Karnataka High Court
Sri. Chandrashekar vs Smt. Manjula W/O Chandrashekar Harti on 30 January, 2025
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30 TH
DAY OF JANUARY, 2025
®
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
RFA NO. 100017 OF 2021 C/W
RFA No. 100013 OF 2021 (PA/DE/IN)
BETWEEN:
SRI. CHANDRASHEKAR
S/O CHANNABASANAGOUDA HARTI
AGED 49 YEARS, OCC: GOVT. SERVICE
R/O MICHIGAN COMPOUND, SAPTAPUR
DIST . DHARWAD - 580 008 ... APPELLANT
[COMMON IN BOTH APPEALS]
(BY SRI.SRINAND A. PUCHCHAPURE, ADV.)
AND:
1. SMT. MANJULA
W/O CHANDRASHEKAR HARTI
AGED 50 YEARS, OCC: GOVT. SERVICE
R/O PLOT NO.2, AISHWARYA LAYOUT
BEHIND SARVAMANGALA HOSPITAL
SAPTAPUR, DIST - DHARWAD
Digitally signed by
MALA K N 2. KUMAR AKHILESH
Location: HIGH COURT S/O CHANDRASHEKAR HARTI
OF KARNATAKA AGED 21 YEARS, OCC STUDENT
R/O PLOT NO.2, AISHWARYA LAYOUT
BEHIND SARVAMANGALA HOSPITAL
SAPTAPUR DIST - DHARWAD - 580 008
... RESPONDENTS
[COMMON IN BOTH APPEALS]
(BY SRI.SHIVAKUMAR S. BADAWADAGI, ADV.)
THESE APPEALS ARE FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 08.12.2020
PASSED IN O.S.NO.41/2015 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE,
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DHARWAD, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION IN THE SUIT AND DECLARATION,
POSSESSION AND PERMANENT INJUNCTION IN THE COUNTER-
CLAIM.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.07.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV COMMON JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In these appeals, the plaintiff has challenged the
judgment and decree dated 08.12.2020 passed in
O.S.No.41/2015 by the I Additional Senior Civil Judge &
CJM., Dharwad ('the Trial Court', for short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before the
Trial Court.
3. The suit schedule properties consist of house
property bearing Sy.No.59K/1/B(59PÀ/1§), plot No.3
measuring 3 guntas 3 annas situated at Michigan
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Compound, Saptapur, Dharwad ('item No.1 of suit
property' for short) called as 'Hostel Building' and a
house property bearing Sy.No.97/1K(97/1PÀ), plot No.2
measuring 3 guntas 6 Annas situated at Aishwarya
Layout, Behind Sarvamangala Hospital, Saptapur,
Dharwad ('item No.2 of suit property' for short) called as
'residential house'.
4. Brief facts of the case are, both plaintiff and
defendant No.1 while working as Research Associates at
University of Agricultural Science, Dharwad fell in love
and got married on 26.07.1996 at Someshwar Temple
located at Hosakatti village of Dharwad Taluk. Their
marriage was registered under the Hindu Marriage Act,
1955 in the office of the Sub-Registrar, Dharwad. At the
time of marriage, both were drawing salary of Rs.5,000/-
each.
4.1. After marriage, couple shifted to Hebballi Farm
residence and they lived together happily. They resided
together at Hebballi Farm for about one year, thereafter
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shifted to rented house at Shrinagar and stayed upto
1999. As a result of their wedlock, defendant No.2 was
born on 10.07.1999.
4.2. While the couple were working together, out of
their salary savings and by raising loan, they jointly
purchased plot in item No.1 of suit property on
30.12.2002. The plaintiff paid stamp duty, registration
charges for purchase of plot. They also put up a Hostel
building for letting out rooms to the students. They also
borrowed joint loan of Rs.14 lakhs from the Bank of
India, Dharwad Branch for construction purpose. For
construction of Hostel building, the plaintiff has borne
cost of construction materials, consultation fee paid to
the Engineer, building permission expenses, building tax,
electricity connection, etc. After completion of the
building, the rooms were let out to the students and they
were realizing the rental income, used to discharge the
bank loan and it being jointly enjoyed w.e.f. 01.10.2010.
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4.3. Again on 13.07.2011, the couple have
purchased plot in item No.2 of suit property for
construction of the residential house. Plaintiff has paid
Rs.2 lakhs to defendant No.1 through his bank account
for purchase of the plot. The construction of house was
completed by 15.12.2013. The plaintiff spent money
towards stamp duty, registration charges of plot, also
spent money towards construction materials, engineer's
consultation fee, building permission expenses, tax,
electricity connection for the house. The sale deeds
pertain to item Nos.1 and 2 were pledged to the Bank as
security to loan.
4.4. The plaintiff was working as Commercial Tax
Inspector, being a Government servant, he was not
getting permission for construction immediately.
Defendant No.1 being University employee did not
require any permission from the Government. Hence,
both the plots were purchased and construction was also
made in her name. Both the properties were purchased,
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building was constructed jointly and therefore, couple is
having equal share in it.
4.5. Differences arose between the couple in the
year 2006 and it was persisted and continued. Both felt
that it is not possible for them to lead marital life
together. On 18.04.2014, conciliation process was held
in presence of elders of both families. They advised the
couple to live separately for a period of one month. In
persuasion of such conciliation, the plaintiff started living
in one of the rooms at Hostel building. Defendant Nos.1
and 2 were residing in the residential house.
4.6. Defendant No.1 got drafted mutual consent
divorce petition to be filed before the Family Court.
Simultaneously, an agreement was also drafted and both
were agreed to abide by the said terms after getting the
divorce. As per the said agreement, the plaintiff is
required to vacate the residential house and own Hostel
building and defendants to own residential house. In
compliance of said terms, he had vacated the house and
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shifted to Hostel building. The defendants continued to
reside in the residential building.
4.7. Thereafter, defendant No.1 refused to abide by
the terms of said agreement and began to assert her
exclusive right over both items. Taking advantage of
both items standing in her name, plaintiff started denying
right, title and ownership of the plaintiff over both items.
She started harassing the plaintiff, threatening that he
will be thrown out of the Hostel building and to this
extent, she has sent e-mails as well as messages.
Defendant No.1 in order to harass the plaintiff filed a
written request to HESCOM for disconnection of the
electricity supply to Hostel building. In this connection,
on 14.12.2014 Police complaint was filed to Sub-Urban
Police Station, Dharwad and it was registered in Crime
No.301/2014.
4.8. As the suit properties are purchased out of
joint earning and loan, both plaintiff and defendant No.1
are the joint owners and therefore, the plaintiff is entitled
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to half share in the suit properties. As the defendant
No.1 denied to effect partition, the plaintiff was
constrained to file the instant suit seeking partition and
separate possession of his half share in the suit
properties.
5. Defendant No.1 has opposed the suit by filing
written statement, admitting the relationship between
them, their employment and begetting son/defendant
No.2. It is her case that in October 1997, she secured a
permanent government job and shifted to a rental house
at Srinagar, Dharwad. During her pregnancy, the
plaintiff started harassing her, due to which she had to
return back to her parental house and stayed between
1999 to 2014.
5.1. At the time of marriage, her father gifted 4
acres of land to her. The plaintiff enjoyed the said land
till he got the job as Commercial Tax Inspector in the
year 1998. She admitted purchase of item No.1 on
02.01.2003, item No.2 on 13.07.2011 and also
construction of the Hostel building and thereafter
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residential house. She denied any financial contribution
by the plaintiff in purchase of both plots and towards
construction of the Hostel building and residential house.
It is her specific case that she has purchased both suit
properties out of her salary income and also by raising
loan. By borrowing loan from the Bank, firstly she has
put up construction of Hostel building and residential
house later. She was helped by her parents and she had
taken financial help from the relatives for construction.
She also denied plaintiff contributing any money by
raising loan either from GPF or KGID at any point of time.
5.2. The plaintiff though working as Commercial
Tax Inspector at Navanagar, Hubli, he never bothered to
look after his wife and son, he used to come home late,
quarrel with her and subjected them to cruelty. The
relationship between the husband and wife from the
beginning of the marriage was not cordial, plaintiff had
never given any financial assurance or assistance to her.
She was never under the control of the plaintiff or his
financial position. In order to cheat her, plaintiff has
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invented false grounds that the suit properties are
purchased and buildings were constructed from out of
the joint earning, savings and by raising loans. The suit
properties are not the joint properties of plaintiff and
defendant No.1, he has no right, title or interest over the
suit properties, it is her self-acquired properties.
5.3. The defendant No.1 has also filed counter
claim under Order VIII Rule 6A of CPC, seeking
declaration of title over the suit properties.
6. The Trial Court has framed the following issues:
1. Whether Plaintiff proves that suit schedule
properties are purchased by Plaintiff and D-1
jointly out of their income?
2. Whether Plaintiff proves that he is entitled
for half share in the suit property?
3. Whether D-1 proves that she is the
absolute owner of suit schedule property as
stated in her counter claim acquired out of her
own earnings?
4. Whether the counter-claimant is entitled for
the reliefs sought?
5. Whether the Plaintiff is entitled for the
reliefs claimed?
6. What Decree or Order?
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7. In order to prove his case, plaintiff examined two
witnesses as PWs-1 and 2 and marked 15 documents as
Exs.P1 to P15. On behalf of the defendants, defendant
Nos.1 was examined as DW-1 and Exs.D1 to D27 were
marked. The Trial Court answered issue Nos.1, 2 and 5
in the negative and issue Nos.3 and 4 in the affirmative.
While answering issue No.6 dismissed the suit filed by
the plaintiff and decreed the counter claim filed by
defendant No.1 declaring that defendant No.1 is the
absolute owner of the suit properties and directed the
plaintiff to hand over possession of the hostel building in
favour of defendant No.1 within two months from the
date of judgment.
8. Aggrieved by the dismissal of the suit, the
plaintiff has filed R.F.A.No.100017/2021 and challenging
the decree of counter claim, he has also filed
R.F.A.No.100013/2021 on various grounds.
9. We have heard the arguments of Sri.Srinand
A.Pachchapure, learned counsel for the plaintiff and
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Sri.Shivakumar S.Badavadagi, learned counsel for the
defendants.
10. It is contended by the learned Counsel for the
plaintiff that, marriage between plaintiff and defendant
No.1 was a love marriage. They got married on
26.07.1996. On 10.07.1999, defendant No.2 was born
to their marital life. On 30.12.2002, open plot in item
No.1 and on 13.07.2011, open plot in item No.2 was
purchased by the plaintiff in the name of defendant No.1.
In item No.1, they have constructed a Hostel building in
the year 2010 and let it out to the students for the
purpose of earning income. Accordingly loan was
borrowed in the name of defendant No.1 and the plaintiff
invested construction cost from out of his personal
savings. Rental income being utilized for discharge of
loan borrowed. The construction cost of residential
house was borne by the plaintiff and joint loan was also
borrowed. The plaintiff is also discharging the joint loan
and also from Hostel income. The loan borrowed by both
plaintiff and defendant No.1 was discharged out of joint
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savings, earnings, thereby both plaintiff and defendant
No.1 are having joint right, title and ownership over the
suit properties and they are entitled to equal share in the
suit properties.
10.1. It is further contended that the construction
of house building was completed on 15.12.2013. In the
year 2014, a dispute arose between the couple as
defendant No.1 started doubting the character of the
plaintiff, she started making false allegation that, he is
having illicit relationship with other ladies. On
18.04.2014, conciliation was held before the elders, it
was resolved to separate the couple and advised them to
obtain divorce by mutual consent. Joint petition was also
drafted and mutually an agreement was drafted on
2.6.2014 wherein the house property was allotted to
defendant No.1 and Hostel building was allotted to
plaintiff. Accordingly, it was agreed to go for mutual
consent divorce and sharing of the properties, but the
defendant No.1 went back from her promise and acted
against the terms of agreement and the plaintiff was
evicted from the residential house. Plaintiff started
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residing in one of the rooms at Hostel building. The joint
petition was not filed. Thereafter the plaintiff himself filed
the petition under Section 13(1)(a) of the Hindu Marriage
Act, which came to be decreed granting decree of
divorce. Sufficient evidence is placed on record to show
that the plaintiff has invested money towards purchase of
open plots, construction of the Hostel building and
residential house. Inspite of it, the defendant No.1 was
not willing to part with the properties, which forced the
plaintiff to come before the court.
11. Per contra, learned counsel for defendants has
contended that, plaintiff never parted with any money for
purchase of the plots or construction. Even though joint
loan of Rs.14 lakhs was borrowed from Bank of India, not
a single pie was discharged by the plaintiff. Even after
construction of the Hostel building, it is the plaintiff, who
is enjoying the rental income and loan has been
discharged by defendant No.1 out of rental income only.
Since the plaintiff subjected defendant No.1 to cruelty,
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differences arose between the couple, which ended in
decree of divorce.
11.1. It is further contended that there was no
consensus between the plaintiff and defendant No.1 to
draft a joint petition for mutual divorce nor any
agreement came to be drafted. The said drafts are only
drafts, the defendants are not party to it and defendant
No.1 never agreed to part with the Hostel building in
favour of plaintiff. The plaintiff himself was residing in
one of the rooms at Hostel building. It is the defendant
No.1, who purchased the plot and put up Hostel and
house buildings out of her savings, her earnings, raising
loan, taking financial assistance from her parents and it
is her self-acquired property. In the course of cross-
examination, plaintiff himself admitted that he has not
paid any money towards bank loan. The documents
produced by the plaintiff pertain to the income of the
Hostel building. No material is placed on record to show
that he has borrowed any loan from the KGID or GPF in
the year 2014 for construction purpose. No evidence is
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made available to establish joint discharge of loan at any
point of time. Hence, defendant No.1 is entitled for
decree of counter claim and the Trial Court has rightly
dismissed the suit and decreed the counter claim.
12. We have given our anxious consideration to the
arguments addressed on behalf of the parties and
perused the records.
13. The points that arise for our consideration
are:
(i) Whether the suit item Nos.1 and 2 are
the joint acquisition of plaintiff and defendant
No.1?
(ii) Whether the Hostel building and
residential house were constructed by their
joint investment?
(iii) Whether the impugned judgment and
decree passed by the Trial Court is erroneous
and calls for our interference?
Reg. Point No.(i):
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14. There is no dispute as to the relationship
between the parties and that the suit item Nos.1 and 2
are acquired in the name of defendant No.1. The plaintiff
and defendant No.1 both were employed, earning
members in the family and they were drawing
independent salary. Item No.1 was acquired on
30.12.2002 for a consideration of Rs.4,75,000/-. Item
No.2 was acquired on 13.07.2011 for a consideration of
Rs.10,20,000/-.
15. It is the contention of the plaintiff that he has
contributed for purchase of item Nos.1 and 2 from out of
his salary. In this regard, on perusal of Exs.P1 and P2,
there is no reference of the plaintiff either as a witness or
his role as husband of defendant No.1. In acquiring
these two properties, documents are produced in the
form of Bank Pass Books as per Exs.P3 and P4 and also
loan borrowed from the KGID and GPF as per Ex.P5 and
the Bank Statement as per Exs.P6, P7 and P8. None of
these records did point out that either at the time of
acquisition of item No.1 on 30.12.2002 or item No.2 on
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13.07.2011, any reference of the plaintiff contributing
any money towards sale consideration that was paid
under these two documents. Though plaintiff claims that
he being the Commercial Tax Inspector has contributed
money for purchase of item Nos.1 and 2, as defendant
No.1 is not required to take any prior permission from
the department, but he is required to take prior
permission from the Government for purchase of the
property. For logical purpose, this may be a right
contention raised by the plaintiff, but when the property
was purchased in the name of his spouse, law has been
settled by the Apex Court in a catena of judgments and it
is relevant to refer to some of them.
16. In V.Tulasamma and Others -vs- Sesha
Reddy (dead) by LRs.1, the Hon'ble Apex Court while
interpreting Section 14 of the Hindu Succession Act,
1956 ('the Act' for short) has interpreted that property
possessed by a female Hindu, whether acquired before or
1
AIR 1977 SC 1944
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after the commencement of the Act, becomes her
absolute property.
17. In K.V.Narayanswami Iyer -vs-
K.V.Ramakrishna Iyer and Others 2, the Hon'ble Apex
Court held that mere financial contribution by one spouse
does not automatically confer joint ownership if the
property is registered in the other spouse's name. Clear
evidence of intent to create joint ownership is essential.
18. In Valliammal (dead) by LRs., -vs-
Subramaniam and Others3 the Hon'ble Apex Court has
reiterated that the payment or contribution towards
purchase of property does not establish ownership unless
there is clear evidence of intent to share ownership
between spouses.
19. In Saraswathi Ammal and Another -vs-
Rajagopal Ammal4, the Hon'ble Apex Court has
emphasized that property registered solely in one
2
AIR 1965 SC 289
3
(2004) 7 SCC 233
4
AIR 1953 SC 491
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spouse's name remains legally theirs unless compelling
proof shows that it was intended as a joint acquisition.
20. It is relevant to refer to Section 14(1) of the
Act. This Section states that any property possessed by
a female Hindu, whether acquired before or after the
commencement of the Act, shall be held by her as full
owner thereof and not as a limited owner. It aims to
remove the limitations on a women's property rights and
confer absolute ownership.
21. Section 14(2) of the Act serves as an
exception to Section 14(1) stating that any property
acquired by a female Hindu through a gift, Will or any
other instrument prescribing a restricted estate shall not
be considered as her absolute property.
22. In this context, the Hon'ble Apex Court in the
above judgments clarified that if Section 14(1) of the Act
is to apply, the woman must not only possess the
property but must have acquired it through lawful
means. Ultimately, it came to the conclusion that while
financial contributions by both spouses are significant,
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the legal ownership of property depends on various
factors including the intent to create joint ownership and
compliance with statutory provisions.
23. The Hon'ble Apex Court has consistently held
that mere contributions without clear evidence of intent
do not confer any joint ownership rights. Therefore, in
the absence of strict proof of joint ownership intent, the
property registered in the name of one spouse is
presumed to be their separate property. The law of the
land has been discussed above and we have to consider
the intent of the parties with reference to the pleadings
and the evidence on record.
24. The plaintiff has reiterated the fact of his
contribution, as we referred to supra, the documents
produced by him under Exs.P1 to P8 did not point out
anything in support of him. In the course of cross-
examination, it is elicited that marriage between the
plaintiff and defendant No.1 was a love marriage, it was
performed in a temple and for this reason, father of
defendant No.1 gave her 4 acres of land and it being
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cultivated by the plaintiff to generate income. As we see
from the evidence, at the time of acquisition of item No.1
in the year 2002, as the salary of both plaintiff and
defendant No.1 was meager, the income generated from
agricultural land has also been utilized.
25. In order to consider the intention of the
plaintiff to acquire suit item Nos.1 and 2 in the name of
defendant No.1 for the reason that he was unable to get
prior permission from the Government, in order to
explain the difficulty for the plaintiff to get prior
permission from the Government for acquisition of the
property, there is no iota of evidence. Mere pleading and
assumptions are made without any basis. The plaintiff
has not placed any evidence for having applied for
permission to acquire the properties and he has any
other source of income to acquire or any delay in getting
sanction. Thus, it is clear that, the conduct of the
plaintiff in saying that the property was acquired in the
name of defendant No.1 on the ground that she is not
required any prior permission cannot be sustained.
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26. Defendant No.1 is an employee of the
University which is also governed by the Conduct Rules
and there is no evidence to the effect that she is not
required to take prior permission from her department.
Hence, we do not find any substance in the claim of the
plaintiff that the acquisition in the name of defendant
No.1 was on the ground of difficulty in getting prior
permission from the Government.
27. As we discussed above, law laid down by the
Apex Court that even if it is a joint acquisition, in view of
Section 14(1) of the Act, item Nos.1 and 2 become the
absolute property of defendant No.1. It is for the plaintiff
to establish that the intent was to acquire the property
jointly. It is interesting to note that for a period of one
year, the couple lived happily. Thereafter differences
arose between them and ultimately due to such
differences, the plaintiff has filed the petition under
Section 13 of the Hindu Marriage Act, 1955, seeking
decree of divorce and same was allowed. This clearly
goes to show that the relationship between the couple
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some days after the marriage was not cordial and there
is co-habitation issue between them. If such differences
arose between both couple, whether the evidence of the
plaintiff explains the intent of joint acquisition is to be
assessed.
28. As we assessed the evidence on record, we do
not find any reason, which will speak in support of the
plaintiff that the acquisition of item Nos.1 and 2 was the
joint acquisition of plaintiff and defendant No.1 and it
was intended for the joint ownership. Hence, we answer
point No.(i) in the negative.
Reg. Point No.(ii):
29. Undisputedly, the hostel building was
constructed for earning income, it was leased to students
and income is being generated. The evidence on record
clearly points out that the Bank loan was borrowed in the
name of defendant No.1 for construction of hostel
building. The plaintiff is the co-obligant to his wife. After
construction of the hostel building, the building is being
maintained by the plaintiff only. In the course of cross-
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examination, plaintiff has admitted that he has not paid
any money from his Bank account towards discharge of
loan. The plaintiff has produced several challans for
having paid money towards the loan which are found in
Ex.P12. It is interesting to note that on 10.04.2012,
07.08.2012, 14.09.2012, 28.02.2013 and 14.04.2013,
the plaintiff has paid loan amount to defendant No.1 in a
sum of Rs.3.5 lakhs, Rs.1 lakh, Rs.6 lakhs, Rs.2 lakhs
and Rs.3 lakhs respectively, but these are the amount
not paid from the salary or bank account of the plaintiff,
defendant No.1 asserted that these are the income
generated as rent from the hostel building that has been
paid to the Bank account. In view of the admission of
the plaintiff that he has not paid any money from his
Bank account, then whatever money paid by him under
Ex.P12 is the income generated from the hostel building.
30. The plaintiff contends that he has spent huge
money towards construction of the hostel building. He
admits that he has a separate account for having
purchased the construction materials. When the
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construction of hostel building was started, the plaintiff
has left the job in the University and he was a
Commercial Tax Inspector at Dharwad. The plaintiff has
got documents to show that he has borrowed money
from his relatives and friends towards construction of the
hostel building, but no evidence is available in his favour.
The only document that would support the plaintiff is the
loan sanctioned to him by the KGID and GPF, which is
available in the form of Ex.P5. Ex.P5 is an HRMS
generated document which explains that on 22.07.2013,
a sum of Rs.50,000/- was sanctioned as loan from the
G.P.F. and Rs.1,65,662/- was sanctioned loan on
20.09.2011 from the K.G.I.D. But there is no evidence
on record that these amounts were utilized towards
construction of the house. The plaintiff has produced the
Bank statement as per Ex.P6 issued by the State Bank of
India, Vidyanagar Branch to show that on 08.07.2011, he
has transferred a sum of Rs.2 lakhs in the name of
defendant No.1, again on 30.08.2011, he has transferred
Rs.1 lakh in favour of defendant No.1. These are the
relevant dates where no sale deeds nor any construction
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of the house were taken place. Hence, it is for the
plaintiff to explain, in what context, these transfers were
effected by him. It could be appreciated that he was
managing 4 acres of land given to defendant No.1 as a
gift and he was generating the agricultural income. In
that context, if these entries are appreciated, he might
have paid agricultural proceeds in the form of cash.
31. As regards construction is concerned, the
plaintiff has not placed any evidence to show that he has
purchased construction materials, electrical connections,
paid any money towards fees of the Engineer. Even the
persons concerned are not examined. The only witness
who is examined on behalf of the plaintiff is his friend,
PW-2/Sri.Rajashekar Fakirappa Bhairappanavar, who
speaks of acquisition of sites and construction of the
building by the plaintiff. His cross-examination
demonstrated that he is totally ignorant about the family
affairs of the plaintiff and defendant No.1 and his
evidence will not throw any light whether the acquisition
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and construction of the house building was for the joint
ownership of the plaintiff and defendant No.1.
32. We have also carefully perused the evidence
of the defendant No.1. Her evidence clearly points out
that the marriage took place in the year 1996 and the
plaintiff shifted to residential quarters of defendant No.1
and they led marital life till 1999 and defendant No.2 was
born in their wedlock in the month of July 1999. She
admits that the plaintiff is the co-obligant for purchase of
the property and in the year 2010, the hostel building
was completed and loan repayment was started. The
plaintiff was repaying the loan from out of the rental
income and he has not paid any money from out of his
salary or from his account. She also deposed about the
acquisition of item No.2 in the year 2003 by raising loan
of Rs.25 lakhs from the University of Agriculture and in
support of it, she has produced Ex.D13. In the year
2014, house construction was completed and the family
dispute had arisen by that time. From 2015, the couple
started living separately. During the course of cross-
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examination, it has been attributed to her that the
plaintiff has taken insurance policy and the maturity
amount was utilized for construction of the house. But
there is no evidence adduced in proof of it by the
plaintiff. The cross-examination of the defendant did not
demonstrate or was there any suggestion that the parties
were intended to acquire the property in the name of
defendant No.1 for their joint enjoyment.
33. As we notice from her evidence that Rs.25
lakhs was borrowed as a loan in the name of defendant
No.1 for construction of hostel and the said amount was
fully utilized for construction. Defendant No.1 had also
got 4 acres of land from her father as a gift and it was
being cultivated by the plaintiff generating additional
income. In the month of January 1999, plaintiff being a
Commercial Tax Inspector was earning salary of
Rs.11,000/- and in the year 1998, defendant No.1 was
promoted as a Professor and she was earning salary of
Rs.20,000/- per month. She has given evidence that her
brother has credited Rs.6 lakhs to her account and
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Ex.P14 is the letter of Bank of India showing the sanction
of loan of Rs.18 lakhs on 12.01.2009.
34. An interesting aspect is that in the year 2014,
differences arose between husband and wife wherein the
plaintiff is making allegation that his wife was ill-treating
him and she was attributing him that he had illicit
relationship with other ladies, which led to conciliation in
the presence of family members, who advised them to
live separately and accordingly the plaintiff left the house
and started residing in the hostel building and defendant
No.1 started residing in the house building.
35. It is not in dispute that M.C.No.11/2015 was
filed by the plaintiff against defendant No.1 seeking
decree of divorce and it has been allowed on 06.06.2017
and decree of divorce was granted. Even prior to filing of
divorce petition, some quarrel took place between the
couple, which led to filing of criminal case in
C.C.No.481/2015 before the Principal Civil Judge and
JMFC., Dharwad.
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36. It is the specific contention of the plaintiff that
in the family negotiations, plaintiff and defendant No.1
have settled to obtain divorce by mutual consent and a
petition for divorce by mutual consent was drafted and in
this regard, there was an agreement entered into
between them wherein it was agreed that the plaintiff to
retain the hostel building and defendant No.1 to retain
the house property. Accordingly, agreement was also
drafted, but defendant No.1 went back from the terms.
To explain this, plaintiff has produced Ex.P11/copy of the
petition under Section 13-B of the Hindu Marriage Act,
1955 and also Divorce Contract. These are only the draft
copies, neither the plaintiff nor defendant No.1 have
signed on these two documents. We are failed to
understand the legal sanctity of these two documents,
which are marked in the evidence. There is no evidence
on behalf of the plaintiff to show that such a document
came into existence in the family conciliation, not a
single family member has been examined before the
Court to state that such conciliation had taken place
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between the plaintiff and defendant No.1. Hence, no
value can be attached to Ex.P11 and such contention
taken by the plaintiff.
37. As we re-appreciate the evidence on record
with reference to oral and documentary evidence, the
plaintiff wants to put in evidence that he has spent
money towards construction, but he has failed to produce
any iota of evidence to show that he has spent money
towards construction from his salary. He was a
Commercial Tax Inspector and the tenor of argument
goes to show that he was earning money in his
department and those money in the form of cash was
pumped into construction of the house. If the plaintiff
has pumped in such illegal money, what was the
necessity for defendant No.1 to raise loan from the Bank
and it has been discharged legally out of her salary and
also income generated in the hostel building. This clearly
goes to show the intention of the parties that it is the
defendant No.1, who acquired property and raised loan
and constructed hostel and house building and the
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income generated in the hostel building and from her
salary, she has discharged the loan. The plaintiff cannot
be allowed to blow hot and cold by saying that his cash
flown from his job as a Commercial Tax Inspector
creating any legal right in his favour over the property.
38. As we discussed above, the law laid down by
the Hon'ble Apex Court with reference to Section 14(1) of
the Act that the property acquired in the name of female
member of the family is her absolute property. In order
to establish the joint ownership, the person, who pleads,
has to place clear evidence to the level of satisfaction
that the acquisition and construction of the house was
with a clear intent of joint ownership between the couple.
But we do not find any such evidence in support of the
plaintiff. Hence, we are persuaded to hold that the
construction of the hostel building and residential house
was not by joint investment as contended by the plaintiff.
Accordingly, we answer point No.(ii) in the negative.
Reg: Point No.(iii):
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39. We have carefully evaluated the pleadings of
the parties, oral evidence of the plaintiff in the form of
PWs-1 and 2, Exs.P1 to P15 and also the evidence of
defendant No.1 in the form of DW-1 and Exs.D1 to D27.
We have also carefully evaluated the judgment of the
Trial Court. The Trial Court has given specific reason that
the plaintiff has failed to prove that the acquisition of the
site property in item Nos.1 and 2 was not out of the joint
income of the plaintiff and defendant No.1, so also the
construction of the house and the Trial Court has rightly
considered the counter claim of the defendant No.1 in
respect of the hostel building that acquisition and
construction was out of her own earnings.
40. As we discussed above, while answering point
Nos.(i) and (ii), the plaintiff has failed to prove that as
consideration towards acquisition of item Nos.1 and 2 as
plot and also construction of the building in both plots,
one is hostel building and another is residential house.
When a person is claiming declaration must stand on his
own footing, he cannot take advantage of the
weaknesses of the defendants.
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41. As we re-appreciated the evidence, we do not
find any error or illegality committed by the Trial Court in
holding that the suit item Nos.1 and 2 are the absolute
property of defendant No.1 and there was no intent of
joint ownership between the plaintiff and defendant No.1.
The Trial Court has rightly dismissed the suit of the
plaintiff and decreed the counter claim. We do not find
any error or illegality in the order of the Trial Court. We
hold that both the appeals are devoid of merits. In the
result, we pass the following;
ORDER
Both appeals are dismissed.
Sd/-
(MOHAMMAD NAWAZ) JUDGE Sd/-
(T. G. SHIVASHANKARE GOWDA) JUDGE KNM List No.: 19 Sl No.: 1