(iv) Effect of not seeking declaration on the title to the suit

schedule properties by the plaintiff within the limitation period;

(v) Non-maintainability of second suit for general partition

amongst the family members;

(vi) Limitation.

(i) It is contended that one of the grounds on which the trial

court has dismissed the suit is based on the proposition of law that

the plaintiff has to prima facie show that the suit schedule properties

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have been held jointly by them. In fact, the plaintiff has expressly

admitted in his cross examination, that he has not produced any

document to show that item no.1 property was standing in the

names of legal representatives of the father of the plaintiff. He has

also further admitted that he has not produced any document before

the court to show that the occupancy right, in respect of item no.2

of the schedule, was granted in favour of his late father.

On the other hand, the defendant no.7 - company has proved

beyond reasonable doubt that the suit schedule properties are its

absolute properties. The following documents have been produced

before the trial court by the defendant no.7 - company for

establishing its title to the suit schedule properties:

a) Sale deed dated 14.4.1945 (Exhibit D-2)

b) Mortgage deeds dated 2.6.1961 and 2.1.1970 [Exhibits

D-5 and D-6 respectively]: Both the deeds were signed by the

plaintiff and other directors on behalf of the defendant No.7

company and this fact had been admitted by the plaintiff himself in

his cross examination;

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c) Compromise Petition filed by the plaintiff and other

defendants in the suit for partition bearing O.S.No.56/1969. In the

said petition, the plaintiff and other defendants too have expressly

confirmed, in paragraph 11 of the petition, that there are no other

property-movable or immovable whatsoever, to be divided amongst

them and belonging to joint family.

d) Grant certificate [Exhibit D-46] in respect of the item

no.2 property, confirming that the grant was in favour of the

defendant no.7 - company.

Therefore, it is contended that the trial court has rightly held

that when the plaintiff has asserted that the suit schedule properties

are joint family properties, the burden is on the plaintiff to

demonstrate that suit schedule properties are joint family properties.

(ii) It is further contended that one of the most pertinent

questions for consideration is whether the plaintiff could question

the entitlement of the defendant no.7 - company to the suit schedule

property in the light of the conduct of his late father V.L.Dhanram

Modaliar and V.L.Venugopal Modaliar having executed the Sale

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Deed dated 14.4.1945 (Exhibit D-2), wherein V.L.Dhanram

Modaliar has represented the defendant no.7 - company and

V.L.Venugopal Modaliar has represented M/s Standard Tile and

Clay Works Limited.

Reliance is placed on the following decisions:

1. B.L.Sreedhar and others vs. K.M.Munireddy and others, AIR

2003 SC 578.

2. Sunderabai and another vs. Devaji Shankara Deshpande, AIR

1954 SC 82,

3. Tata Iron and Steel Company Limited vs. Union of India and

others, AIR 2000 SC 3706

4. Indira Bai vs. Nand Kishore, AIR 1991 SC 1055

5. Jai Narain Parasrampuria and others Vs.Pushpa Devi Saraf and

others, (2006) 7 SCC 756,

It is contended that from the aforesaid judgments, it is

established that when a person, either by words or by conduct, has

consented to an act, which has been done and that he will offer no

opposition to it and he thereby induces others to do that from which

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they otherwise might have abstained, then such person cannot

question the legality of the act he had so sanctioned. Assuming, but

not admitting that transfer of property from M/s Standard Tile and

Clay Work Limited to the defendant no.7 - company under

registered sale deed dated 14.4.1945 is not a valid transaction, the

legal representatives of late V.L.Venugopal Modaliar and

V.L.Dhanram Modaliar are estopped from raising any claim against

the defendant no.7 - company for the following reasons:

a) Assuming that V.L.Venugopal Modaliar and

V.L.Dhanram Modaliar bought the suit schedule property (item

no.1) in their individual capacities; both the brothers were party to

the sale deed dated 14.4.1945 (which is marked as Exhibit D2).

During the said sale, V.L.Venugopal Modaliar represented as the

Director of M/s. Standard Tile and Clay Work Limited and

V.L.Dhanram Modaliar represented as the Director of the defendant

no.7 company;

b) Being parties to the sale deed dated 14.4.1945, both

V.L.Venugopal Modaliar and V.L.Dhanram Modaliar had expressly

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consented to the sale of the property by M/s. Standard Tile and Clay

Work Limited to the defendant no.7 without any opposition;

c) Based on the representations made by M/s Standard

Tile and Clay Work Limited, the defendant no.7 - Company has

altered its position by paying the consideration to it; and

d) Therefore, neither the plaintiff nor any other legal heirs

of V.L.Venugopal Modaliar and V.L.Dhanram Modaliar should be

allowed in any suit or proceeding between themselves and such

person or their representative to deny the transfer of title form M/s

Standard Tile and Clay Work Limited to the defendant no.7

company.

It is further pointed out that the High Court of Madras in

V.Baskaran and another vs. Manjula and others, 2013(2) MWN (Civil)

631, has held as under:

“if there are certain recitals in a registered document

then contra evidence cannot be adduced by either of the

parties”.

31

It was further held that “the recitals in a registered deed cannot be

given a go-by and the party who committed himself in black and white cannot

veer round and take an antithetical stand.”

The Apex Court in V.K.Surendra vs. V.K.Thimmaiah and others,

(2013)10 SCC 211, has observed that recitals in the documents are

binding on the persons who were parties to the said document.

The Apex Court in Vidhyadhar vs. Manikrao and another, AIR

1999 SC 1441, has observed that the intention is to gather from the

recital in the sale deed, conduct of the parties and the evidence of

record.

The High Court of Andhra Pradesh in Darisi Masthanamma vs.

Mandiga Rama Krishna, AIR 2006 AP 286, has observed that a party

to a document should not go back from the recitals in the document.

From the aforesaid decisions, it is contended that the true

intention of the parties to the document can be ascertained from the

recitals contained in the said document and the parties to the

document cannot ignore the recital to their benefit. In the present

case, the recitals of Exhibit D-2, which is the registered sale deed

32

dated 14.4.1945 state and confirm that the property (item No.1)

belongs to M/s Standard Tile and Clay Work Limited and the same

was acquired from the previous owners under a registered deed of

sale dated 03.02.1938 i.e., Exhibit D1. The said recital is reads thus:

“2. Whereas, the property denoted in the schedule

written hereunder belongs to the Vendor Company, the same

having been acquired by the Vendor from the previous

owners under a registered deed of sale dated 03.02.1938.”

Since both V.L.Venugopal Modaliar and V.L.Dhanram

Modaliar were parties, although as directors of the respective

companies, to the said deed, neither they or their representatives can

now go back on the recital and claim title to the property.

Therefore, the plaintiff is now estopped from going back on

the representation made in the Sale Deed dated 14.4.1945 wherein

both V.L.Venugopal Modaliar and V.L.Dhanram Modaliar were

parties to the said document.

(iii) It is contended that M/s Standard Tile and Clay Work

Limited is not the absolute owner of the suit schedule property (item

No.1) as claimed by the plaintiff, as an alternative submission, it is

33

contended on behalf of the defendant no.7 - company that the

execution of the sale deed dated 14.4.1945 (Exhibit D2) by M/s

Standard Tile and Clay Work Limited in favour of the defendant

No.7 - Company is squarely covered by Section 41 of the TP Act,

and therefore, M/s Standard Tile and Clay Work Limited can be

held to be the ostensible owner.

For application of Section 41 of the TP ct, the following

conditions need to be satisfied:

(a) The Transferor must be an ostensible owner;

(b) He must be held out to be so by the consent, express

or implied, of the real owner;

(c) The transfer must be for consideration; and

(d) The Transferee must have acted in good faith, taking

reasonable care to ascertain that the Transferor had power to

transfer.

The following authorities are relied upon:-

In Ramcoomar vs. Mac-queen, (1872)11 Beng LR 46, the Judicial

Committee of the Privy Council held as follows:

34

“It is a principle of natural equity which must be universally applicable

that, where one man allows another to hold himself out as the owner of

an estate and a third person purchases it, for value, from the apparent

owner in the belief that he is the real owner, the man who so allows the

other to hold himself out shall not be permitted to recover upon his secret

title, unless he can overthrow that of the purchaser by showing either that

he had direct notice, or something which amounts to constructive notice, of

the real title; or that there existed circumstances which ought to have put

him upon an enquiry that, if prosecuted, would have led to a discovery of

it”.

In the case of Sheshumull M Shah vs. Syed Abdul Rasheed and

others, AIR 1991 Kar 273, it is held as under:

“Section 41 incorporates a rule akin to the rule of

estoppel whereby the real owner, who by reason of his conduct

or express or implied consent, was responsible for the creation

of an ostensible ownership, cannot be permitted to set up his

real ownership to defeat the rights of a bona fide purchaser

acting in good faith and who despite reasonable enquiries could

not discover such real ownership.”

In Fazal Husain vs. Muhammad Kazim and others, AIR 1934 All

193, it is observed that Section 41 enacts a rule which a species of

estoppel, but falling short of the requirements of Section 115,

35

Indian Evidence Act, 1872 (Hereinafter referred to as the ‘Evidence

Act’, for brevity). If it is proved that the transfer is made with the

consent of the rightful owner, the case would fall within the purview

of Section 115 of the Evidence Act and the other conditions of

Section 41 need not be satisfied. Such consent will estop the owner

even though the transferee made no enquiries as to ascertain that the

transferor had power to make the transfer, a condition which is

essential to the application of Section 41.

In Ramjanam Ahir and others Vs. Beyas Singh and others, AIR

1958 Pat 537, it is held as follows:

“ The words used in Section 41 of the Act are clear

enough to indicate that the section does not require that the

transaction to be binding on the real owner must have been

entered into by the ostensible owner with the consent of the real

owner. For the application of this section, it is no doubt true

that with the consent of the true owner, the possession of the

ostensible owner must continue up to the date of the transfer;

but it is not at all necessary that the transfer itself should be

with the consent of the owner.”

36

In Kovvuri Satyanarayanamurthi and others Vs. Tetali Pydayya and

others, AIR (30) 1943 Mad 459, it is held as under:

“Section 41 after all is another species of estoppel when

the representation is not made directly to the representee but

when it consists in making it possible for the ostensible owners

to mislead those with whom they are dealing on account of the

special position of vantage in which they were placed by the

conduct, express or implied, of the real owners.”

In view of the principles laid down as above in the aforesaid

judgments, it is contended that the facts of the present cases are

completely covered under Section 41 of the TP Act, as all the

conditions contemplated under the said section is satisfied.

It is sought to be analysed thus:

a) the Transferor must be an ostensible owner: In this

case, M/s Standard Tile and Clay Work Limited is the ostensible

owner as it has represented itself to have acquired the property

under the registered sale deed dated 03.02.1938 as per the recital;

b) He must be held out to be so by the consent, express

or implied, of the real owner: M/s Standard Tile and Clay Work

37

Limited represented that it is the real owner by express consent of

both V.L.Venugopal Modaliar and V.L.Dhanram Modaliar as they

were also parties to the sale deed dated 14.4.1945;

c) The transfer must be for consideration: The transfer

of the suit schedule property (item no.1 of the schedule) was for

consideration of a sum of Rs.4800/- as evident from the recitals in

the said deed; and

d) The transferee must have acted in good faith, taking

reasonable care to ascertain that the Transferor had power to

transfer. The defendant No.7 company has purchased the property

from M/s. Standard Tile and Clay Work Limited based on the

representations contained in the said deed. M/s Standard Tile and

Clay Work Limited has expressly confirmed that it is absolute owner

of the property having purchased under the sale deed dated 3.2.1938

and both V.L.Venugopal Modaliar and V.L.Dhanram Modaliar have

consented to the said sale by M/s Standard Tile and Clay Work

Limited, by being parties to the said sale as representatives of the

respective companies. Therefore, the defendant no.7 - company had

38

to be considered as a bona fide transferee in terms of Section 41 of

the TP Act.

(iv) It is contended that V.L.Venugopal Modaliar and

V.L.Dhanram Modaliar, being parties to the sale deed dated

14.4.1945, had by express conduct, indicated that they consent to an

act which has done by M/s Standard Tile and Clay Work Limited

and that they have not offered any opposition to the said sale. In

fact, by being parties to the said sale deed, they have expressly

consented to the sale. Therefore, both V.L.Venugopal Modaliar and

V.L.Dhanram Modaliar and their legal representatives cannot now

question the legality of the act done by M/s Standard Tile and Clay

Work Limited, which was so sanctioned by them to the prejudice of

the defendant no.7 - company which had given faith to the words

and representations made by the parties to the said sale deed.

Attention is also drawn to a judgment of the Supreme Court

in Anathula Sudhakar Vs. P. Buchi Reddy and others, AIR 2008 SC 2033,

wherein it is held as under:

“We may however clarify that a prayer for declaration

will be necessary only if the denial of the title by the defendant

39

or challenge to plaintiff’s title raises a cloud on the title of

plaintiff to the property. A cloud is said to raise over a

person’s title, when some apparent defect in his title to a

property, or when some prima facie right of a third party over

it, is made out or shown. An action for declaration is the

remedy to remove the cloud on the title to the property.”

It is clear that when there is a cloud on the plaintiff’s title, it is

necessary for the plaintiff to seek for declaration. In the present

case, the plaintiff has admitted in this cross examination at page

No.39, of the paper book that he was aware of the execution of the

sale deed dated 14.4.1945, in favour of the defendant no.7 -

company and therefore it implies that the plaintiff was aware that

there is cloud on his title wherein sale deed dated 14.4.1945 has

confirmed prima facie title in favour of the defendant no.7 company.

That being so, it was imperative for the plaintiff to have filed a suit

for declaration challenging the sale deed dated 14.4.1945 under

Section 31 of the Specific Relief Act, 1963 (Hereinafter referred to as

the ‘SR Act’, for brevity). Since, the plaintiff has failed to challenge

40

the said sale deed within the limitation period, the plaintiff cannot

now contend that he can ignore the said sale deed and seek partition.

It is contended that apart from the above, the reliefs as prayed

for are merely consequential.

(v) It is pointed out that the trial court had also dismissed the

suit for partition filed by the plaintiff on the ground that the second

partition was not maintainable.

The trial Court had noted that there were earlier partitions

amongst the family members of V.L.Dhanram Modaliar. The

plaintiff himself had produced the partition deed dated 29.9.1962

which was marked as Exhibit P-12. In the said partition dated

29.9.1962, the parties thereto expressly agreed that the said partition

is only a partial partition. There was an express statement to this

effect at page no.21 of the paper book (Exhibit P-12). Subsequently

in the year 1969, the plaintiff filed a suit in OS 56/1969, seeking

partition of the entire joint family properties. A compromise was

arrived at by the parties to the suit bearing OS 56/1969. The

41

plaintiff had intentionally concealed the fact of filing of the partition

suit by him in the year 1969 in the present suit.

In the written statement filed by the defendant nos. 1, 3 to 7,

the said defendants had specifically pleaded in paragraph 17 as

follows:

“It would be relevant to point out at this stage that

the plaintiff himself had instituted a suit bearing

O.S.No.56/1969 in the Bangalore City Civil Court in

which the third defendant was a co plaintiff. The sixth

defendant and defendants 1 to 4 were defendants therein.

The said suit was instituted for partition and separate

possession of the plaintiff’s shares. The said suit ended in

a compromise wherein it is clearly declared in para 11 as

under:-

that there are no other property – movable or

immovable whatsoever to be divided amongst them and

belonging to joint family”

It may further be noted that the plaintiff himself in his further

evidence at page no.33 of the paper book has stated as follows:

42

“at para 11 of the said petition and the judgment and

decree in the above suit, it is mentioned by the parties to the

compromise that there is no other properties moveable or

immovable whatsoever to be divided amongst them and

belonging to the joint family. This is made only with reference

to the above said property at no.1 Langford Road a one and

has no connection whatsoever to other properties belonging

to out joint family including the Suit Schedule Property.”

Therefore, the plaintiff now cannot contend that the earlier

partition suit was only a partial partition.

It is pointed out that there is no reference to the said partition

in the plaint except to the extent of making bare averments that

there were certain partitions in the joint family. Therefore, the

plaintiff has not come to the court with clean hands.

A perusal of the Compromise Petition and the certified copy

of the final decree proceedings makes it clear that in

O.S.No.56/1969 filed by the plaintiff, the members of the joint

family have expressly confirmed that there are no other joint family

43

properties except the properties that are subject matter of the

partition suit bearing No.O.S.No.56/1969.

It is pointed out that exhibit D-39 at page no.304 of the paper

book confirms that the parties to the partition suit bearing

O.S.No.56/1969 filed by the plaintiff have reaffirmed that “there are

no other movable and immovable properties whatsoever to be

divided amongst them and belong to the joint family”. And that

although the trial court did not consider the note contained at page

no.304 of Exhibit D-39, which was made by the parties to the said

suit before the appropriate authority, the trial court has rightly come

to the conclusion that there was no reason for the plaintiff and the

defendants in the said suit for not including the suit schedule

properties in the said suit nor the plaintiff excluded the present suit

schedule properties in the compromise petition filed in

O.S.No.56/1969.

It is settled proposition of law that a suit for general partition

should encompass all the joint family properties both movables and

immovables should be brought into the hotch pot, so that equitable

44

division of all the joint property has to be made. However, only in

exceptional cases, the said rule may be relaxed and partial partition

may be allowed.

It is contended that the partial partition is permissible

provided:

a) The parties to the suit have expressly consented to such

exclusion in the pleadings; or

b) The parties by mistake have left out the said property

from the partition.

On the other hand, it is contended by Shri Raghavan, that it is

the case of the plaintiff herein that the parties to the said suit have

intentionally left out the property from the purview of partition and

that it was their intention to keep the suit schedule properties jointly.

It is the contention of the plaintiff that O.S.No.56/1969 filed

by him for partition of joint family properties was a partial partition

and not a general one. However, it is contended that the plaintiff

has failed to provide any material documents proving his

45

contentions. On the contrary, from a perusal of Exhibit D39 and

the Compromise Petition, it was evident and unambiguous that the

parties to the said suit did not consider the present suit schedule

properties as joint family properties. Even assuming that it was the

intention of the parties to the said suit to exclude the present suit

schedule properties, such intention should be expressly pleaded by

the parties to the said suit. On the contrary, the parties thereto had

expressly confirmed that there are no other joint family properties

except the properties to the schedule thereto.

Moreover, a second general partition suit is also barred under

Order II Rule 2 of the Code of Civil Procedure, 1908 as the plaintiff

had not produced any document to show that he took the leave of

the court for excluding the suit schedule properties.

It is contended that the plaintiff nor any other person who

was party to the suit for partition bearing O.S.No.56/1969, did not

challenge the note contained at page no.304 of the Exhibit D-39,

wherein it was stated that there are no other movable and

immovable properties whatsoever to be divided amongst them and

46

belong to the joint family. That being the case, it is now not open

for the plaintiff to state that the earlier partition was merely a partial

partition.

(vi) It is contended that the trial court had also dismissed the

suit for partition bearing O.S.No.874/1990 as barred by law of

limitation. The trial judge held that there were two earlier partitions

amongst the family members of late V.L.Dhanram Modaliar and that

this property was never consciously excluded from the partition of

the joint family properties. On the contrary, the parties to the

aforesaid compromise petition have expressly stated that there are

no other properties for partition except the suit properties of that

case. Therefore, the trial judge had held that in the year 1962 itself

or in the year 1969, the possession of the plaintiff was excluded from

the suit schedule properties and therefore 12 years have been and

therefore, the suit is barred in terms of Article 110 of the Limitation

Act, 1963 (Hereinafter referred to as the ‘Limitation Act’, for

brevity).

47

It is contended that, in the present case, the plaintiff was very

well aware of the execution of the sale deed dated 14.4.1945

conveying suit schedule properties (item no.1) in favour of the

defendant no.7. During his cross examination, the plaintiff has

admitted that the defendant no.7 was in possession of the property.

Moreover, the plaintiff himself has along with other directors had

mortgaged that suit schedule properties in favour of Karnataka State

Financial Corporation in the year 1962 and 1970. In addition to

that, the plaintiff, along with other defendants, in compromise

petition have expressly confirmed that there were no other

properties which form part of the joint family except the suit

schedule properties in that suit. Therefore, from the evidence

available on record, it can be said that the defendant no.7 has been

in exclusive possession of the suit schedule properties and thereby,

inferring ouster of the possession of the plaintiff herein and hence,

the trial court has rightly dismissed the suit as barred by limitation.

For the aforesaid reasons and based on the above

propositions of law, it is sought that this court dismiss the present

48

appeal and other two appeals filed by the Devaraj Dhanram -

Defendant No.2 and Smt. T. Vanajakshi – Defendant No.6(b), in

R.F.A.No.1219/2009 and R.F.A.No.1085/2009, respectively.

7. By way of reply, it is contended by Shri Ramanujam that in

so far as the contention that in D-39 at page No.304, there is a note

stating that there are no other properties movable or immovable

whatsoever, to be divided amongst them and belonging to the joint

family. It is pointed out that a plea of partial partition was not raised

in O.S.No.56/1969. There was no adjudication in O.S.No.56/1969

on merits and it ended in a compromise. In the family, there was a

practice of effecting partial partition and the law does not prohibit

the same. Simply because the plaintiffs had not sought for partition

of the present suit properties, in O.S.No.56/1969, it cannot be

concluded that the suit properties in this suit are not available for

partition.

Regarding Item No.1 of the suit schedule property, the

plaintiff has produced Exhibit P-1, the sale deed dated 03.02.1938 in

the name of Dhanram Modaliar and Venugopal Modaliar. The

49

plaintiff has produced Exhibit P-4, the record of rights in Form

No.5 in favour of the first defendant, the eldest son of Dhanram

Modaliar and kartha upon the demise of Dhanram Modaliar.

Exhibit P4 refers to Mutation IT 2/53-54. It was probably for

noting inheritance. Exhibit P5, the index of land records in Form

No.6 in which, Sy.No.73 is standing in the name of Dhanram

Modaliar and Venugopal Modaliar in column No.18 and there is

reference to D. Balakrishna Modaliar and in Column No.20, there is

reference to M.R.2/53- 54. So Exhibit P-4 and P-5, namely record

of rights and index of land records stood in the name of Dhanram

Modaliar and thereafter Balakrishna Modaliar, the eldest son.

Exhibit P4 and P5 are the certified copies obtained in 1988.

As against this, regarding Item No.1 of suit schedule property,

the defendant has produced Exhibits D2, D47 and D48. D-47 is

said to be of the year 1950. It mentions a mutation No.6/50-51. As

already stated, D-47 is said to be a photocopy, no negative has been

produced. It is not stated as to who took the photo. If it is alleged

to be a photocopy, whether photocopiers were available in 1950 is

50

doubtful. DW-1 is not competent to speak about Exh.D-47 because

he became the Company Secretary only in 1996 and he had admitted

that he had no personal knowledge. Exs.D-47 to D-50 have been

marked subject to objection by order dated 11.08.2006. This

objection had not been cleared. Even a cursory glance at Exhibit D-

47 shows that it cannot be relied upon. It is indicated that there is

an endorsement. It is not known as to who made the endorsement.

It is a printed format in RR Form No.XVIII, filled up in ink. It is

allegedly addressed to M/s. Firebricks and Potteries (P) Ltd., and it is

not known who received this, on what date it was received. It is

alleged that the addressee has purchased Sy.No.73 from Sri.

Dharman, which has been registered in the record of rights. This is

only a demand for money. Dharman is not the vendor. The vendor

under Exhibit D-2 is M/s. Standard Tile and Clay Works (P) Ltd.

represented by Venugopal Modaliar, not Dharman. Ex.D-47 is not

helpful to prove title of the seventh defendant.

Exhibit D-48 is again a photocopy, marked subject to

objection. This is said to be issued by the Village Panchayath to the

51

Proprietor of M/s. Standard Tile and Clay Works (P) Ltd.,

Yeshwanthapura. M/s. Standard Tile and Clay Works (P) Ltd., is

having its registered office at Feroke S. Malabar in Kerala, even as

seen from Exhibit D2. It is nobody’s case that M/s. Standard Tile

and Clay Works (P) Ltd., had an office in Yeshwantpura. There can

be no proprietor for a company. No name is mentioned. It is not

known as to how it was served either in person or by post. At the

bottom of Exhibit D-48, it says Annexure-A, after the word

memorandum, some numbers are mentioned and struck off. There

is a number 51 at the corner of the page. This is a photocopy from

some other copy. The document has not been proved and it is not

admissible in evidence. This cannot be used to show that M/s.

Standard Tile and Clay Works (P) Ltd. got title to Item No.1. It is

stated that a tax of Rs.25/- per annum has been levied for 1939-40

for factory buildings. There is no proof, no pleading, no evidence

that M/s. Standard Tile and Clay Works (P) Ltd. had a factory at

Yeshwantpura. Exhibit D2 sale deed does not say so. In Exhibit D-

2 sale deed, in the schedule, it does not speak of any factory building.

52

Schedule to Exhibit D2 sale deed says Rs.12/- has been assessed as

tax for both land and building, but Exhibit D-48 gives a different

picture. So, Exhibit D-48 cannot be relied upon to show that M/s.

Standard Tile and Clay Works (P) Ltd. had title in the year 1939.

Apart from that, the defendants have produced Exhibits D-8

to D-35 balance sheets. That will not prove title. In one of the

balance sheets, in the auditor’s report, there is a query in Exhibit D-8

that the company has not maintained records showing full

particulars including quantitative details and situations of fixed

assets. This refers to an auditor’s report and in the reply to the

auditor’s remarks, it is stated that records are being compiled. This

Director’s report is for the year ending 30.06.1979. So, this clearly

shows that the family members were running the company and no

one has applied their mind as to whether the seventh defendant had

title.

They have produced assessment of tax by Corporation dated

10.7.1969. It says that it is a special notice for assessment to building

tax. It refers to Door No.4, Tumkur Road, I Division. The same

53

will not create any title. Further, they have produced Exhibits D-49

to D-63. Most of them are after the date of institution of the suit

and they have no bearing on the title and most of them are

photocopies. So, mere assessment of tax or payment of tax or

communication from revenue authorities will not convey title, if the

seventh defendant otherwise had no title to Item No.1 of the suit

schedule property.

It is further contended that the plaintiff need not ask for

declaration of Exhibit D-2, sale deed as null and void or seek

cancellation of the said document. The Plaintiff can simply ignore

the same. Section 31 of the SR Act in Chapter V uses the word

“may”. This is not a case in which the plaintiff should seek for

declaration to cancel Exhibit D-2 sale deed.

Section 31 of the SR Act in Chapter V and Section 34 in

Chapter VI operate in different fields. The option is given to the

plaintiff either to seek the relief under Section 31 or under Section

34. The reason is, the word used in Section 31 is “may” and it ends

by saying the cancelled deed has to be delivered up. To whom is the

54

question? It is for the plaintiff to decide whether he has got any

apprehension of mischief or injury by the so called instrument. If

the plaintiff is not a party to such an instrument, he can simply

ignore the same and sue for declaration of his title. If there is a

question of rival title, the plaintiff can sue for declaration under

Section 34 with the consequential relief. In this case, the plaintiff

has sought for declaration that the plaintiff and defendants 1 to 6 are

the owners of item Nos.1 and 2 of the suit schedule property. They

claim title for item No.1 based on the registered sale deed of the year

1938, Exhibit P.1 and Exhibit D.1.

Regarding item no.2, they rely upon record of rights and

index of lands marked as Exhibits P2 and P3.

The plaintiff has also sought for the consequential relief of

partition of his 1/7th share.

The seventh defendant has claimed rival title based on Exhibit

D2 of the year 1945. That is why, in the suit, issue no.1 has been

framed as to whether the seventh defendant proved title. Issue no.1

has been framed throwing burden on the seventh defendant for valid

55

reasons, because Exhibit P1 traces title to item 1 of the suit schedule

property based on the registered sale deed in Exhibit P1, which is an

admitted document. But, the question is whether the vendor under

Exhibit D-2 namely, M/s. Standard Tiles and Clay Works (Private)

Limited has got a right to execute Exhibit D-2 purportedly

conveying item 1 of the suit schedule property by relying upon

Exhibit P1. Admittedly, under Exhibit P1, the purchasers are two

individuals. Hence, it is for the seventh defendant to prove as to

how M/s. Standard Tiles and Clay Works (Private) Limited can claim

to be the owner of item no.1, when they have not purchased it under

Exhibit P1. That is why the burden is put on the seventh defendant.

So in this suit, the rival title is being adjudicated.

Hence, the suit falls under Section 34 of the SR Act. Section

31 is in Chapter V with the heading “Cancellation of Instruments”.

Section 34 do not say, it is subject to Section 31. It is for the

plaintiff to choose the remedy and the plaintiff can elect.

It is settled law that even 100 years of possession will not

create title unless and until there is a plea of adverse possession.

56

Unless and until there is a plea of adverse possession, the question

of title does not arise. In the case at hand, there is no plea of

adverse possession. The seventh defendant do not admit the title of

the plaintiff, the plaintiff do not admit the title of the seventh

defendant. So the issue is who is having title. There is no question

of limitation because there is no plea of adverse possession.

In this regard, para 18 of the written statement filed by the

seventh defendant is relevant, it reads as follows:

“The statement that any attempt is being made to deny

plaintiff’s right in the suit schedule properties and to deprive of his

rightful share in the suit schedule properties is absolutely false. The

plaintiff had no right in the suit schedule properties at any point of time

and the question therefore of any attempt being made to deprive the

plaintiff’s alleged rights in the suit schedule properties does not arise at

all.”

It is contended that the seventh defendant claims to be in

possession as owner. He does not claim title by adverse possession.

The trial court has held that only Article 65 and 58 of

Limitation Act, will get attracted. In this case, the defendants have

57

not pleaded adverse possession. Hence there is no question of

limitation at all.

In Anathula Sudhakar vs. P. Buchi Reddy (dead) by LR’s and others,

AIR 2008 SC 2033, it has been held that when there is a cloud over

the plaintiff’s title, he has to sue for declaration and possession.

That has no application to the facts of this case. On the facts of this

case, the family members were in possession as they were managing

the seventh defendant company. As between family members, there

were no disputes. The seventh defendant never made any specific

claim denying the title and according to them, the seventh

defendant was the owner. That is why they have not raised the plea

of adverse possession. In 1989, disputes arose and third parties

wanted to take over the seventh defendant company and defendants

1 to 6 colluded with such third party and disputes arose. The cause

of action arose for the first time in 1989-90 which resulted in filing

of the suit and third party claims to possession acting in collusion

with defendants 1 to 6.

58

It is contended that the statement contained in Exhibit D-5

and D-6, mortgage deeds attributed to the plaintiff, may be used as

an admission against the plaintiff that the plaintiff has admitted that

the seventh defendant is the owner of Item No.1. An admission is

of fact. There cannot be any admission regarding a right. A right in

immovable property worth more than Rs.100/- can be conveyed or

transferred only by a registered document. Mere admission would

not transfer or convey title. Even acquiescence cannot create title.

Acquiescence is a conduct which may be a relevant fact to apply the

procedural law like estoppel, waiver or acquiescence, but thereby no

title can pass. If in law, a person does not acquire title, the same

cannot be vested only by reason of acquiescence or estoppel on the

part of other. It is contended that in this regard, the principles of

law laid down in the case of Kamakshi Builders vs. Ambedkar Education

Society and Others (2007) 12 SCC 27 and in the case of Karnataka Board

of Wakf vs. Government of India and others (2004) 10 SCC 779 are

relevant.

59

On the question of estoppel, the decision of the Apex Court

in Chhaganlal Keshavlal Mehta vs. Patel Narandas Haribai, (1982) 1 SCC

223 is relied upon.

It is contended that there is no scope to raise the question of

estoppel on the facts of the present case at all, for the following

reasons:

a) If at all there was any representation, it was by Venugopal

Mudaliar that M/s. Standard Tile and Clay Works (P) Ltd.,

represented by him as Managing Director, owned Item No.1 of the

suit schedule property. This representation is on the face of it,

incorrect on a mere perusal of Exhibit P-1. So, this representation

or admission is erroneous.

b) Dhanram Mudaliar had not made any representation.

Simply because he is a party to Exhibit P-1 or Exhibit D-1, he is not

the vendor. By this, no title would pass on to seventh defendant

because, M/s. Standard Tile and Clay Works (P) Ltd., never had title.

c) If Exhibit D2 is treated as a sale deed executed by

Venugopal Mudaliar in his individual capacity, at worst, it could

60

cover only a half share, which is 6 acres and 2 gunta. Whether

Venugopal Mudaliar would be estopped from questioning the title of

the seventh defendant, regarding 6 acres and 1 gunta is a different

issue, because in this case, the plaintiff had made a claim of one

seventh share of 6 acres and 1 gunta belonging to his father

Dhanram Mudaliar. Dhanram Mudaliar had not made any

representation. Dhanram Mudaliar had not conveyed anything.

d) It is not the case of the seventh defendant that they have

changed their former position or altered their former position to

their prejudice, because it is the specific case of the seventh

defendant that they have got title under Exhibit D-2. So, the theory

of estoppel is not applicable to the facts of this case at all.

e) As stated above, if the seventh defendant had raised the

plea of adverse possession, the plea of estoppel may be available.

So, the seventh defendant should admit that they did not get any title

under Exhibit .D-2 and that they have been in continuous

possession having an animus possidendi against the true owners and

there is acquiescence and admission and as a course of conduct and

61

as such, the true owners have lost title by their conduct for a

continuous period of 12 years by allowing the seventh defendant to

be in adverse possession.

It is contended that the reasoning of the Trial Court that

because of the Mortgage Deeds, the seventh defendant is the owner,

is a finding which is contrary to law and thus liable to be set aside.

In so far as the application of Section 41 of the TP Act is

concerned, the heading of that Section is “transfer by ostensible

owner”. It is contended that an ostensible owner is a person in

whose favour the instrument stands. The person whose name

stands in the instrument as purchaser will be the ostensible owner.

The real owner may be somebody else in some cases. Take the case

of a Benami transaction, the instrument may stand in the name of X

as purchaser, but Y may claim that he is the real owner. That is why,

if a dispute arises, the presumption will be the ostensible owner is

the owner. The real owner has to prove that the ostensible

ownership is wrong. If it is admitted that X is the ostensible owner

and Y is the real owner and based upon ostensible ownership, X

62

transfers the property with the implied or express consent of Y, then

Y will be precluded from questioning the title of the purchaser from

X. But on the facts of this case, the purchasers under Exhibit P1 are

two individuals, Dhanram and Venugopal. The seventh defendant’s

contention that they are only ostensible owners and the real owner is

M/s. Standard Tiles and Clay Works (Private) Limited. This the

defense set up by the seventh defendant in contending that the

above said two persons purchased the properties as directors of two

companies for the benefit of the two companies. It is for the

seventh defendant to prove the same. No evidence has been let in,

no proof is forth coming. Now, the argument proceeds on the

wrong assumption that M/s. Standard Tiles and Clay Works

(Private) Limited is the ostensible owner. This is only a surmise.

Exhibit P-1, purchase deed does not say so. So, Section 41 is not at

all attracted. There is no pleading, there is no evidence and there is

no proof that M/s. Standard Tiles and Clay Works (Private) Limited,

is the ostensible owner. On the other hand, the ostensible owners

and real owners are the two brothers Dhanram and Venugopal.

63

M/s. Standard Tiles and Clay Works (Private) Limited is a stranger

to Exhibit P1 and has no title for the property covered by Exhibit P-

1, but chose to create a sale deed purporting to convey property

covered by Ex.P1 making an untrue statement that the company

purchased the property covered by Exhibit P1. This is the very issue

in the suit. Section 41 of the TP Act was rightly not argued before

the trial court. There is no pleading, no evidence and no issue was

framed in respect of Section 41 of the TP Act. This is a new case

setup and even this is based on surmises and conjectures. The plea

referring to Section 41 of the TP Act, is not a mere question of law.

It is a question of fact and law. There is no fact pleaded. Hence,

reference to Section 41 is wholly misconceived. As a question of

law, we can refer to the proviso to Section 41 of the TP Act.

First of all, the seventh defendant has not pleaded that they

have purchased from ostensible owner and the question of good

faith was also not been pleaded if Ex.P1 sale deed is seen, it is clear,

on the face of it, that M/s. Standard Tiles and Clay Works (Private)

Limited is not the purchaser. As regards that there has to be specific

64

pleadings pertaining to Ostensible Ownership to attract Section 41

of the TP Act. On the facts of this case, referring to Section 41 of

the TP Act does not arise at all in view of what is stated above. The

Plea of Section 41 is raised for the first time during the course of

oral submissions of defendant no.7.

Coming to item 2 of suit schedule properties, in para 6.03 the

learned judge says that Ex.P2, P4 and P5 pertains to item 2. There is

a factual error here. Exhibits P2 and P3 pertains to item no.2, Ex.P4

and P5 pertain to item no.1. The learned judge clearly mentions that

it is in the name of Balakrishna Modaliar. But the learned judge says

that subsequently occupancy rights were in favour of the first

defendant. This is the case of the plaintiff that the first defendant

was the first son, and became the karta after the demise of Dhanram

Modaliar. The learned Judge has not referred to Exhibit P3. The

learned judge has relied upon Ex-D46. Ex-D46 is again a photo

copy marked subject to objections. Ex-D46 is a printed format with

blanks. There is reference to “as per 565/51, 52” this document

speaks of some auction and this document has not been proved to

65

be true. It is not signed by anyone. The date is not clear. It is full

of blanks. Mere, Exhibit D-46 which is said to be a photocopy

which has not been proved in a manner known to law cannot create

title to the seventh defendant.

On the other hand, the plaintiff has produced Ex-P2 and P3.

There is a presumption regarding correctness of the entries in

Exhibit P2 and Exhibit P3 as per Section 133 of Karnataka Land

Revenue Act. It is in the name of Balakrishna Modaliar. It is a

certified copy applied in 1988-89. There is a reference to the year

1963-64. Item 2 is standing in the name of Balakrishna Modaliar.

Ex-P3 is index of lands. Here also there is reference to

365/51-52. Exs. P2 and P3 are certified copies applied by Managing

Director of seventh defendant Mr. Narasimha Murthy. This clearly

shows it was in the name of Balakrishna Modaliar, eldest son of

Dhanram Modaliar and after the demise of Dhanram Modaliar, it

has been transferred in the name of his eldest son, D. Balakrishna

Modaliar.

66

Thus, based on Exs.P2 and P3, the plaintiff has made out a

case. As against Exs.P2 and P3, the defendant has produced only

Ex.D-46. The learned judge relying upon Exhibit D46, which was

marked subject to objection, has erroneously held that item 2 of suit

schedule property belonged to the seventh defendant.

The learned judge has held in para 6.03 that Exhibit D37,

which is a certificate issued by the Director of Industries and

Commerce is not enough to show that the properties were

converted into non-agricultural property. The learned judge holds

that the tax receipts and these exhibits corroborates to establish that

item 1 of suit schedule exclusively belongs to seventh defendant.

At the end, he holds that viewing from any angle he is of the

view that the suit schedule property belongs to the seventh

defendant company. This finding is erroneous and contrary to law.

At the end of para No.6.04, the learned judge holds that since

there is already a partition in the year 1962 and therefore second

partition is not maintainable. The suit for partition is perfectly

67

maintainable, because the plaintiff can seek for partition only after

adjudication on the question of rival title.

Article 110 of Limitation Act will not come into play. There

is no pleading in the written statement that the suit schedule

properties were joint family properties and that the plaintiff was

excluded from possession by ouster and the plaintiff has lost title by

ouster and adverse possession. The defendants have not admitted

that the suit schedule properties were joint family properties. There

should be pleadings, there should be evidence. The seventh

defendant company cannot be a member of a joint family. Non-

inclusion of the property in the partition deed of 1962 and

O.S.No.56/69 will not amount to exclusion of the plaintiff from

possession by a member of joint family. Thus, the finding of the

learned judge that 12 years have elapsed form 1962 and 1969 and

hence the suit is barred by limitation is a finding which is contrary to

law and Article 110 is not at all applicable.

On the question of limitation, an argument was put forward

stating Exhibit D38 and D39, partition suits not referring to the

68

present suit properties will amount to exclusion within the meaning

of Article 110 of the Limitation Act. Reference was made to page

304 of the typed set of papers and attention was shown to a note at

the bottom stating that the parties to that suit have made a note that

there are no other properties to be partition. This endorsement is of

the year 1981. It was argued that this note would amount to

exclusion of the plaintiff. This is without any basis . This note

cannot be called as exclusion for the purpose of Article 110 of the

Limitation Act. Exclusion is a positive overt act. The so-called

statement in the form of a note will not, at any stretch of

imagination, be called as exclusion for the purpose of Article 110 of

the Limitation Act.

The whole argument is academic because the note is of the

year 1981 and the suit has been filed on 07.02.1990, within 9 years.

So, 12 years have not elapsed. This is pointed out only to show that

this argument is baseless.

If the note at page 304 is sought to be used as an admission, it

can always be proved to be erroneous or untrue and in this case, it is

69

so. It is settled law that the so called erroneous admission will not

raise title. Exhibit P1 clearly shows that the property was owned by

Dhanram Modaliar and Venugopal Modaliar and they have not

divested themselves of their title to the property covered by Exhibit

P-1, which is item 1 of the suit schedule of property. On the death

of Dhanram, as per Hindu Succession act, the plaintiff and

Defendants 1 to 6 are entitled to a share by birth. So the so called

note is erroneous and it will not take away the title. The seventh

defendant was not a party to O.S.56/1969 which ended in Exhibit

D-39 in 1981. No statement has been made to the seventh

defendant. The so called note says, the parties to the suit

O.S.No.56/69 which ended in a compromise, have made a

statement which is called as a note at page 304 of the typed set of

papers. The 7th defendant cannot use it for any purpose. The

defendants 1 to 6 want to use it, they have to prove it. At worst,

this so called note may be called as an admission between plaintiff

and defendants 1 to 6, which is on the face of it erroneous. That is

why the defendants 1 to 6 have chosen not to enter the witness box.

70

Thus, in any view of the matter, the judgment and decree of the trial

court is contrary to law, contrary to the evidence available on record,

contrary to settled principles of law and is liable to be set aside.

The appellant therefore prays that the judgment and decree of

the trial court may be set aside and the above appeal may be allowed

with exemplary costs.

8. On a consideration of these rival contentions and on a

close examination of the record, it is seen that as regards the finding

of the trial court that Defendant no.7 had proved title to the suit

schedule property and that the plaintiff had failed to prove joint

possession and that he was not entitled to the relief of partition is

with reference to Issue nos.1,4 and 5 decided by the trial court

together.

The court below has proceeded on the basis that the father of

the plaintiff, V.L.Dhanram Modaliar, and his uncle, V.L.Venugopal

Modaliar had formed two companies, M/s Fire Bricks and Potteries

Private Limited and M/s Standard Tile and Clay Works Limited,

71

subsequent to the purchase of the suit property under Exhibit D-1

dated 3.2.1938.

There is no evidence to support this observation or if it is

called as a finding, it is not proved by any evidence. On the other

hand, even as seen from the written statement of defendants 1 and 3

to 7 in para 8, it is clearly stated that the companies were already

incorporated and the two brothers acquired the property not for

their own personal benefit, but acquired as directors of the

companies incorporated under the provisions of the Companies Act.

There is also evidence to show that the seventh defendant -

company was incorporated before 03.02.1938. The seventh

defendant company has been incorporated in the year 1935, as seen

from Exhibit D-9 at page 107 of the typed set of documents and

also as seen from page no.258 etc., which are balance sheets of the

seventh defendant company. Thus, there is documentary evidence

in the form of balance sheets filed by the defendants themselves to

show that the seventh defendant was incorporated in the year 1935.

It is seen from para 8 of the written statement that M/s. Standard

72

Tile and Clay Works (Private) Limited was already incorporated

under the Companies act and the two brothers were its directors.

The trial court has also accepted the case of defendant no.7

that the suit property having been mortgaged under Exhibit D-5 and

D-6 , would indicate that the said defendant had exercised a right of

ownership, to the knowledge of the plaintiff and the other

defendants as they had also been signatories to the mortgage deed as

guarantors. But however, this proposition could be accepted if in

the first instance ownership had indeed been conferred on

Defendant no.7 by virtue of Exhibit D-2. But if Exhibit D-2 did not

convey title to the seventh defendant, mere mortgaging the property

by the seventh defendant claiming as owner and the plaintiff and

defendants 1 to 5 joining in the said mortgage deed will not confer

title to the seventh defendant if the seventh defendant had otherwise

did not get title under Exhibit D2.

The statement contained in Exhibits D5 and D6, mortgage

deeds, may be used as an admission against the plaintiff that the

plaintiff has admitted that the seventh defendant is the owner of

73

item 1. An admission is of fact. There cannot be any admission

regarding a right. A right in immovable property worth more than

100 rupees can be conveyed or transferred only by a registered

document. Mere admission will not transfer or convey title.

If in law, a person does not acquired title, the same cannot be

vested only by reason of acquiescence or estoppel on the part of

other.

In this regard the following opinion expressed in Kamakshi

Builders Vs. Ambedkar Education Society and others, (2007) 12 SCC 27, is

relevant.

“23. Acquiescence on the part of Respondent No. 1, as has been

noticed by the High Court, did not confer any title on Respondent No. 1.

Conduct may be a relevant fact, so as to apply the procedural law like

estoppel, waiver or acquiescence, but thereby no title can be conferred.

24. It is now well-settled that time creates title.

25. Acquisition of a title is an inference of law arising out of

certain set of facts. If in law, a person does not acquire title, the same

cannot be vested only by reason of acquiescence or estoppel on the part of

other.”

74

It is contended that in 1962, there was a partial partition

covered under Exhibit P-12. A reading of Exhibit P.12 makes it

very clear that the partition deed was only in respect of one property

namely, No.1, Langford Road, Civil Station, Bangalore and a vacant

piece of land, south of it as acquired by Dhanram Modaliar, out of

his self-acquired funds. The partition deed recites that the two

properties were amalgamated and a house was constructed and a

private road was laid by late Dhanram Modaliar and that the

intention was to put up their individual buildings. It is stated that

there is a portion which is not the subject matter of the partition.

Hence, the mere fact that suit property has not been included in

O.S.No.56/1969, it cannot be concluded that the suit properties are

not properties available for partition and they are the properties of

the seventh defendant.

In Exhibit D-39 at page No.304, there is a note stating that

there are no other properties movable or immovable whatsoever to

be divided amongst them and belonging to the joint family.

75

The learned Trial Judge does not rely upon this endorsement

stating that it is not incorporated in the body of the decree. A plea

of partial partition was not raised in O.S.No.56/1969. There was no

adjudication in O.S.No.56/1969 on merits and it ended in a

compromise.

The following factors are relevant in addressing whether

Exhibit D-2 confers title on Defendant no.7 :

a) The vendor is mentioned as M/s. Standard Tiles and Clay

Works (Private) Limited, represented by its Managing Director

Venugopal Modaliar and the purchaser is M/s. Fire Bricks and

Potteries (Private) Limited incorporated under Mysore Companies

Act represented by its Managing Director Dhanram Modaliar.

b) Para 2 of the sale deed indicates that the schedule

property belongs to the vendor – company, having been acquired by

the vendor from the previous owners, under a registered sale deed

dated 3.2.1938. But the registered sale deed dated 03.02.1938 proves

otherwise.

76

c) There is no recital that the two brothers purchased it as

directors of the company or on behalf of the company as pleaded in

the written statement. Here also the sale consideration is mentioned

as Rs.4800/-. It is not shown how this sum or Rs.4800/- was paid,

whether by cash or cheque, when it was paid there is no proof.

There is no specific recital regarding delivery of possession.

d) There is no resolution of the Board of Directors of the

company. There is no seal of the company much less the common

seal or seal of the Managing Director or even a rubber stamp of the

Managing Director as alleged.

e) There is no proof that M/s. Standard Tiles and Clay

Works (Private) Limited, owned the property covered by Exhibit P1

anywhere. No evidence has been produced. It is clearly a sale deed

by Venugopal in favour of Dhanram Modaliar. Hence Exhibit D-2

will not create any title to the seventh defendant.

f) Even if Exhibit D-2 is construed as a sale deed by

Venugopal Modaliar, as an individual, he can only convey 6 acres

77

and 1 gunta being his half share. The 6 acres and 1 gunta, namely

the other half share owned by Dhanram Modaliar is intact.

g) This is the reason why the plaintiff has asked for

partition of the extent of 6 acres and 1 gunta. If probabilities could

be seen, it was only the family which has been in possession of both

items 1 and 2 of the suit schedule properties and they have been

running the seventh defendant company. There was no third party

involved. It appears disputes had arisen when defendants 1 to 5

tried to sell the property by selling their shares to third parties. The

plaintiff was also said to have been forced to part with his shares. It

is thereafter that third-parties engaged in real estate business had

come into the picture, who are said to have had an eye on the

property which is to-day very valuable and the plaintiff had filed the

suit at that juncture. Thus, there is a clear cause of action for the

suit.

As regards the contention of Defendant no.7 that the plaintiff

is estopped from questioning its entitlement to the suit properties is

concerned, it is seen that the representation made by Venugopal

78

Mudaliar that M/s Standard Tile and Clay Works Limited,

represented by him as Managing Director, owned Item no.1 of the

suit properties was not apparent from Exhibit P-1, this was an

incorrect statement. Dhanram Mudaliar the other co-owner, had not

made any statement, he was purportedly acting for the purchaser.

Hence no title would pass to Defendant no.7. M/s Standard Tile

and Clay Works Limited never had title to the property. Even if

Exhibit D-2 is treated as a sale deed executed by Venugopal

Mudaliar, it would at best cover his half share, namely, 6 acres and 2

guntas. However, the plaintiff cannot be said to be estopped from

making a claim to one-seventh share of his father’s share of the

property. He had not conveyed the same. There is no plea of

adverse possession set up by defendant no.7, either. Hence its

continuous possession of the property even if unquestioned would

not confer title.

In so far as the reasoning of the trial court that having regard

to the fact that in the suit for partition filed in OS 56/69, the suit

properties had not been included and therefore it would follow that

79

the suit properties were not joint family properties is concerned, it is

seen that in 1962, there was a partial partition covered by Exhibit P

12. A reading of Exhibit P 12 makes it very clear that the partition

deed was only in respect of one property namely NO.1, Langford

Road, Civil Station, Bangalore and a vacant piece of land, south of it

as acquired by Dhanram Modaliar out of his self-acquired funds.

The partition deed recites that the two properties were amalgamated

and a house was constructed and a private road was laid by late

Dhanram Modaliar and that the intention was to put up their

individual buildings. It is stated that there is a portion which is not

the subject matter of the partition. Hence, the mere fact that suit

property has not been included in O.S.No.56/1969 it cannot be

concluded that the suit properties are not properties available for

partition and they are the properties of the seventh defendant.

In Ex.D-39 at page No.304, there is a note stating that there

are no other properties movable or immovable whatsoever to be

divided amongst them and belonging g to the joint family. The

learned trial judge does not rely upon this endorsements stating that

80

it is not incorporated in the body of the decree. A plea of partial

partition was not raised in O.S.No.56/1969. There was no

adjudication in O.S.No.56/1969 on merits and it ended in a

compromise.

In so far as the contention of Shri Raghavan as regards the

application of Section 41 of the TP Act is concerned, he has, as

already noted hereinabove, sought to develop an argument, which

Shri Ramanujam complains is a new case sought to be set up for the

first time before this court, without having laid any foundation by

way of pleadings or evidence. However, it is to be observed that

Section 41 of the TP Act reads thus :

“41. Transfer by ostensible owner.- Where,

with the consent, express or implied, of the persons

interested in immovable property, a person is the

ostensible owner of such property and transfers the

same for consideration, the transfer shall not be

voidable on the ground that the transferor was not

authorized to make it:

Provided that the transferee, after taking

reasonable care to ascertain that the transferor had

power to make the transfer, has acted in good faith.”

81

With regard to the above Section, an ‘ostensible owner’ would

be a person in whose favour the title deed stands. The real owner

may be another. An example would be a benami transaction. If a

dispute arises in such cases, the presumption would be that the

ostensible owner is the owner. The real owner would have to prove

otherwise. If the property is transferred by the ostensible owner

with the implied consent or to the knowledge of the real owner, then

the real owner would be precluded from questioning the transfer.

But on the facts of this case, the purchasers of the dispute

property were Dhanram Modaliar and Venugopal Modaliar. It was

the claim of Defendant no.7 that they were ostensible owners. And

the real owner was M/s Standard Tile and Clay Works Limited. In

that, it was claimed that they had purchased the property in their

individual names no doubt, but were in fact, acting as Directors of

the company, which was yet to be incorporated as on the date of the

transaction. However, the sale deed does not mention the same.

Hence, the application of Section 41 of the TP Act does not arise.

82

In so far as the contention that the plaintiff ought to have

sought for the relief of declaration that Exhibit D-2 was a void

document, is concerned, it is for the plaintiff to opt to seek relief

either under Section 31 or under Section 34 of the SR Act.. When

the plaintiff was not a party to the transaction, he is not precluded

from seeking a declaration of his title. And especially if there is a

dispute regarding title, he can sue for declaration under Section 34

of the SR Act.

As regards the finding of the trial court that the suit is barred

by limitation, is concerned, there is no pleading in the written

statement that that suit schedule proprieties were joint family

properties and that the plaintiff was excluded from possession by

ouster and the plaintiff has lost title by ouster and adverse

possession. The defendants have not admitted that the suit schedule

properties were joint family properties. There should be pleadings

and there should be evidence. The seventh defendant company

cannot be a member of a joint family. Non-inclusion of the

property in the partition deed of 1962 and O.S.No.56/1969 will not

83

amount to exclusion of the plaintiff from possession by a member of

joint family. Thus, the finding of the learned judge that 12 years

have elapsed from 1962 and 1969 and hence the suit is barred by

limitation, is a finding which is contrary to law Article 110 of the

Limitation Act, is not at all applicable.

The further contention canvassed by defendant no.7 namely,

that Exhibits D-38 and D-39, the partition suits do not refer to the

present suit properties and hence would amount to exclusion within

the meaning of Article 110 of the Limitation Act, and in particular

the note appended to the Compromise Decree of 1969, to the effect

that there are no other properties to be partitioned. The same

cannot be called an exclusion for the purposes of Section 110.

Exclusion is a positive overt act. In any event, if it is shown to be

erroneous, it would not affect title. The plaintiff was not a party to

any such note made on the decree and no statement had been made

to defendant no.7.

In so far as Item no.2 of the suit properties is concerned , the

trial court has erroneously held that Exhibits - 2,4 and 5 pertain to

84

the said property. It is only Exhibits P-2 and P-3 that pertain to the

said property. There is no reference to Exhibit P-3 by the trial court.

Reliance on the other hand is placed on Exhibit D-46, a photocopy

of a printed form, the same had been marked to objection. It is an

unsigned document and is vague. Even the date is not forthcoming.

This document could hardly establish title to the property.

On the other hand, the plaintiff has produced Exhibits P2

and P3. There is a presumption regarding correctness of the entries

in Exhibit P2 and Exhibit P3 as per Section 133 of Karnataka Land

Revenue Act, 1964. It is in the name of Balakrishna Modaliar. It is a

certified copy applied in 1988-89. There is a reference to the year

1963-64. Item 2 is standing in the name of Balakrishna Modaliar.

Ex.P3 is index of lands. Here also, there is reference to

365/51-52. Ex.P2 and P3 are certified copies applied by Managing

Director of seventh defendant Mr. Narasimha Murthy. This clearly

shows it was in the name of Balakrishna Modaliar, the eldest son of

Dhanram Modaliar and after the demise of Dhanram Modaliar, it

85

has been transferred in the name of his eldest son, D. Balakrishna

Modaliar.

Thus, based on Ex.P2 and P3, the plaintiff has made out a

case. As against Exhibits P2 and P3, the defendant has produced

only Exhibit D-46. The learned judge relying on Exhibit D-46,

which was marked subject to objection, has erroneously held that the

item 2 of suit schedule property belonged to the seventh defendant.

The learned judge has held in para 6.03 that Exhibit D-37

which is a certificate issued by the Director of Industries and

Commerce is not enough to show that the properties were

converted into non-agricultural property. The learned judge holds

that tax receipts and these exhibits corroborates to establish that

item 1 of suit schedule exclusively belongs to seventh defendant.

In the light of the above, the appeals are allowed and the

judgment and decree of the court below is set aside and the suit is

86

decreed as prayed for. A preliminary decree shall be drawn up in

terms of the same.

Sd/- JUDGE

nv*