IN THE COURT OF THE CITY CIVIL JUDGE AT BENGALURU
(CCH- )
O S NO. 7922/2023
BETWEEN:
SMT. DEEPA SHIVAKUMAR PLAINTIFF
AND:
SMT. USHA SHIVAKUMAR AND OTHERS DEFENDANTS
WRITTEN STATEMENT OF THE DEFENDANTS UNDER ORDER 8
RULE 1 OF THE CODE OF CIVIL PROCEDURE
The Defendants most respectfully submit as follows:-
1) The suit of the plaintiff is highly frivolous, vexatious, trained with malafide
objects, illegal motives guilty of misuse and abuse of the due process of law.
Hence the suit is liable to be dismissed.
2) The plaintiff is guilty of suppressio–veri and suggestion-falsie and as such, the
plaintiff has not approached this Hon’ble court with clean hands seeking the
relief at the hands of this Hon’ble court. Hence on this ground also, the suit of
the plaintiff is not sustainable.
3) With regard to averments made in plaint at para 4 to 8 the first defendant
admits all the averments made therein except the averments made to the effect
that after the death of plaintiff’s father Dr M N Shiva Kumar the first defendant
was managing the affairs of suit schedule properties on behalf of legal heirs of
her father and further averments made to the effect that first defendant opposed
marriage of the plaintiff with Sri Dhruva Venkatasetty. It is submitted that
these averments are made only to mislead this Hon’ble court to claim the relief,
which the plaintiff is otherwise not entitled to.
4) With regard to para 9 of the plaint it is no doubt true that the item No 1 of suit
schedule property stood in the name of plaintiff’s father, who was a doctor and
who is none other than the husband of first defendant and also father of second
and third defendant. However it is emphatically denied that plaintiff father was
the owner of Item No 1 of suit schedule property. The plaintiff being well
aware of the fact that the first defendant had contributed a sum of Rs 20,000/
towards purchasing of Item No 1 of suit schedule property, the plaintiff has
deliberately suppressed this material facts to mislead the court and pleaded that
the item No 1 of suit schedule property the plaintiff father alone had purchased
it. It is submitted that out of Rs 50,000/-savings made by first defendant, the
first defendant contributed a sum of Rs 20,000/ towards payment of
consideration amount to her husband at the time her husband had purchased
item No 1 of suit schedule property. These savings first defendant had made
from the contribution her husband, father and brothers made to her by way of
presents and gifts received in kind and cash on her Wedding Anniversary,
Birthday, Festivals and other occasion. The plaintiff despite being aware of the
fact that it was first defendant, who had substantially contributed to purchase
item No 1 of suit schedule property, the plaintiff deliberately, not brought this
fact to the notice of this Hon’ble court, and the plaintiff has suppressed these
material facts only with an intention to lay a false claim to item No 1 of suit
schedule property.
5) With regard to Para 10 to 12 of plaint averments, the first defendant
categorically and emphatically denies each of the averments made therein and
put the plaintiff to strict proof of the same. It is alleged that for the loan amount
paid by plaintiff’s father to his father in law, his father in law with an
understanding agreed to give properties ie., item No 2 and 3 of suit schedule
properties and therefore these sites belonged to her father are denied as being
false and baseless. It is submitted that it is only an attempt made by plaintiff to
camaflouge true facts with distorted facts by conveniently using the events and
dates to her advantage. In a suit for partition filed in O S No 09/1978 on the file
of First Additional Civil Judge Tumkur, parties to the said suits entered into
compromise and item No 2 & 3 in the said suit schedule allotted to the share of
first defendant. The allotment of share made in the suit was not because of
any understanding that the loan was extended by father of plaintiff to his father
in law, it was simply because the loan was extended by first defendant to her
father, in the compromise petition instead of Usha Devi W/O Shiva Kumar , it
is typed as Usha Devi and Shivakumar word “AND” was wrongly mentioned
in the compromise petition now the same being used by plaintiff to her
advantage to claim that the loan extended by her father to his father in law the
properties were allotted to first defendant.
6) It is reiterated that the item No 2 & 3 in O S No 09/1978 allotted to first
defendant in the compromise not because of any contribution made by
plaintiff’s father, in fact no contribution was made by him it was because that
the first defendant had extended loan out of her savings to her father and as
such plaintiff father had no right, interest in item No 2 of suit schedule property
allotted to first defendant. It is submitted that by virtue of the said compromise
petition filed in O S No 09/1978 first defendant has become absolute owner of
item No 2 of suit schedule property allotted to her in the compromise petition.
7) With regard to item No 3 of the suit schedule property the father of the first
defendant at an undisputed point of time out of love and affection executed a
gift deed in favour of first defendant as far back as 1970 and this gift deed was
executed not because of any understanding as alleged by plaintiff and there is
absolutely not an iota of truth in the said averments. The defendant No 1 is the
absolute owner of the item No 3 of the suit schedule property. The first
defendant being the absolute owner of the item No 3 of suit schedule property
executed a gift deed in favour of her sister defendant No 4 and by virtue of the
said gift deed executed in favour of defendant No 4, the defendant No 4 has
become absolute owner of the item No 3 of the suit schedule property and as
such plaintiff and other defendants except defendant No 4 have no manner of
right interest in item No 3 of suit schedule property. It is relevant to mention
here that with respect to the item No 3 of suit schedule property, the father of
first Defendant had executed gift deed at an undisputed point of time much
before compromise was entered into among legal heirs of late Shivananda, yet
plaintiff deliberately has included the property in the schedule seeking
partition, though no one has any right over the property since 1970.
8) With regard to para 13 to 16 this defendant emphatically and categorically
denies each of the averments made therein and put the plaintiff to strict proof of
the same. It is submitted that first defendant is managing affairs and enjoying
all the suit schedule properties, as the absolute owner and not as manager after
the death of her husband, as aforesaid the first defendant being the absolute
owner of the item No of 3 of suit schedule property, executed a gift deed in
favour defendant No 4. Therefore question of alienating property in collusion
with other defendants by first defendant doesn’t arise. It is submitted that the
plaintiff has taken a mutually destructive and contradictory pleas in one breadth
plaintiff contends that first defendant was against Plaintiff’s marriage therefore
first defendant intends to deny her share in suit schedule properties.
Admittedly, plaintiff got married in the year 1995 and in the same year her
father and husband of first defendant died. If according to plaintiff that first
defendant was against her marriage and intended to deny the share in the suit
schedule properties, there was no occasion for plaintiff to file this suit after a
lapse 29 years, claiming the share in the suit schedule properties, the very fact
that plaintiff was aware that plaintiff has no manner of right, interest in suit
schedule properties, the plaintiff kept quite for all these years, now with
malafide intentions filed this suit claiming share in suit schedule properties,
wherein father of plaintiff and first defendant’s husband had no right and
interest, the alleged right what plaintiff had was only to the extent of his
consideration amount paid by the plaintiff father at the time of purchasing item
No 1 of suit schedule property and the same was waived by plaintiff when the
first defendant had paid a sum of Rs 5 Lakh by way of cash to the plaintiff
during 1996 to 1997 to clear some loans borrowed by her husband with an
understanding that the plaintiff would not claim any share in item No 1 of suit
schedule property further the first defendant didn’t claim any consideration
amount from the sale proceeds that plaintiff got from the property bearing No
449, situated at Nagadevanahalli village, Kengeri Hobli, Bangalore south Taluk
khata No 3504,totally Measuring 2200 square feet, the property which was
jointly held by plaintiff and first defendant was sold and the entire sale
consideration amount was received by the plaintiff though first defendant paid
entire loan amount of Rs. 15 Lakhs borrowed on 23.08.2011 for the purpose of
purchasing the aforesaid property from one Mahadevaiah. This gesture the first
defendant had shown to plaintiff having regard to fact that plaintiff agreed not
to claim any right, interest in the item No 1 of suit schedule property in the year
1996 when first defendant paid a sum of Rs 5 Lakh to plaintiff to clear the loan
borrowed by plaintiff’s husband.
9) The plaintiff out of the entire sale proceeds has purchased site and the first
defendant despite her best efforts is not able to secure the details of the
property, the very fact that plaintiff has not come forward to share any details
regarding the property, which was held jointly by the plaintiff and first
defendant and not sharing the details as to the purchasing of property out of the
sale proceeds by plaintiff that by itself is suffice that plaintiff has not
approached this Hon ble court with clean hands it is submitted that both
plaintiff and first defendant acquiesced to the arrangement, that Plaintiff would
not ask or denied for any share in Item No.1 the first defendant being her
mother agreed and consented to the same in the hope that plaintiff would not
raise any issue by laying her claim to properties and all these developments
happened when Plaintiff and the Defendants were in good terms therefore
there was no occasion to reduce the understanding into writing considering the
relationship. Unfortunately, now when first Defendant is aged about 76 years,
she has been dragged to the court to this frivolous litigation by making all false
and wild allegations against her. Therefore all the averments made at para 14 to
18 are emphatically and categorically denied as false and baseless and plaintiff
is put to strict proof of the same.
10)It is submitted that Plaintiff was also aware of the fact that the Item No. 1 of
Suit Schedule Property was a site at the time of purchase by her father and
husband of Defendant No.1, the first defendant contributed the funds to
construct a house on the Item No. 1 of the suit Schedule Property in the year
1988-89 consisting on ground and a room in the First Floor, however after
death of first Defendant’s husband the First Defendant constructed First Floor,
one commercial shop from the service benefits of Rs 22 lakh as nominee the
First Defendant received.
11)It is submitted that there is no cause of action for the suit and suit is liable to be
dismissed for want of cause of action and further the suit is liable to be
dismissed for want of not including the properties purchased by plaintiff out of
first defendant funds further the plaintiff having acquiesced arrangement that
the plaintiff had with first defendant not to claim any share in item No 1 of suit
schedule property and having accepted the right of first defendant over Item No
2 and 3 of suit schedule property has filed this suit for partition after lapse of 29
years since the date of cause of action as admitted by plaintiff herself in the
plaint and as such the suit is also liable to be dismissed as barred by limitation.
It is submitted that the first defendant has perfected the title in so far as
plaintiff alleged share is concerned with regard to item No 1 of suit schedule
property, as first defendant is enjoying the suit schedule property item No 1
absolutely without any hindrance interference since the death of her husband
and father of plaintiff. It is further submitted that the suit is not properly valued.
12)All other averments which are not specifically traversed or admitted herein are
denied as being false and baseless and the plaintiff is put to strict proof of the
same.
13)There is no cause of action much less the one alleged claimed by the
Plaintiff. Consequently the above suit is liable to be dismissed.
WHEREFORE the Defendants most respectfully prays that this Hon'ble
Court may be pleased to dismiss the suit with exemplary costs in the facts
and circumstance of the case in the interest of justice and equity.
ADVOCATE FOR FIRST DEFENDANT FIRST DEFENDANT
BANGALORE
DATED:
VERIFICATION
I, USHA SHIVAKUMAR, the First Defendant in the above matter do
hereby declare that what is stated above is true to the best of my
knowledge, information and belief.
BANGALORE
DATED: FIRST DEFENDANT
IN THE COURT OF THE CITY CIVIL JUDGE AT BENGALURU
(CCH- )
O S NO. 7922/2023
BETWEEN:
SMT. DEEPA SHIVAKUMAR PLAINTIFF
AND:
SMT. USHA SHIVAKUMAR AND OTHERS DEFENDANTS
VERIFYING AFFIDAVIT
I, USHA SHIVAKUMAR alias H S USHADEVI, wife of late Dr. M N
Shivakumar ageda bout 75 years, residing at No. 39/39 (65) Parusha, 1 st E Cross,
5th Main, REMCO Layout, Hampinagar, Vijyanagar, 2 nd Stage, Bengaluru - 560
040, Today Present in Tumkur, do hereby solemnly affirm and state on oath as
follows;
1. I submit that I am the First Defendant in the above matter and I am well
conversant with the facts of the case, as such I am competent to swear to
this affidavit. I am swearing to this affidavit on behalf of other
Defendants.
2. I submit that the averments made in paragraph 1 to 13 of the Written
Statement are true to the best of my knowledge, information and belief.
IDENTIFIED BY ME DEPONENT
ADVOCATE SWORN TO BEFORE ME
TUMKUR
DATED: