Karnataka High Court
S Nagaraj vs Chinni Sudeshana W/O S.Nagaraj on 1 March, 2014
Bench: K.L.Manjunath, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF MARCH 2014
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
MISCELLANEOUS FIRST APPEAL NO.1986 OF 2010(FC)
C/W
MISCELLANEOUS FIRST APPEAL NO.1987 OF 2010(FC)
MFA.NO.1986/2010:
BETWEEN:
S.Nagaraj
S/o late Adinarayana Setty
Aged about 52 years
No.171, 2nd Floor,
1st Cross, 4th Main,
Rajajinagar Industrial Town,
Bangalore - 560 010. ...APPELLANT
(By Sri Venkatesh C.Sharma , Advocate)
AND:
Smt.Chinni Sudeshana
W/o S.Nagaraj
Aged about 50 years
2
No.140, EWS, 1st Stage,
KHB Colony, Basaveshwaranagar
Bangalore - 560 079
Present Address:
Flat No.204,
Mythri Enclave
Saraswathipuram
Mysore - 570 009. ...RESPONDENT
(By Sri P.D.Surana, Advocate)
*****
This MFA is filed under Section 19(1) of Family
Courts Act, against the Judgment and Decree dated
07.10.2009 passed in O.S.No.9/1998 on the file of the II
Additional Principal Judge, Family Court, Bangalore,
dismissing the suit to declare the plaintiff therein as the
absolute owner of the suit schedule property and for the
permanent injunction.
MFA.NO.1987/2010:
BETWEEN:
S.Nagaraj
S/o late Adinarayana Setty
Aged about 52 years
No.171, 2nd Floor,
1st Cross, 4th Main,
Rajajinagar Industrial Town,
Bangalore - 560 010. ...APPELLANT
(By Sri Venkatesh C.Sharma , Advocate)
AND:
Smt.Chinni Sudeshana
W/o S.Nagaraj
3
Aged about 50 years
No.140, EWS, 1st Stage,
KHB Colony, Basaveshwaranagar
Bangalore - 560 079
Present Address:
Flat No.204,
Mythri Enclave
Saraswathipuram
Mysore - 570 009. ...RESPONDENT
(By Sri P.D.Surana, Advocate)
******
This MFA is filed under Section 19(1) of Family
Courts Act, against the Judgment and Decree dated
07.10.2009 passed in O.S.No.20/1998 on the file of the II
Additional Principal Judge, Family Court, Bangalore,
dismissing the filed under Section 26 Order 7 Rule 1 of
CPC, for declaration and permanent injunction.
These MFAs coming on for admission this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
These appeals are preferred by the unsuccessful plaintiff challenging the legality and the correctness of the Judgment & decree passed in O.S.No.9/1998 and 20/1998 on the file of III Additional Principal Family Court Judge, Bangalore, dated 7th October 2009.
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2. Heard the learned counsel appearing for the parties. O.S.No.9/1998 is filed by the appellant against the defendant to declare the plaintiff as the absolute owner of the suit schedule property and to restrain the 1st defendant from alienating or removing or mortgaging or exchanging the suit schedule property.
3. O.S.No.20/1998 is filed by the plaintiff against the defendant to declare the plaintiff as the absolute owner of the suit property and for a permanent injunction to restrain the defendant from alienating, or mortgaging or exchanging the suit property In O.S.No.15/1998 the Secretary of Max Muller English High School who was the tenant of the building has been arrayed as the 2nd defendant.
4. In addition to these two suits one more suit was filed by the defendant-wife in O.S.No.15/98 to restrain the plaintiff herein from interfering with the lawful 5 possession and enjoyment of the suit property. Considering the relationship between the appellant and the respondent who are the husband and wife all the three suits were clubbed together and common evidence was recorded.
5. According to the plaint averments the plaintiff purchased the suit property in the name of his wife Smt.Chinnu Sudeshna and that she is only a name lender and it is a benami transaction. The entire sale consideration has been paid by him. Later on it was also declared by the respondent-defendant that the suit property was purchased by the plaintiff for the benefit of the family and that she had given an undertaking to execute a document in favour of the plaintiff confirming his ownership. Contending that the defendant has no right, title or interest is trying to alienate the properties to him two suits came to be filed by him.
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6. The defendant contested the suit. According to her she is the absolute owner of the suit properties. She was working as a stenographer in Vysya Bank, Bangalore and by availing loan from the bank she purchased the suit property from one Venkatesh for a valuable sale consideration of Rs.1,10,000/-. It is contended she had borrowed the loan from her employer and also from one Venaktarathnam and Smt.Nagarathna in a sum of Rs.30,000/- and Rs.10,000/- respectively and after sanction of the loan from the Vysya Bank she repaid the loan borrowed from Smt.Nagarathana and Venaktarathnam and that she never executed any documents as contended by the plaintiff.
In the circumstances she requested the Court to dismiss the suit.
7. Based on the above pleadings the following issues were framed by the Court below:-
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O.S.NO.9/98:
"1. Whether the plaintiff proves that he is the real owner and defendant No.1 is the benamidar of the suit property?
2. Whether the plaintiff proves that there is cause of action for the suit?
3. Whether defendant No.1 proves that the suit property is not property valued and thus court fee paid is not proper?
4. Whether the plaintiff is entitled to the relief prayed for?
5. What relief or decree?"
O.S.No.15/98:
"1. Whether the plaintiff proves defendant's interference to her possession of the said property?
2. Whether the plaintiff is entitled to the relief?
3. What order? Decree?"
O.S.No.20/98:
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"1. Whether the plaintiff proves that he purchased the suit property in the name of the defendant?
2. Whether the plaintiff proves the cause of action for the suit?
3. Whether court fee paid is insufficient?
4. Whether the plaintiff is entitled to the relief prayed for?
5. What order or decree?"
To prove their respective contentions the plaintiff got himself examined as P.W.1. He relied upon Exs.P-1 to P-
80. On behalf the defendant the respondent got herself examined as D.W.1. She relied upon Ex.D-1 to D-51. The trial Court after considering the evidence let-in by the parties held Issue No.1 in O.S.No.9/1998 and O.S.20/98 in negative, Issue No.1 in O.S.No.15/1998 in affirmative Issue No.2 in O.S.9/1998 and 20/1998 in negative and Issue No.2 in O.S.15/1998 in affirmative, Issue No.3 in O.S.No.9/1998 & 20/1998 in negative. Issue No.4 in 9 O.S.No.9/1998 & 20/1998 negative and ultimately the suit filed by the plaintiff came to be dismissed.
8. Challenging the legality and the correctness of the same, the present appeals are filed. We have heard the learned counsel appearing for the appellant Mr.Venkataesh C. Sharma and Mr.P.D.Surana, the learned counsel appearing for the respondent.
9. At the time of arguments the learned counsel for the appellant contends that the trial Court did not consider Ex.P-16 dated 2-8-1994 and that if the trial court had considered Ex.P-16 the trial court would have come to the conclusion that the plaintiff has purchased the suit property in the name of his wife for the benefit of the family and that in terms of Ex.P-16 the plaintiff has to be declared as the absolute owner of the suit property. He further submits that even though the defendant has failed to prove that she had money to purchase the suit 10 property; the trial Court without appreciating her evidence has held that the plaintiff has failed to prove the ownership of the suit property. According to him, the entire evidence let-in by the parties has not been properly considered and on account of wrong appreciation of evidence the trial Court has dismissed the suit. He further contends that the trial court without framing an issue in regard to the maintainability of the suit that a mere suit for declaration without seeking possession as maintainable is incorrect. According to him, the trial Court was required to frame an additional issue in regard to the maintainability of the suit. He further submits that the plaintiff all along was in possession of the suit property and when he was in possession of the property the question of seeking the relief of possession does not arise at all.
10. He further contends that when the suit was filed he was in Joint possession of the suit property along with the defendant and during the pendency of the suit all 11 of a sudden one day when the plaintiff was away from the house the entire building was demolished by the defendant and therefore there was no need or necessity for him to seek the relief of possession. In the circumstances he requests the Court to allow the appeal and set aside the Judgment & decree of the trial Court.
11. Per contra, Mr.P.D.Surana, the learned counsel appearing for the respondent submits that the contention of the appellant that the defendant-respondent is only a name lender and that the plaintiff is the absolute owner of the suit property is incorrect. According to him, the suit property was purchased by the defendant by borrowing loan from Smt.Nagarathna and Venkatarathnam and she also borrowed the loan from her employer and that out of the loan borrowed by her from her employer a pay order was issued to Smt.Nagarathna and Sri Venkatarathnam to discharge the loan borrowed by her. He further submits that the balance payment payable to the vendor Venkatesh 12 was paid by the employer of the respondent by transferring the amount to the Karnataka Housing Board towards the loan amount of the vendor Venkatesh.
12. He further submits that the plaintiff contends that the suit transaction is a benami transaction. The burden is on the plaintiff and necessarily the pleadings were also required to be made and in the absence of proper pleadings and evidence no Court can hold the transaction as benami transaction. He further submits that the original of Ex.P-16 has not been produced before the Court and signature of the defendant on Ex.P-16 is also not proved; the order to appreciate the contention of the plaintiff. According to him in the cross-examination of P.W.1., the P.W.1 has stated that original of Ex.P-16 has been stolen by the respondent-wife however either in his pleading or his evidence has not stated in regard to the missing of Ex.P-16. He further contends that even if the contention of the appellant that original of Ex.P-16 is 13 stolen by the respondent it was for the appellant to call upon the respondent-defendant to produce the original of Ex.P-16 and no such attempt is made by the plaintiff. He further submits that if the original of Ex.P-16 was produced by the appellant the interpolation made in the said document will be made known to the Court, and therefore purposely the appellant has withheld the same.
13. He further submits that the contention of the appellant that he was in possession of the property along with the defendant; after the building was demolished it was for the plaintiff to make necessary amendment to the pleadings. Merely because the wife has allowed her husband to stay with her in her house it cannot be considered that the plaintiff was in possession of the property. Such possession would be a permissive possession and it cannot be considered as the absolute possession. Since the plaintiff has not sought the relief of possession, the suits have been rightly dismissed by the 14 Court below. In the circumstances he requests the Court to dismiss the appeal.
14. Having heard the learned counsel appearing for the parties we have to consider the following two points in these appeals:-
1) Whether the plaintiff was proved that he is absolute owner of the suit property and that he has purchased the suit property in the name of his wife for his benefit and
2) Whether the suit filed by him for declaration of title without seeking the relief of possession in respect of a vacant site is maintainable and whether the Judgment & decree of the trial court requires to be interfered with ?
15. The facts in these appeals and the relationship between the plaintiff and the defendant are not in dispute. The plaintiff is the husband. The defendant is the wife. 15 They have two daughters. The plaintiff is a practicing Advocate. The defendant is working in Vysya bank. It is the case of the plaintiff that the defendant had no money to acquire the property. The property was acquired by him in the name of the defendant for his benefit and that the defendant is in possession. In such circumstances, the burden is heavy on the plaintiff to prove the transaction between the defendant and the vendor Venkatesh as a benami transaction. The best person to give evidence to prove the benami transaction is the vendor of the defendant Venaktesh and for the reasons best known to the plaintiff Venkatesh has not been examined to show the nature of real transaction between the defendant and Venkatesh and that admittedly the documents produced by the defendant shows that she had borrowed loan from Vysya Bank where she is working and she borrowed a sum of Rs.1,10,000./- out of which it is her case that the Bank has directly sent money to the Karnataka Housing Board in order to clear the loan which was outstanding in the name 16 of her vendor Venkatesh and it is towards the sale consideration and it is also her case that she had borrowed the loan of Rs.30,000/- from Venkatarathnam and Rs.10,000/- from Nagarathna to show that she had borrowed the loan of Rs.30,000/- and Rs.10,000/- respectively, from Venaktarathnam and Smt.Nagarathna she has produced the attested promissory notes executed by her in favour of those two persons. It is also her case that out of the money borrowed by her from her employer Vysya Bank pay orders were issued by her employer to Venaktarathnam and Nagarathna to clear the loans. The documentary evidence of the defendant and the oral testimony of the defendant is not seriously challenged by the plaintiff. When the defendant is able to prove her source to acquire the property, the contention of the plaintiff that he has paid the sale consideration to acquire the property; the burden was on the plaintiff to prove how he paid the sale consideration to the vendor of the defendant Venkatesh. Unfortunately the plaintiff did not 17 examine the vendor of the defendant or the attestors to the sale deeds to show the nature of transaction between Venkatesh and the defendant and that the sale consideration was paid by the plaintiff to the vendor Venkatesh. When the initial burden has not been discharged by the plaintiff it is not open for the plaintiff to contend that the defendant had no money to acquire the property. On the contrary the documents produced by the defendant clearly show that she had the capacity to acquire the property and the sale deed obtained by her in her individual capacity.
16. The trump card of the plaintiff to the suit is Ex.P-16. As rightly contended by Mr. P.D.Surana the original of Ex.P-16 is not produced before the Court and the explanation offered in the cross-examination of P.W.1 is that the original is stolen by defendant-wife. If the defendant had stolen the original of Ex.P-16 it was required to be pleaded by the plaintiff in his plaint. For the 18 reasons best known to the plaintiff it is not pleaded by him and when Ex.P-16 was confronted to DW-1, she has denied here signatures on Ex.P-16 therefore it is difficult for the Court to accept that the plaintiff has proved Ex.P-
16. Ex.P-16 is an agreement by way of declaration said to have been made on 2nd August, 1994 to show the payments said to have been made in October, 1985. The reasons for executing such an agreement is not explained by the plaintiff. The defendant has purchased the property for a sale consideration of Rs.1,10,000/- from Venkatesh under a registered sale deed dated 15-6-1987. In Ex.P-16 the date of sale deed is also not mentioned. What is mentioned is the alleged payment made prior to the agreement of sale. We would have to appreciate the contention of the plaintiff as per Ex.P-16 if the said document had come into existence much prior to acquire the property of the defendant or at least prior to the obtaining of the sale deed by the defendant in respect of the suit property. After 7 years from the date of the sale 19 deed Ex.P-16 is said to have come into existence. As a matter of fact, based on Ex.P-16, an attempt was made by the plaintiff to recover rent from the tenant by filing a suit in S.C.No.1905/1998 for a sum of Rs.60,000/- against the Secretary of Max Muller School who is defendant No.2 in the first suit. The said suit has been dismissed and the said decree was challenged by the plaintiff by filing a Civil Revision Petition before this Court which has been dismissed. The said suit is based on the document relied upon by the plaintiff in the present suit.
17. It has also come in the evidence that as husband and wife they were residing together in the plaint schedule property and thereafter the defendant has demolished the building and building is raised to the ground. This fact is disputed by the plaintiff. Atleast when the plaintiff has been dispossessed during the pendency of the suit by demolishing the building it was for the plaintiff to make necessary amendment to the plaint, seeking relief of possession. For the reasons best known to the 20 plaintiff though the plaintiff is a practicing Advocate did not make any application for amendment of the plaint. As rightly pointed out by the learned counsel for the respondent when the suit is filed for declaration of title and when the plaintiff is not in possession of the property without seeking the relief of possession a mere suit for declaration is not maintainable. Even though no issue is framed to that effect it is a question of law which can be raised at any time and though the trial court has answered the same the appellant's counsel cannot contend that the trial court was not right in dismissing the suit. On the contrary, we are of the view that the trial Court has rightly dismissed the suit without there being a consequential relief mere suit for declaration is not maintainable.
From the above discussion and on re-appreciation of the entire oral and documentary evidence we are of the opinion that the trial court is justified in holding that the plaintiff has failed to prove that he is the owner of the suit 21 property and that defendant No.1 is only a benamidar and that he has to be declared as the absolute owner. The points formulated by us are held against the plaintiff- appellant. In the result, both the appeals are dismissed.
Sd/-
JUDGE Sd/-
JUDGE Rsk/-