Bangalore District Court
Ramesh S vs Poongodi S on 19 September, 2024
KABC010134042023
IN THE COURT OF THE XLI ADDL.CITY CIVIL AND
SESSIONS JUDGE : AT BANGALORE [CCH-42]
:PRESENT:
SMT. SUMANGALA CHAKALABBI, B.A. LL.B.
(Hons.), LL.M.
XLI Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 19th day of September 2024
O.S.No.3259/2023
PLAINTIFF : 1. Sri Ramesh S.
S/o Late Subramani,
Aged about 43 yeares,
R/at N o.46/9, Om Shakthi Nilaya,
3rd Main, 16th Cross,
Rajivgandhi Nagar,
Bommanahalli,
Bengaluru - 560 068.
(By Sri. Amar Babu M., Advocate)
V/s.
DEFENDANTS : 1. Smt. Poongodi S.
D/o Late Subramani,
W/o Murugan M.
Aged about 45 years,
R/at No.160, 4th Cross,
CT Bed, BSK 2nd Stage,
O.S. No.3259/2023
2
Tyagarjaanagar,
Bengaluru - 560 070.
2. Sri Mahesh S.
S/o Late Subramani,
Aged about 38 years,
R/at No.46/9, Om Shakthi Nilaya,
3rd Main, 16th Cross,
Rajivgandhi Nagar,
Bommanahalli
Bengaluru - 560 068.
(D1 - By Sri S.K., Advocate
D2 - By Sri B.G.T., Advocate)
Date of Institution of the 26.05.2023
Suit:
Nature of the suit
(Suit on Pronote, suit for Suit for Declaration and
declaration & possession, Partition
suit for injunction)
Date of commencement of 29.01.2024
recording of evidence:
Date on which the 10.09.2024
Judgment was pronounced:
Total Duration: Year/s Month/s Day/s
01 03 04
O.S. No.3259/2023
3
JUDGMENT
The Plaintiff has filed this suit against the defendants for the following reliefs:
(1) To declare that the plaintiff is entitled for 1/3rd share over the suit schedule property and direct the defendants to effect partition by metes and bounds and put the plaintiff in possession of his legitimate share ;
(2) To declare that the gift deed dated 11.06.2020 executed by mother of the plaintiff in respect of the defendant No.2 is not binding on the plaintiff ;
(3) To grant permanent injunction by restraining the defendants or anybody acting on their behalf from alienating or in any way encumbering the schedule property in favour of any third person in any manner;
O.S. No.3259/2023 4 (4) To direct the defendants for mesne profits in respect of his share ;
And for such other reliefs, the court may deem fit in the facts and circumstances of the case.
2. The case of the plaintiff in brief is that:
2.1 The plaintiff and the defendants are the brothers and sister and they are governed by Hindu Mitakshara Law.
2.2 It is further submitted that one Subramani and Amudha are the wife and husband and Subramani died on 09.11.2013 and Amudha died on 09.05.2021, leaving behind the plaintiff and the defendants to succeed to their estate.
2.3 The plaintiff further submits that deceased Subramani and Amudha had jointly and individually purchased few properties in Bengaluru. During her lifetime, Smt. Amudha had O.S. No.3259/2023 5 gifted a property to the plaintiff and defendant No.2 and had paid amount and gold ornaments worth of Rs.25 Lakhs to the 1st defendant.
2.4 The plaintiff further submits that during the lifetime of Subramani and Amudha, they had jointly purchased property under sale deed dated 14.07.2010 bearing site No.2, old katha No.46/10, new katha No.615, situated at Bommanahalli Village, Begur Hobli, Bengaluru measuring East to West 30 feet and North to South 36 feet in total 1080 sq.ft., which the schedule property herein.
2.5 It is further submitted that during the lifetime of Subramani and Amudha they had not gifted the suit schedule property nor they have executed any sort of documents as partition deed etc., in favour of plaintiff and defendants and they have enjoyed their property till their last breath.
O.S. No.3259/2023 6 2.6 It is further submitted that Smt. Amudha, mother of the plaintiff and defendants was not in a sound mind to execute any document and taking advantage of the same, the 2nd defendant fraudulently obtained gift deed on 11.06.2020 in respect of western portion of the suit schedule property.
2.7 The father of the plaintiff and defendants during his lifetime had not executed any document in favour of their mother by releasing his right and therefore, the under the alleged gift deed the defendant No.2 does not get any right to enjoy the western portion of the suit schedule property as the same belongs to their father Subramani.
2.8 The plaintiff came to know about the said gift deed recently when he demanded for partition with the 2nd defendant.
O.S. No.3259/2023 7 2.9 He further submits that the suit schedule property consists of residential building and also having 10 separate houses and after the death of Subramani and Amudha, the schedule property was given for rents to various tenants till June 2022 and plaintiff and 2nd defendant were jointly taking the rents.
2.10 It is further submitted that subsequently, due to personal problems of the plaintiff and also on account of his official duty he was not in Bengaluru for few months and taking advantage of the same, the 2nd defendant changed all the tenants and leased out the property to new tenants and he is collecting all the rents and according to the plaintiff, the 2nd defendant is collecting more than Rs.80,000/- rent from the suit schedule property per month.
O.S. No.3259/2023 8 2.11 That when the plaintiff requested the 2nd defendant to pay his share of rent, the 2 nd defendant has been postponing the same and recently he found that the defendant had obtained gift deed from his mother in respect of the portion of the suit schedule property and when plaintiff enquired the same and requested for cancellation of gift deed and to effect partition, the 2 nd defendant refused to effect partition.
2.12 It is further contended that the alleged gift deed executed in favour of the 2 nd defendant is not binding on the share of the plaintiff as the mother of the plaintiff did not have any independent right over the suit schedule property and the alleged gift deed was obtained fraudulently, as such the said gift deed is not binding on the plaintiff. Therefore, the present suit is filed by the plaintiff.
O.S. No.3259/2023 9
3. In pursuance of suit summons, the defendant no.1 appeared through her counsel and filed her written-statement confirming the plaint averments and contended that the mother of the plaintiff has not executed any gift deed during her lifetime as the mother of the plaintiff and defendant was illiterate, taking advantage of the same, the 2 nd defendant without her knowledge has obtained the document in his favour fraudulently. Hence, whatever the documents have been obtained by 2 nd defendant are created and fabricated. 3.1 It is further contended that the mother of the plaintiff had constructed building in the suit schedule property with an intention to build two separate portions to plaintiff and 2nd defendant and now the 2nd defendant with an intention to knock off the entire property has got created the alleged gift deed. Hence, requested the court to decree the O.S. No.3259/2023 10 suit in favour of the plaintiff and to allot 1/3rd share in the suit schedule property.
3.2 The 1st defendant has also stated that she is agreeable to relinquish her share in favour of the plaintiff.
3.3 The 2nd defendant has filed his separate written-statement denying the plaint averments and further contending that his mother has gifted her share of the property in his favour out of natural love and affection and as such he has become the owner to the western side portion of his share in the suit schedule property and now eastern side portion of the suit schedule property is the only available property for partition which is required to be shared between the plaintiff and the defendant No.2 only as the 1st defendant has received 1/3rd share in the eastern portion of the schedule property in the form of cash of Rs.25 O.S. No.3259/2023 11 Lakhs from the 2nd defendant and his mother and as such the first defendant is not entitled to any share in the eastern side portion of the schedule property. The 2nd defendant has denied that after the demise of parents of the plaintiff, the plaintiff and defendants are entitled to succeed to their estate.
3.4 The 2nd defendant has stated that the mother of the 2nd defendant had given 7 sovereign of gold jewels to the 1st defendant and also in addition to it 125 CC TVS NTORQ - two wheeler scooter worth Rs.1 Lakh to the son of 1st defendant by name Rahul.
3.5 It is further submitted that 16 sovereign of jewels were received by 1st defendant after the death of their mother. Further, the mother of defendant No.2 has also paid an amount of Rs.10 Lakhs by way of cash to the defendant and after O.S. No.3259/2023 12 her death, the 2nd defendant has paid Rs.15 Lakhs to the 1st defendant by way of RTGS and another site bearing No.3, situated at Bommanahalli Village was purchased in the name of the 1 st defendant by the mother of the 2nd defendant.
3.6 It is submitted that though the 1 st defendant is not at all interested to claim any share in the suit schedule property, she has malafidely let her claim with respect to the suit schedule property in order to make a wrongful gain by colluding with the plaintiff and her husband Sri Murugan. 3.7 The contents of para-6 of the plaint that the parents of the plaintiff had jointly purchased the suit schedule property is admitted as true in para No.7 of the written-statement of defendant NO.2. The contention of the plaintiff that their parents had not executed any documents such as partition deed etc., in favour of the plaintiff and O.S. No.3259/2023 13 defendants and they have continued to enjoy the property till their last breath is denied. 3.8 It is further submitted by the 2 nd defendant that the 2nd defendant was looking after the welfare of his mother and out of love and affection his mother had gifted half share in the suit schedule property on 11.06.2020 and 2 nd defendant has constructed RCC roof ground floor plus three floors building in the entire suit schedule property by spending his hard-earned money to the tune of Rs.75 Lakhs as per the request of his mother.
3.9 The claim of the plaintiff that prior to the death of the mother of the plaintiff, she was suffering from several diseases and she was bed- ridden for several years and she was not in a position to move from one place to another and further she was not in sound state of mind to O.S. No.3259/2023 14 execute any document and 2nd defendant has fraudulently obtained the gift deed are denied specifically and sought to dismiss the suit with exemplary costs.
4. On the above pleadings of the parties, the following issues have been framed:
1. Whether the Plaintiff proves that the Gift deed dated 11.06.2020 is the result of fraud.
2. Whether the Plaintiff proves that the Gift deed dated 11.06.2020 executed by the mother of plaintiff in favour of defendant No. 2 is not binding on the share of the plaintiff.
3. Whether the plaintiff is entitled for the relief of partition in the suit schedule property.
4. Whether the defendant no.2 proves that defendant No. 1 is not entitled for any share as she had received movable and immovable properties in lieu of her share.
5. Whether the plaintiff is entitled for the reliefs sought for.
O.S. No.3259/2023 15
6. What order or decree.
Additional issues framed on 11.9.2024
1. Whether the plaintiff proves that he is entitled for the relief of permanent injunction as sought in prayer no.3.
2. Whether the plaintiff proves that he is entitled for the relief of mesne profit in respect of the share of the plaintiff.
5. In order to prove the case of the plaintiff, the plaintiff examined himself as Pw.1 and got marked the documents at Ex.P.1 to P.9 and closed his evidence.
5.1 On the other hand, in order to prove the defence, the defendant No.2 is examined as DW.1 and got marked the documents at Ex.D.1 to D.23 and closed their side.
6. Heard both sides. Perused the records.
7. My findings to the above issues are as under:
O.S. No.3259/2023 16 Issue No.1 - In the Negative Issue No.2 - In the Affirmative Issue No.3 - In the Affirmative Issue No.4 - In the Negative Issue No.5 - Partly in the Affirmative Additional issue no.1 and 2 - In the Negative Issue No.6 - As per the final order for the following:
REASONS
8. ISSUE NO.1 :- It is the case of the plaintiff that during the lifetime of Subramani and Amudha, they had jointly purchased property under sale deed dated 14.07.2010 bearing site No.2, old katha No.46/10, new katha No.615, situated at Bommanahalli Village, Begur Hobli, Bengaluru measuring East to West 30 feet and North to South 36 feet in total 1080 sq.ft., the schedule property herein. It is further submitted that during the lifetime of Subramani and Amudha they had not gifted the suit O.S. No.3259/2023 17 schedule property nor they have executed any sort of documents as partition deed etc., in favour of plaintiff and defendants and they have enjoyed their property till their last breath. It is further submitted that Smt. Amudha, mother of the plaintiff and defendants was not in a sound mind to execute any document and taking advantage of the same, the 2nd defendant fraudulently obtained gift deed on 11.06.2020 in respect of western portion of the suit schedule property. In para no.8 of the plaint it is contended that the mother of the plaintiff prior to her death was suffering from several diseases and was bed-ridden and therefore, she was not in a position to move from one place to another and she was not in a sound mind to execute any document and taking advantage of the same, the 2nd defendant has fraudulently obtained the gift deed in respect of the western portion of the suit schedule property and therefore, the gift deed executed by the mother of the O.S. No.3259/2023 18 plaintiff in favour of the 2nd defendant is not binding on the plaintiff's share.
9. These contentions of the plaintiff are specifically denied by the 2nd defendant in his written-statement.
10. Before appreciating the factual aspects of the issue it is necessary to emphasis on the provisions of CPC which deal with pleadings relating to fraud. Order 6 Rule 4 CPC provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading but the said averments are conspicuously missing in the plaint. A minute scrutiny of the plaint discloses that the allegations are general and vague in nature. Except for the use of the words "fraud" the plaintiff has not pleaded the specific particulars of verbal misrepresentation, or O.S. No.3259/2023 19 occasion thereto which lead to fraud on the defendant no.2 . Order 6, Rule 4 of the Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision. It is not the mere use of the general words such as 'fraud' or 'collusion' that, can serve as a foundation for the plea. Such expressions are quite ineffective to form a legal basis when denuded of particular statement of facts which alone can furnish the requisite basis for the action. In this context it is appropriate to refer to the judgment of the Apex Court in the case of C.S.Ramaswamy v. V.K.Senthil in Civil Appeal No. 500/2022 dtd. 30.9.2022, has held that mere using the word fraud as opposed to making specific averments was not sufficient to fetch a relief.
Section 17 of the Indian Contract Act defines Fraud . Section 17: Fraud : means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent', with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be O.S. No.3259/2023 20 true;(2)the active concealment of a fact by one having knowledge or belief of the fact;(3)a promise made without any intention of performing it;(4)any other act fitted to deceive;(5)any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speaks, or unless his silence, is, in itself, equivalent to speech.
11. In the light of the above provision it was incumbent upon the plaintiff to plead the circumstances occasioning fraud with precision.
12. The plaintiff in support of the averments made in the plaint with regard to the capacity of the mother of the plaintiff to execute the gift deed has not produced single piece of document to substantiate his contention except the Gift deed at Ex.P4. During the course of oral evidence he has deposed that his mother was suffering from high B.P. and memory loss due to diabetes. Further stated that she was bed-ridden but she was taking treatment at his house O.S. No.3259/2023 21 and she was not hospitalized. PW.1 has admitted that no doctor was attending her at his home. Further stated that she was taken to St. John's hospital at Hennur and he was getting her medicines.
13. He has further pleaded ignorance regarding the medicines which were prescribed to her during the Covid period. PW.1 has admitted that she was not hospitalized during Covid period and she was in home isolation. PW.1 has further admitted that he is not having any documents to show that his mother was in home isolation and that he has no difficulty to produce the medical documents of his mother, but has not produced the same later on.
14. PW.1 has further admitted that during the marriage ceremony of his cousin Nithin Kumar on 21.02.2021, his mother was hale and healthy and she expired after 3 months of the marriage ceremony of Nithin Kumar. The plaintiff in his entire pleading has not narrated as to how the defendant no.2 took undue advantage of the O.S. No.3259/2023 22 medical condition of the mother of the plaintiff and obtained the gift deed. PW1 has admitted that his mother was residing with him till June 2020 and the impugned gift deed at Ex.P4 was executed in favour defendant no.2 when his mother was residing with him. Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Even otherwise the plaintiff has not produced any iota of evidence to substantiate the allegation of fraud. There is no material to indicate that the plaintiff had initiated criminal proceedings on account of the fraud committed by the defendant no.2 In the absence of material pleadings on fraud it is neigh impossible to conclude that the gift deed in favour of the vendor of the defendant no.2 is a result of fraud. The Gift deed dated 11.6.2020 marked at Ex.P4 being a registered document and it carries with the presumption of valid execution and if any party is O.S. No.3259/2023 23 aggrieved by the same then the onus is on him to prove the same. In K.Gopala Reddy (deceased) by LRs Vs. Suryanarayana Rao and others, 2004 (1) KCCR 662 has held that whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party who approaches the Court. Weakness of the Defendant cannot be considered as a trump card for the Plaintiff. Therefore the plaintiff has failed to prove that gift deed dated 11.6.2020 is obtained by fraud. Hence, Issue No.1 is answered in the Negative.
15. Issue Nos.2, 3 and 4:- It is the case of the plaintiff that the entire suit schedule property was purchased by the parents of the plaintiff jointly and during the lifetime of the plaintiff deceased Subramani had not executed any document in favour of Smt. Amudha by releasing his rights over the portion of the schedule property. Accordingly, the entire suit schedule property O.S. No.3259/2023 24 was held jointly. However, in the alleged gift deed dated 11.06.2020, Amudha has gifted western half portion of the suit schedule property in favour of the 2 nd defendant and according to the said gift deed she had retained the eastern portion of the suit schedule property shown in the schedule indicating that the gift deed was in respect of the property belonging to her late husband Subramani. In this regard it is contended that the mother of the plaintiff did not have any exclusive right to deal with the property independently as plaintiff and 1st defendant were having equal rights over the suit schedule property along with second defendant.
16. The plaintiff has further averred that the suit schedule property consists of a residential buildings having 10 separate houses and till June-2022, the plaintiff and 2 nd defendant were collecting rents jointly and subsequently, when the plaintiff had to travel away from Bengaluru, taking advantage of the absence of the plaintiff, the 2 nd defendant had changed the tenants and started collecting O.S. No.3259/2023 25 the rents directly from the tenants. Later on when the plaintiff questioned the conduct of the 2nd defendant and demanded his share of rents, the 2nd defendant postponed the request of the plaintiff and later on it was discovered that 2nd defendant had obtained the alleged gift deed in respect of the western portion of the suit schedule property.
17. On the other hand, the 2nd defendant has contended that the mother of the 2nd defendant was very much well within her rights in executing the gift deed in favour of the 2nd defendant as she was the joint owner of the suit schedule property and therefore, the plaintiff and the 2nd defendant are entitled in the eastern portion of the suit schedule property to the extent of ½ share each as the 1st defendant has received Rs.25 Lakhs from 2nd defendant and her deceased mother.
18. At this stage it is appropriate to refer Section 44 of the T.P.Act, which reads as under:
44. Transfer by one co-owner.--
O.S. No.3259/2023 26 "Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling- house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
19. On plaint reading of the above Section, it discloses that a transfer of a share by a co-owner is not absolutely prohibited under the above provision but the transferee acquires right only to the extent of share or interest held by the transferor and the right of the transferee to joint possession or other common or part O.S. No.3259/2023 27 enjoyment of the property is only to the extent of the share of the transferor.
20. The property involved in the above suit is admittedly the property jointly acquired property of the parents of the plaintiff and defendants. The recitals of the online copy of Ex.P2 reveal that the parents of the plaintiff and defendants namely Amudha and Subramani had purchased the suit property from A Devraj through a registered sale deed on 14.7.2010 for a sale consideration of 10,80,000/- paid by cash. The recitals of the sale deed at Ex .P2 are conspicuously silent on the extent of the contribution of purchase price paid by the two purchasers of the property. Therefore the suit property is the joint property of the parents of the plaintiff in which both parents were entitled for half share each.
21. Though the defendant no.2 has admitted the averment in the plaint that the parties are governed by Hindu Mitakshara Law but there is no averment that the O.S. No.3259/2023 28 coparcenary or the ancestral property of the plaintiff. In para no. 7 of the written statement of defendant no.2 , the second defendant has categorically admitted that suit property bearing site no.2 Khata no. 46/10 was jointly purchased by his parents. Therefore there is an absolute consensus over the nature of acquisition of the property. In view of the above provision and also the admission by the defendants that the parents of the plaintiff were the joint owners of the suit schedule property, the mother of the plaintiff was entitled to execute the git deed only to the extent of her half share. In the instant case the the mother of the plaintiff has executed gift deed at Ex.P4 only to the extent of 540 sq.feet out of 1080 sq feet in the suit property. The next question that arises is whether the gift deed is valid since it is only to the extent of half share of the mother of the plaintiff. The plaintiff has pleaded that his mother could not have executed gift deed at Ex.P4 in the absence of partition by metes and bounds. While the O.S. No.3259/2023 29 second defendant has admitted in his evidence that no partition deed was affected between his parents during his life time and his father has not executed any GPA, gift deed, relinquishment deed with respect to the suit schedule property in favour of his mother.
22. At this stage it is necessary to quote the judgment of the Supreme Court in S.K. Golam Lalchand v. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes & Ors. (Neutral Citation: 2024 INSC 676), wherein it is held that held that a co-owner of a non-partitioned property cannot transfer the entire property without getting his share determined and demarcated to bind the other co- owners. The Supreme Court stated that the co-owner alone was not competent to execute a sale of the entire property in favour of the appellant that too without its partition and the said sale deed executed by the co owner though in accordance with Section 44 of the Transfer of Property Act, 1882 may be a valid document to the extent of the share of O.S. No.3259/2023 30 co owner in the property and defendant/ appellant S.K. Golam Lalchand is free to take remedies to claim appropriate relief either by suit of partition or by suit of compensation and damages against Brij Mohan, Consequently, the Court held that the suit property which is undivided is left with the co-owners to proceed in accordance with law to get their shares determined and demarcated before making a transfer. Therefore drawing inspiration from the above judgment it can be concluded that even in the instant case the gift deed at Ex.P4 is no doubt valid to the extent of half share of the mother of the plaintiff and is thus in accordance with Section 44 of the Transfer of property Act but the said document cannot be given effect to in the absence of partition between the co owners of the property. Admittedly on the death of the father of the plaintiff in 2013, the plaintiff and defendants had succeeded to the half share of the property left behind by their father and such the mother of the plaintiff could O.S. No.3259/2023 31 have sought consent of these persons before executing the Gift deed. The mother of the plaintiff was no doubt entitled to execute gift deed or other document transferring her undivided right in favour of any person and as such the second defendant is entitled to the ½ share of his mother in the suit property . The mother of the plaintiff did not have right to execute the gift deed in favour of the defendant No.2 with out partition of property by metes and bounds or without the consent of the other co-owners of the property and thus the transfer of half share in the suit property is subject to the partition of the suit property by metes and bounds.
23. It is also relevant to note on the death of the father of the plaintiff in 2013, the plaintiff, his mother, defendant no.1 and 2 were all entitled to succeed to ¼ share in the half share of the property left behind by their father and upon the death of their mother, the plaintiff , O.S. No.3259/2023 32 defendant no.1 and 2 are entitled for 1/3rd share in the half share in the suit property.
24. Thus in the light of the above judgment the second defendant is entitled for ½ share in the suit property( share of his mother ) together with 1/3 share ( share in the property of his father) in the remaining half share in the suit property. Similarly the plaintiff and first defendant are entitled for 1/3rd share each in the suit property in the remaining half share of the property. Therefore in all the second defendant is entitled for ½ +1/6 share in the suit property i.e., 2/3 rd share and the plaintiff along with defendant no.1 are entitled for 1/6th share each in the suit property. In all the plaintiff defendant no.1 and defendant no.2 are entitled for 1/3rd share each in the half share in the suit property only.
25. Now it is the other contention of the second defendant that he has constructed the RCC roofing ground O.S. No.3259/2023 33 floor, I floor, II floor and III floor houses in the entire schedule property by spending his hard earned money to the tune of Rs.75,00.000/- The second defendant has denied that the plaintiff got knowledge of the Gift deed recently and thus has contended that after the execution of the gift deed the second defendant has developed the western portion of the property gifted to him. It is also averred that his mother and himself had leased the houses in the suit property to the tenants to clear the hand loans borrowed by the defendant no.2.
26. The defendant no.2 in support of his plea has produced Ex.D1 to Ex.D23 documents in support of his case.
Ex.D. 1 Computer generated statement of account consisting of 334 pages.
Ex.D. 2 Section 65B certificate
Ex.D. 3 Computer generated Bank statement
Ex.D. 4 On-line copy of loan sanction letter
Ex.D.5 2 Bills both dated 02.06.2017
and 6
O.S. No.3259/2023
34
Ex.D. 7 Bill dated 05.06.2017
Ex.D. 8 Bill dated 29.05.2017
Ex.D. 9 Bill dated 10.12.2017
Ex.D. 10 Trip sheet dated 29.09.2016
Ex.D. 11 Bill dated 27.02.2018
Ex.D. 12 Original certificate of Bachelor of
Engineering
Ex.D. 13 Relieving letter dated 06.06.2008
Ex.D. 14 Relieving letter dated 13.02.2009
Ex.D. 15 Relieving letter dated 09.04.2010
Ex.D. 16 Appointment letter dated 09.04.2010
along with contract of employment
Ex.D. 17 Letter dated 17.11.2010
Ex.D. 18 7 salary slips of defendant No. 2
Ex.D. 19 10 salary slips of defendant No. 2
Ex.D. 20 Digital copy of sale deed
dated 09.07.2010
Ex.D. 21 Digital copy of sale deed
dated 14.07.2010
Ex.D. 22 Digital copy of sale deed
dated 22.10.2021
Ex.D. 23 Digital copy of Gift deed
dated 05.12.2016
27. By placing reliance on these documents the second defendant has contended that the first defendant O.S. No.3259/2023 35 has been paid monetary consideration in lieu of her share and the plaintiff is only entitled to half share in the half portion of the suit property.
28. Upon a minute scrutiny of the defense evidence it is evident that there is the second defendant has not pleaded material facts regrading the about the nature of the occupation and the income earned by him in order to spend an amount of Rs 75,00,000/- for the construction of the building over the suit property. The defendant no.2 has not pleaded particulars of the loan transactions and the payments made by him at different stages of construction. Further he has not furnished any material documents regarding his application to the BBMP for seeking permission for construction of the building at suit schedule property and how the construction of the ground floor and three floors building were undertaken by him at different points of time.
O.S. No.3259/2023 36
29. Under Section 103 the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Similarly under Section 106 of the Indian Evidence Act, the burden of proving fact especially within knowledge of a person is upon him. Therefore the burden is on the defendant to prove his contentions regarding the personal contributions made by him for the construction of the building and so also with regard to appropriation of rents towards the construction of the building in the suit property. It is relevant to note that DW1 has admitted that the construction commenced in the year 2016 and ended in 2018 . DW1 has deposed that he has produced his HDFC bank statement to show that he has contributed RS.75,00,000/- towards the construction of the building at the suit property and that he has paid the amount over the stretch of period from 2010 to 2021. However it is noted O.S. No.3259/2023 37 that Ex.D1 account statement is not confronted to PW1 during his cross examination and in fact it is suggested that second defendant has transferred more than one crore for the purchase of the site and construction of the building and further suggested that he has transferred 25,00,000/- to the bank accounts of his mother and these suggestions are denied by PW1 and he has further voluntarily stated that these transfers are the rental income . PW1 has stated that the rental income from property bearing no. 46/9 was utilized for the construction of the suit property. The counsel for the second defendant has only suggested that there was no substantial rental income from the property bearing no. 46/9 but has not suggested that there was no rental income at all. DW1 has deposed that Ex,D5 and D6 are the tax invoice of bills for purchasing submersible motors. Ex.D7 is the bill for having purchased fans in the suit schedule property . Ex.D8 is the purchase bill of the hardware items and EX.D9 and 10 are only the estimation O.S. No.3259/2023 38 of the costs and not bill. DW1 has admitted that he has not produced the GST bill in respect of the items purchased under Ex.D10 and further admitted apart from Ex. D5 to D10 he has not produced any other document to show that he has borne the expenses of the construction of the building in the suit property. DW1 has admitted that his mother had obtained gold loan to meet the construction expenses. DW1 has stated that the rental income from suit property is appropriated to the loan account and maintenance charges and he has admitted that he has not produced documents for hand loan transactions. DW1 has further stated that he has not declared the hand loan amount or the amount paid to his mother for the construction of the building in his IT returns. It is also noted that Ex.D4 is the loan sanction letter dated 6.8.2022 the second defendant has not indicated as how the said document is relevant when the construction as admitted by him was already completed in 2019.
O.S. No.3259/2023 39
30. Thus the evidence on record clearly suggests that there is no clinching and cogent evidence to demonstrate that the second defendant alone has incurred the entire expenses for the construction of the building in the suit property. Even other wise the second defendant cannot claim that the plaintiff has acquiscenced the improvements and receipt of rental income by the second defendant as such he is the absolute owner of the property by adverse possession. There is no material on record either oral or documentary that the plaintiff has allowed the second defendant to assert his right on the basis of the Gift deed at EX.P4. It is well settled that the law does not recognize any such right in one co-sharer to make improvement in co-ownership property without express consent granted by other co-owners. The entitlement to get a share in a co- ownership property is a very valuable right and it cannot be defeated by one co-owner by constructing a building in it without the consent of other co-owners. In this O.S. No.3259/2023 40 regard this court's opinion is fortified by the judgment of by Krishna lyer J. in the judgment under appeal, a Full Bench of Kerala High Court in Kunjamma Cicily v. Sulaikha Beevi, ILR, (1968) ,2 Ker 366 = (AIR 1969 Ker 293) (PB) has considered the question of adverse possession of co-ownership property, outstanding on usufructuary mortgage. It was observed by the Full Bench (vide paragraph 19) that the mere execution of documents by two of the co-owners on the footing that they are full owners of the property, cannot deprive the plaintiff co-owner of his rights so long as be was not party to the documents, and it had not been shown by other circumstances, that he had knowledge of these transactions, and hostile assertion. Thus in view of the above judgment the claim of second of the second defendant that he has constructed the building in the suit property and therefore he is the owner of the suit property is not acceptable.
O.S. No.3259/2023 41
31. Yet another claim of the second defendant is that the 1st defendant has relinquished her rights by receiving the gold and silver articles and cash of Rs.25 Lakhs and as such she is not entitled for 1/3rd share in the suit property. Though the 2 nd defendant has produced his account statement to justify his claim, but in the absence of any registered document relinquishing the right over the portion of the suit schedule property, the said contention is not tenable. DW1 has deposed that he has paid a sum of Rs.1450,000/ to the first defendant in lieu of her share in the suit property on 16.10.2021 and apart from the said amount he has paid 50,000/- in cash. DW1 has admitted the defendant no.1 has not executed any document relinquishing her share in the suit property on the receipt of the said sum . Therefore, the said contention of second defendant is negatived. Hence the plaintiff has proved that the himself and the defendant no.1 and 2 are entitled for 1/3rd share in the half share in the suit O.S. No.3259/2023 42 property and the Gift deed dated 11.6.2020 executed by the mother of the plaintiff in favour of the second defendant in not binding on his share. Hence, Issue Nos.2 and 3 are answered in the Affirmative; Issue No.4 in the Negative and issue no. 5 is answered in affirmative.
32. Additional issue no.1 : The plaintiff has sought the relief of permanent injunction with respect to the suit property but there is no pleading in the plaint that he is in the exclusive possession of the suit property and the defendants are interfering with his possession. In fact it is the case of the plaintiff that the second defendant in the absence of the plaintiff has let out the houses in the suit property to the tenants of his choice and is appropriating the rental income to himself. In view of these contentions and fact that the plaintiff has sought the relief of partition the prayer for the grant of permanent injunction does not O.S. No.3259/2023 43 arise for consideration and accordingly the prayer is rejected.
33. Additional issue no.2 : It is averred in the plaint that the suit property consists of a residential building having 10 separate houses in the building thereon and after the death of mother of the plaintiff and defendant no.2. both of them have given the entire suit property on rent till 2022 and the plaintiff and second defendant were jointly taking rents and later on the second defendant has changed the tenants without the knowledge of the plaintiff and now he has refused to pay the share of rents to the plaintiff and thus the second defendant has been appropriating the rental income from the suit property and thus the plaintiff is entitled for his share of profits. The question of granting mesne profits in a suit for partition does not arise . However, there can be a direction for rendition of accounts and the said prayer can be considered during the course of Final Decree Proceedings. Thus considering the nature of relief O.S. No.3259/2023 44 sought in the suit for partition and the evidence and record this court is of the opinion that the prayer for mesne profits is treated as the prayer for accounts which shall be adjudicated during the Final Decree Proceedings. Therefore the additional issue no.2 is answered accordingly.
34. Issue No.6 :- In view of my findings on Issue Nos.1 to 5, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed in part.
1. The plaintiff , 1st and 2nd defendants are entitled for 1/3rd share each in the half share in the suit schedule property .
2. The gift deed dated 11.6.2020 executed by the mother of the plaintiff in O.S. No.3259/2023 45 favour of the defendant no.2 vide registered as document NO. BMH-1-
00598-2020-2021, CD NO. BMHD-1169, Book NO.1 registered before the Sub Registrar, Bommanahalli, Bangalore is not binding on the share of the plaintiff.
3. The prayer for permanent injunction is rejected.
4. The prayer for mesne profits is treated as the prayer for accounts and the same shall be adjudicated during the Final Decree Proceedings.
Office to draw preliminary decree For steps under Order XX Rule 18 C.P.C for drawing final decree, in terms of direction of Hon'ble Apex Court in the judgment of Kattukandi Edathil Krishnan and another Vs. Kattukandi Edathil O.S. No.3259/2023 46 Valsan and others (2022 SCC Online SC
737) Call on 30.10.2024.
(Dictated to the judgment writer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 19th day of September , 2024).
(SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 - Sri Ramesh S. - 29.01.2024
b) Defendants' side:
DW.1 - Sri Mahesh S. - 12.06.2024
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P. 1 Notarized copy Family tree
Ex.P. 2 On-line copy of sale deed dated 14.07.2010
Ex.P. 3 Death certificate of Amuda
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47
Ex.P. 4 On-line copy of Gift deed dated 11.06.2020
Ex.P. 5 EC from 01.04.2004 to 08.06.2022
Ex.P. 6 Form no. 16 dated 21.03.2023
Ex.P. 7 Print out of photographs
Ex.P. 8 CD is marked subject to production of Section
65 B certificate.
Ex.P. 9 Certificate under Section 65B of Indian
Evidence Act.
b)Defendants' side :
Ex.D. 1 Computer generated statement of account
consisting of 334 pages.
Ex.D. 2 Section 65B certificate
Ex.D. 3 Computer generated Bank statement
Ex.D. 4 On-line copy of loan sanction letter
Ex.D.5 2 Bills both dated 02.06.2017
and 6
Ex.D. 7 Bill dated 05.06.2017
Ex.D. 8 Bill dated 29.05.2017
Ex.D. 9 Bill dated 10.12.2017
Ex.D. 10 Trip sheet dated 29.09.2016
Ex.D. 11 Bill dated 27.02.2018
Ex.D. 12 Original certificate of Bachelor of
Engineering
Ex.D. 13 Relieving letter dated 06.06.2008
Ex.D. 14 Relieving letter dated 13.02.2009
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48
Ex.D. 15 Relieving letter dated 09.04.2010 Ex.D. 16 Appointment letter dated 09.04.2010 along with contract of employment Ex.D. 17 Letter dated 17.11.2010 Ex.D. 18 7 salary slips of defendant No. 2 Ex.D. 19 10 salary slips of defendant No. 2 Ex.D. 20 Digital copy of sale deed dated 09.07.2010 Ex.D. 21 Digital copy of sale deed dated 14.07.2010 Ex.D. 22 Digital copy of sale deed dated 22.10.2021 Ex.D. 23 Digital copy of Gift deed dated 05.12.2016 (SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
O.S. No.3259/2023 49 19.09.2024:
Judgment pronounced in open court (vide separate detailed judgment) ORDER ORDER The suit of the plaintiff is decreed in part.
1. The plaintiff , 1st and 2nd defendants are entitled for 1/3rd O.S. No.3259/2023 50 share each in the half share in the suit schedule property .
2. The gift deed dated 11.6.2020 executed by the mother of the plaintiff in favour of the defendant no.2 vide registered as document NO. BMH-1-00598-
2020-2021, CD NO. BMHD-1169, Book NO.1 registered before the Sub Registrar, Bommanahalli, Bangalore is not binding on the share of the plaintiff.
3. The prayer for permanent injunction is rejected.
4. The prayer for mesne profits is treated as the prayer for accounts and the same shall be adjudicated during the Final Decree Proceedings.
Office to draw preliminary decree For steps under Order XX Rule 18 C.P.C for drawing final decree, in terms of direction of O.S. No.3259/2023 51 Hon'ble Apex Court in the judgment of Kattukandi Edathil Krishnan and another Vs. Kattukandi Edathil Valsan and others (2022 SCC Online SC 737) Call on 30.10.2024.
(SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
O.S. No.3259/2023 52