Bangalore District Court
Smt.Rohini Rani C.Desai vs V.R.Datar on 24 September, 2016
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 24th September 2016
PRESENT
SRI MUSTAFA HUSSAIN.S.A., B.A., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.4610/2007
Plaintiff/s Smt.Rohini Rani C.Desai,
W/o Dr.Chitranjan R.Desai,
D/o Late Ranganath R Datar,
Aged about 48 years,
R/at Flat No.A-2, Building No.A,
Group of T.B.Hospitals, Sewri,
M U M B A I - 400 015.
[By Sri.VS.R.K.R., Advocate]
/VS/
Defendant/s: V.R.Datar,
S/o Late Ranganath R Datar,
Aged about 52 years,
R/at No.194, 'Rani Vilas'
1st Floor, 5th Main, 3rd Cross,
3rd Phase, J.P.Nagar,
B A N G A L O R E - 78.
[By Sri.M.S.V., Advocate]
2 O.S.No.4610/2007
Date of institution of 14.06.2007
suit
Nature of the Suit Partition, Mesne profits & permanent
(suit on pronote, suit
injunction
for declaration and
possession suit for
injunction,) etc.
Date of the 13.11.2008
commencement of
recording of the
evidence.
Date on which the 24.09.2016
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 09 03 10
(MUSTAFA HUSSAIN.S.A.)
XVIII Addl.City Civil Judge,
Bangalore.
JUDGMENT
The plaintiff has filed this suit against the defendant for the relief of partition and separate possession of her share and consequential relief of permanent injunction to restrain the defendant from 3 O.S.No.4610/2007 alienating the suit property and to direct the defendant to render accounts in respect of rents and mesne profits and cost.
2. The brief and relevant facts as alleged in the plaint are as follows:
The plaintiff has filed this suit in respect of property bearing No.194, 'Rani Vilas, 5th main, 3rd cross, 3rd Phase, J.P.Nagar, Bengaluru' comprising of ground, 1st floor and 2nd floor, which is the subject matter of the suit and herein after referred as suit property for the purpose of brevity and convenience.
3. The plaintiff has alleged that the defendant is her brother and their parents Late Rangantha R.Datar and Late Vimalabai Ranganath Datar have died intestate on 31.8.1990 and 7.5.2004 respectively. It is further alleged that the plaintiff and defendant have jointly succeeded to the estate of their parents and as such have got undivided half share each in the suit property. It is further alleged that the suit property was the self acquired property of her father and upon his death devolved on his wife and children i.e, plaintiff and defendant equally. It is further alleged that after the death of late. Rangantha R.Datar, the 4 O.S.No.4610/2007 khata of the suit property was transferred in the name of his wife Smt.Vimala Bai and thereafter continued in her name till the filing of the suit. It is further alleged that after the death of mother, plaintiff and defendant have become co-owner and are in joint possession and enjoyment of the suit property and thereafter the plaintiff demanded the plaintiff to effect partition and separate possession of her half share in the suit property, but the defendant avoided partition and on the other hand is appropriating rents and profits arising out of the suit property and even he has not rendered accounts or has given her share legitimate share.
4. It is further alleged that the plaintiff got issued legal notice dated 30.04.2007 calling upon the defendant to effect partition and put her in separate possession of her share in the suit property and despite service of notice, the defendant failed to allot her share. It is further alleged that the defendant is in occupation of the ground and 1st floor portion and 2nd floor is let out on rent and as such plaintiff is entitled for partition and separate possession of her share together with mesne profits. Hence the suit.
5 O.S.No.4610/20075. The defendant has resisted the suit by filing his written statement, interalia contending as under:
The defendant admits the relationship with the plaintiff and also admits the death of his parents on 31.08.1980 and 07.05.2004 respectively. He further admits that the khata of the suit property was transferred in the name of his mother after the death of his father.
6. It is further contended that his father had a flat bearing No. E-504, Andheri Manish Garden Co- operative Housing Society, J.P.Road, Bombay along with other savings, shares and securities. It is contended that aforesaid flat was the self acquired property of his father which was sold by him for a valuable consideration of Rs.6,03,750/- on 21.12.1989 and out of the sale proceeds, his father purchased the suit property which was comprising of an un-finished ground floor for a valuable consideration of Rs.3,15,000/- through the defendant as Power of Attorney holder. It is further contended that out of the remaining sale consideration received, his father gave Rs.2 lakhs to his wife Smt.Vimala Bai and a sum of Rs.1,05,000/- to the plaintiff by effecting oral partition just before his death in the presence of all the 6 O.S.No.4610/2007 family members. It is further contended that his father had desired that his wife should stay with the defendant till her death and keeping in view the desire and wish of his father the plaintiff, defendant and their mother entered into an oral family arrangement and as per the family arrangement the plaintiff and her mother will not have any right, title or interest in the suit property and similarly the plaintiff shall get a sum of Rs. 2,00,000/-deposited in the name of her mother and after her death, in which the defendant had no right. It is further contended that the said family arrangement took place around 15.09.1990 and later it was reduced into writing on 18.09.1991, at the time of death anniversary of his father.
7. It is further contended that the defendant out of his self earning completed the unfinished portions on the ground floor and later by borrowing loans and out of his personal savings constructed 1st and 2nd floor in the suit schedule property. It is further contended that the defendant was a practicing advocate at Mumbai and thereafter left Mumbai and settled in Bengaluru in the year 1984 and started practicing as an advocate.
7 O.S.No.4610/20078. It is further contended that after the death of his father, the plaintiff and her mother went to the bank Locker at Union Bank, Jayanagar 4th block Branch, Bengaluru and opened the locker belonging to the defendant, without his knowledge and consent and took away gold ornaments and silver articles. It is further contended that as per the family arrangement, the plaintiff was also given 1/3rd share in the share held by his father i.e, 30 shares of Hindustan Lever, Reliance Industries and 40 shares of HAMCO, 40 shares of Mrinal textiles, 20 shares of Nirlon, 24 shares of Tata chemicals, 5 shares of Bombay dyeing, 10 debentures of HAMCO, 10 shares of TISCO interlia the mother of the plaintiff was given shares in 30 shares in Reliance industries, 27 shares of Tata chemicals TISCO shares 100 shares of Pennar Steels ltd., and therefore the said family arrangement was acted upon and as such the plaintiff has no right to claim partition in the suit property.
9. It is further contended that the plaintiff was married to one Dr.Chittaranjan R.Desai on 15.02.1984 and plaintiff was also given gold ornaments and silver articles at the time of her marriage and since then the plaintiff is separated from the family and she has 8 O.S.No.4610/2007 been comfortably living in Mumbai. It is further contended that immediately after the death of mother in 2004, the plaintiff wrote to the defendant that the locker is standing in the name of the mother has to be surrendered and accordingly the defendant sent blank papers to the plaintiff and plaintiff surrendered the locker and took cash, jewelry and other articles from the locker of the mother. It is further contended that the plaintiff has already received her share in the family arrangement and hence she has no right to claim partition and separate possession in the suit property. Therefore, on all these grounds the defendant has sought for dismissal of the suit.
10. On the basis of the rival pleadings and contention, the me learned then predecessor has framed the following issues:
1. Whether defendant proves that he is the absolute owner of the suit schedule property as claimed in para 14 of the written statement?
2. Whether defendant proves that alleged family arrangement between him and his mother and plaintiff during the year 1990 & 1991?9 O.S.No.4610/2007
3. Whether defendant proves that plaintiff's share in the properties left behind by Sri.R.R.Datar is already given to her?
4. Whether defendant proves that the suit schedule property was acquired by her father R.R.Datar?
5. Whether defendant proves that the suit is not properly valued and the court fee paid is insufficient?
6. Whether defendant proves that he has invested money for the construction of building in the suit schedule property with the consent and knowledge of the plaintiff?
7. Whether plaintiff is entitle for a share in the suit schedule property? If so, what is the quantum of her share?
8. Whether plaintiff proves that she is entitled for a share in the rental income from the suit schedule property?
9. What order or decree the parties are entitled to?
Addl. Issue:
1. Whether defendant proves that the plaintiff is specifically excluded from the possession of the suit schedule property?
11. The plaintiff got examined herself as PW1, got marked Ex.P1 to 38 and closed her side. The 10 O.S.No.4610/2007 defendant got examined himself as DW1, his wife Smt.Aruna Datar as DW2 and husband of the plaintiff as DW3 and got marked Ex.D1 to D77 on his behalf and closed his side. During the course of cross examination of PW1 through commissioner Ex.C1 to C34 were marked by confronting to PW1.
12. During the course of arguments the Learned Counsel for the plaintiff vehemently argued that the relationship between the parties is admitted and according to him the suit property is the self acquired property of Late.Ranganatha R.Datar who admittedly died intestate leaving behind his wife and parties to the suit as legal heirs. Much reliance was placed on the contentions taken by the defendant in his written statement as well as evidence of D.W.1 and it was argued that the defendant himself has admitted that the suit property was purchased by his father through him as GPA Holder and in turn sale proceeds was also paid by Late.Ranganatha R.Datar. It was further argued that the entire defence of the defendant is based on Ex.D.11 which is unregistered partition deed, as such does not create absolute title in favor of the defendant and no value should be attached to Ex.D.11. It was further argued that the 11 O.S.No.4610/2007 defendant has contended that he borrowed loan for the purpose of construction of 1st and 2nd floor portions, but admittedly Ex.D11 did not see the light of the day, till it was produced before Court and even the said document was not produced by the defendant before the bank while availing the alleged loan. It was further argued that the evidence placed on record by the defendant is insufficient to prove the execution of Ex.D.11 and that Ex.D.11 was also questioned by the plaintiff by filing Writ Petition before the Hon'ble High Court of Karnataka. It was further argued that the evidence regarding the oral partition is also not believable and that evidence of D.W2 is also silent about signature of plaintiff on Ex.D11. It was further argued that the plaintiff has produced various documents, out of which Ex.P.27 is a material document and contents of Ex.P.27 falsifies the defence of the defendant. The plaintiff is now entitled for ½ share in the suit property as well as mesne profits. In support of his argument he has relied up on the decisions reported in 2011(1)KCCR 314 -Sri.Pilla Muniyappa & others Vs. H.Anjanappa.
12 O.S.No.4610/200713. Repelling the said arguments the Learned Counsel for the defendant also argued at equal vehemence stating that Late. Ranganatha R.Datar purchased only incomplete ground floor through the defendant and that 1st and 2nd floor portion were got constructed by defendant out of his earnings. It was further argued that late.Ranganatha R.Datar had sold his another flat at Mumbai for a valuable consideration of Rs. 6 lakhs out of which Rs.3,15,000/- was paid towards the purchase of the incomplete ground floor portion of the suit property and deceased also handed over Rs.2,00,000/- to his wife and sum of Rs.1,00,000/- to plaintiff towards their share. It was further argued that in the family arrangement the plaintiff , defendant and their mother agreed that the amount of Rs.2,00,000/- allotted to the mother shall go to the plaintiff after her demise and accordingly after the death of mother, the plaintiff also received the aforesaid sum of Rs.2,00,000/- and thereby she has received ½ of her share in the sale proceeds of the flat,. Therefore it was argued that the suit property which was only an unfinished structure was purchased out of the remaining ½ sale proceeds and late.Ranganatha R.Datar himself purchased the property for the sake of the defendant and it was his 13 O.S.No.4610/2007 wish that the defendant shall settle down in Bengaluru, therefore it was argued that the plaintiff now again cannot claim share in the suit property since she has already received ½ share in the sale proceeds of the flat. It was further argued that subsequently parties entered into a Memorandum of partition wherein the earlier partition was reduced into writing under Ex.D.11 and contents of Ex.D11 falsifies the claim of the plaintiff. Much reliance is also placed on the evidence of D.W.3 who is none other than the husband of the plaintiff and it was argued that D.W.3 has also spoken about sale of the flat of late.Ranganatha R.Datar at Mumbai. It was further argued that by virtue of Ex.D.11, the defendant has become the absolute owner of the suit property and thereafter he got constructed the 1st and 2nd floor portion out of his own savings and there was no contribution from the plaintiff towards the said construction. It was further argued that after the death of Ranganatha R.Datar, though khata of the suit property was transferred in the name of his wife Vimala Bai, the said transfer was only nominal and came under the peculiar circumstances. It was further argued that ExP.38 does not confer any right on the plaintiff over the suit property and the plaintiff is once 14 O.S.No.4610/2007 again trying to unlawfully gain the suit property and hence she is not entitled for share and that the suit is also misconceived.
14. The learned counsel Sri.M.S.V., appearing for the defendant relied on the decisions reported in
1) AIR 1976 807 (KALE & OTHERS -VS-
DY.DIRECTOR OF CONSOLIDATION)
2) AIR 1995 SC 1728 (DIGAMBAR ADHAR PATIL -VS- DEVRAM G.PATIL)
3) AIR 2006 SC 2488 ( HARI SHANKAR SINGHANIA - VS- GAUR HARI SINGHANIA)
4) AIR 1990 KERALA 226 (THAYYULLATHIL KUNHIKANNAN -VS- THAYYULLATHIL KALLIANI)
5) AIR 1952 SC 145 (DHIYAN SINGH -VS- JUGAL KISHORE)
6) AIR 1954 SC 82 (SUNDERABAI -VS- DEVAJI DESHPANDE)
7) AIR 1982 KARNATAKA 50 (DB) (SC KONDAREDDY - VS-UNION OF INDIA)
8) AIR 1927 MADRAS 676 (ALPR PERIAKUPPAN CHETTI -VS- RMAR.ARUNACHALAM CHETTI)
9) AIR 1973 MP. 75 (GYARSBAI -VS- JAMNALAL)
10) ILR 1998 KARNATAKA 681 (TUKARAM -VS- SAMBHAJI).
15 O.S.No.4610/200715. Having regard to the material placed on record and arguments heard, my answer to the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the afffirmative
Issue No.5 : In the affirmative
Issue No.6 : In the affirmative
Issue No.7 : In the negative
Issue No.8 : In the negative
Issue No.9 : As per final order
Addl.Issue No.1 : In the affirmative
for the following:
REASONS
16. Issue No.4: Plaintiff has specifically
asserted that the suit schedule property was acquired by her father as such, it was his self acquired property. Defendant in his written statement at para 4 has also contended that his father had a flat at Bombay which was sold for a valuable consideration of Rs.6,03,750/- on 21.12.1989 and out of the said sale proceeds suit schedule property being unfinished ground floor portion was purchased for a valuable consideration of Rs.3,15,000/-. Therefore the defendant has admitted 16 O.S.No.4610/2007 that the suit schedule property was purchased by his father out of sale proceeds received by him.
17. The plaintiff in her evidence has also throughout maintains that suit schedule property was self acquired property of her father. Even the defendant in his evidence as DW1 has admitted that suit schedule property was purchased by his father out of the sale proceeds of the flat sold at Bombay and it was his self acquired property. Therefore the fact that the suit schedule property was purchased by late Ranganatha R.Datar is concerned there is no dispute. Therefore in view of the admitted pleadings as well as evidence of defendant, it can safely be held that the suit schedule property was acquired by late Ranganatha R.Datar as stated by the plaintiff and it was his self acquired property. Hence I record my finding on this issue in the affirmative.
18. Issue Nos.2 & 3 : The defendant has contended that there was a family arrangement in the year 1990 in which plaintiff, defendant and their mother mutually divided the properties left by late Ranganatha R.Datar. According to the defendant, subsequently the said oral family arrangement was 17 O.S.No.4610/2007 reduced in to writing and specific share was given to the plaintiff out of the estate left by late Ranganatha R.Datar. Therefore defendant contends that by virtue of the said family arrangement he invested huge amount out of his personal savings as well as borrowing loan, constructed the 1st & 2nd floor portions in the suit schedule property and he is in exclusive possession and enjoyment of the suit schedule property. Therefore according to the defendant, plaintiff was excluded from the possession of the suit schedule property. But however it is the specific case of the plaintiff that her father late Ranganatha R.Datar died intestate and she has denied the alleged family arrangement and 1990 & 1991. According to plaintiff soon after the death of late Ranganatha R.Datar, katha of the suit schedule property was transferred in the name of his widow and it was continued till filing of the suit. It is also specific case of the plaintiff that there was no division of the suit schedule property by metes and bounds and she being the legal heir of late Ranganatha R.Datar has got equal right in the self acquired property left by her father. With these rival pleadings and contentions, parties have lead oral as well as documents evidence.
18 O.S.No.4610/200719. Plaintiff has got examined herself as PW1 and this PW1 has sworn to affidavit by way of her chief examination which is on par with the allegations made in the plaint. In particular it is the evidence of PW1 that the suit schedule property being self acquired property of her father was jointly inherited by the plaintiff, defendant and their mother and subsequently mother also died intestate and hence she has got equal share in the suit schedule property and she is also in joint possession and enjoyment of the same. In support of her evidence PW1 has got marked various documents as per Ex.P1 to P38. Ex.P1 is the Katha Extract, Ex.P2 to 5 are the copy of legal notice, postal receipt & acknowledgment and UCP. Ex.P6 is the letter issued by Chief Manager, Canara Bank, Yediyur branch, Ex.P7 is the copy of power of attorney, Ex.P8 is the copy of GPA, Ex.P9 to 30 are the statement of loan account, Ex.P33 to 35 are the dairies, Ex.P36 is the note book, Ex.P37 & 38 are the letters dtd.14.2.2003 and 22.3.2003.
20. At this juncture it is necessary to mention that PW1 was cross examined in part before the court on 21.2.2009 and 25.6.2009. Thereafter further cross examination of PW1 was recorded by appointing 19 O.S.No.4610/2007 commissioner. In the cross examination directed to PW1 she pleads ignorance when it was suggested to her that her father sold flat at Bombay for a sum of Rs.6,-3,750/-. She reiterates that her father purchased the suit schedule property on 6.6.1990 out of the amount received from the sale of flat at Bombay. She pleads ignorance about the remaining sale consideration amount received by her father from the sale of flat at Bombay. It is further brought on record that her father was working in private company for about 40 years as a consultant. She admits that her father was also worked at Sharaja in Middle East during 1979-80. She also admits that her father used to write letters to her, her mother and her brother regularly when he was in Sharaja. The defendant has got confronted 38 letters of late Ranganatha R.Datar which PW1 admits as that of her father and all the letters are together marked as Ex.D1. She also admits that her father was also in the habit of writing diaries and used to record significant happenings in the diary. Three diaries were confronted to PW1 and on her admission were marked as Ex.D2 to D4. She also admits that the written portion from 22.1.1990 to 23.1.1990 were in the hand writing of her father and the said portions were marked as Ex.D5 and the 20 O.S.No.4610/2007 entries dtd.7.3.1990 were marked as Ex.D5(a). She admits that the name Ranjan referred in Ex.D5 is that of her husband and admits that under Ex.D5 her father has written that a sum of Rs.25,000/- was paid by him to her husband as loan. She also admits that her father also used to write on plain papers and three separate sheets were confronted and marked as Ex.D6 to D8. And according to her the contents as written in Ex.D5 and D5(a) are repeated in Ex.D6 to D8. She admits that under Ex.D6, her father has paid a sum of Rs.20,000/- to her and similarly under Ex.D7 a sum of Rs.20,000/- is shown as paid to her and her husband. She admits that under Ex.D8 her father has gifted a sum of Rs.50,000/- to her and further admits that under Ex.D8 there is a reference about the deposit made by her father in her name to the extent of Rs.35,000/-.
21. She admits that suit schedule property consists of ground, 1st and 2nd floors and further admits that her father purchased the property under Ex.P14 which was unfinished ground floor. She reiterates that her father completed the construction of ground floor portion and paid money to the contractor. But she is unable to speak about the name 21 O.S.No.4610/2007 of the contractor. In her further cross examination, it is brought on record that one Manjunatha was the contractor who completed the ground floor portion and she has volunteered that on going through her father diaries, she came to now about the name of contractor. It is further brought on record that the construction of 1st floor began in the year 1993-94 and according to her, 1st part of construction of 1st floor was made by utilizing money belonging to her mother. It is also her evidence that her mother sold shares worth Rs.93,000/- and the said amount was used for construction of 1st floor portion. According to her one hall with a toilet and bath room was constructed out of the said amount. It is also brought on record that the 1st floor was constructed for using the same as office and later it was converted in to residential accommodation in 2001. She pleads ignorance that soon after the construction of 1st floor portion defendant shifted his law chamber in the said portion. She further deposes that herself, defendant and their mother jointly raised loan from Canara Bank for the construction of 1st floor portion to the extent of Rs.2 - 3 Lakhs. She is unable to speak about the total cost of construction of 1st floor and speaks ignorance that the loan obtained by defendant was his personal loan. It is 22 O.S.No.4610/2007 elicited from her mouth that she has not contributed any money personally for the construction of 1st floor and admitted that defendant has been paying EMI's towards repayment of the loan raised for the construction of first floor.
22. In her cross examination recorded by the learned court commissioner 18 pages consisting of bills and letters were confronted and marked as Ex.C1 and the witness also admitted the signature of her father at page 15 as Ex.C1(a) and she also admits the handwriting of her father in page 14 & 15 of Ex.C1 and pleads ignorance about the payment made to the contractor under the said document. It is further brought on record that the construction of 2nd floor portion was completed in the year 2003 and she admits that defendant borrowed loan from the bank for construction of 2nd floor portion based on GPA at Ex.P7. She also admits that Ex.P6 to P32 pertains to the loan borrowed by the defendant. According to her bank loan was repaid through the rents and from the suit schedule property and she states that one Jyothna Shivarkar was a tenant for 4 - 5 years and was paying rents of Rs.5000/- and Rs.500/- towards car parking. She further deposed that the said tenant vacated same 23 O.S.No.4610/2007 and other tenant occupied the premises and she pleads ignorance about the name of the tenant. She has further deposed that for the last 3 years one Narasimha is the tenant who is paying rent at the rate of Rs.11,000/- per month and admits that she has no documents to that effect. She admits her mother had bank account at Deena Bank, Andheri, Bombay with a locker facility and according to her she was joint holder of the locker along with defendant. An attempt is made to establish that defendant was not a joint holder of the locker which she has denied. She pleads ignorance about the amount available in the bank account of her mother. It is elicited from her mother that her father had made investment in the name of her mother towards her maintenance along with some fixed deposits. In her further cross examination she admits that her mother received a sum of Rs.1,08,000/- from Unit Trust of India under Ex.D17(a) and it is brought on record that as per Ex.D56 a sum of Rs.1,00,000/- was invested in the name of the mother. She pleads ignorance about the dividend received by her mother and also about the investments in the name of her mother at Ex.D18. She is unable to speak what happened to the said investments after the death of her mother. She further 24 O.S.No.4610/2007 admits that her father had ancestral properties at Bagalkot and a suit in OS.NO.120/1989 was filed which resulted in compromise, in which a sum of Rs.4,98,484/- was awarded towards the share of her father as per Ex.D55. It is brought on record that before the decree was passed, her father died and admits that defendant had sent a sum of Rs.1,50,000/- each to her and her mother through demand drafts. It is her evidence that in December 2005, she gave a sum of Rs.75,000/- to the defendant through DD towards his half share. She admits that during March 2004 she had written letters to the defendant stating that the bank locker in the name of her mother had to be surrendered and thereafter she sent Ex.D16 to the defendant for his signature and after receiving the same surrendered the locker. She pleads ignorance about the contents found in the locker and unable to speak how long bank account of her mother at Deena Bank was operative. An attempt is made to establish that all the shares and debentures inherited from her father were partitioned and she was also allotted her share which she has denied. She also admits that Ex.D12 is in the handwriting of her mother, wherein her mother had expressed intention of handing over her shares to PW1. The original share 25 O.S.No.4610/2007 certificates were confronted and marked at Ex.C2 to C33 and debenture certificate is marked as Ex.C34. She admits that the shares were standing in the name of herself and her mother were not purchased by her. An attempt is made to establish that her father had desired that defendant should settle in Bangalore which she has denied. She denies her signatures in all pages of Ex.D11. Rest of the cross examination directed is by way of suggestions which she has denied.
23. The defendant has got examined himself as DW1 and this DW1 has sworn to affidavit and further affidavit by way of chief examination wherein he has corroborated the contentions taken in his written statement. In particular it is the evidence of DW1 that there was a family arrangement in the year 1990 where, as per the desire of late Ranganatha R.Datar the estate of the deceased was got divided and subsequently it was reduced in to writing in the year 1991. It is also the evidence of DW1 that plaintiff has already taken her share out of the estate left by late Ranganatha R.Datar. Therefore he claims himself as absolute owner of the suit schedule property. In support of his oral evidence he has got marked various 26 O.S.No.4610/2007 documents at Ex.D1 to D77. Out of which Ex.D1 to D8 were confronted and got marked through PW1 in her cross examination. Ex.D1 are 38 letters, Ex.D2 to D4 are Diaries written by plaintiff's father, Ex.D5 are the portion of the diary admitted by PW1, Ex.D5(a) is the Diary for the date 07.03.1990 in the handwriting of PW1, Ex.D6 to D8 are three papers in the handwriting of father of PW1, Ex.D9 is the carbon copy of document of conveyance dated 21.12.1989, Ex.D10 is the notice issued by Income Tax Department to father of DW1, Ex.D11 is the family arrangement deed, Ex.D11(a) is the signature of DW1 on Ex.D11, Ex.D11(b) is the signature of mother of DW1 on Ex.D11, Ex.D11(c) is the signature of plaintiff on Ex.D11, Ex.D11(d) is the signature of wife of DW1 on Ex.D11, Ex.D11(e) is the signature of husband of Plaintiff on Ex.D11, Ex.D12 is the notes prepared by mother of DW1, Ex.D13 is the copy of letter dated 20.10.2002, Ex.D14 is the photocopies of DDs and two original challan counterfoils, Ex.D15is the letter addressed by plaintiff, Ex.D16 is the copy of letter addressed by DW1 to Bank Manager, Ex.D17 is the letter addressed by Unit Trust of India to mother of DW1, Ex.D17(a) & D17(b) are the counterfoils of cheques, Ex.D18 is the Counterfoils of cheque of Unit 27 O.S.No.4610/2007 Trust India dated 1.7.1997, Ex.D19 is the counterfoil of cheque issued LIC, Ex.D20 is the Letter addressed by plaintiff, Ex.D21 is the copy of the letter issued by Canara Bank, Ex.D22 to D25 are the acknowledgements given by the bank, Ex.D26 is the estimate of Chit Wood, Ex.D27 is the notebook containing acknowledgement of payments made to contractor, Ex.D28 to D31 are four letters written by father of DW1, Ex.D32 is the copy of sanction plan, Ex.D33 to D49 are 17 Tax Paid Receipts, Ex.D50 to D52 are three diaries showing the handwriting of mother of DW1, Ex.D53 is the Bank counterfoil, Ex.D54 is the certified copy of decree along with schedule and compromise petition filed under Order 23 Rule 3 CPC in O.S. 120/1989 on the file of I Addl. Civil Judge, Bagalkot, Ex.D55 is the certified copy of Order Sheet of LAC proceedings 16/2000, Ex.D56 is the certificate issued by Unit Trust of India, Ex.D57is the acknowledgement pertaining to Ex.D-56, Ex.D58 is 89 counterfoils of dividend warrants in the name of mother of DW1, Ex.D59 is the counter challan of deposit, Ex.D60 is the acknowledgement pertaining to Ex.D-59. Ex.D61 is 76 counter challans of dividend warrants in respect of Ex.D-60, Ex.D62 is the counter challan of Syndicate Bank to show deposit in the name 28 O.S.No.4610/2007 of mother of DW1, Ex.D63 is the investment receipt in monthly scheme of UTI, Ex.D64 is the letter addressed to DW1 by his father. Ex.D65 is the certified copy of Power of Attorney executed by father of DW1, Ex.D66 is 16 counterfoils of dividend warrants issued in respect of shares and debentures standing in the name of mother of DW1, Ex.D67 is the letter addressed to MCS, Ex.D68 is the letter received by mother of DW1, Ex.D69 is the copy of letter written by mother of DW1 to Madhu Jayanthi, Ex.D70 is three acknowledgements of Aishwarya Enterprises, Ex.D71 is the xerox copy of the cheque showing payment of Rs.5,93,750/- , Ex.D72 is the SB account of father and mother of DW1 in Union Bank, Ex.D73 is the certified copy of the Release Deed dated 17.11.2001 executed by Raghavendra, Uma and Padma in favour of husband of plaint, Ex.D74 is the xerox copy of the letter addressed to the husband of the plaintiff, Ex.D75 is the Postal acknowledgement, Ex.D75(a) is the signature of Dr. Chitharanjan, Ex.D76 is the xerox copy of family arrangement deed, Ex.D77 is the copy of release deed.
24. In the cross examination directed to him, it is brought on record that he completed his law degree 29 O.S.No.4610/2007 in the year 1981 and started his practice at Bombay and thereafter he shifted his practice to Bangalore at the instance of his father. It is further brought on record that he had no clients in Bangalore. At page 9 of the cross examination it is brought on record that he has no documents to show that his father desired that he shall practice at Bangalore. He admits that the flat sold by his father at Bombay was his self acquired property and entire transaction of that flat was looked after by his father. At page 10 of the cross examination it is brought on record that his father had other savings and investments and was an income tax assessee. At page 11 of the cross examination, it is elicited from his mouth that there are no documents in the handwriting of his father to show that he intended to purchase property at Bangalore for him. At page 12 of the cross examination it is brought on record that except the entries found in diaries of his father, there are no documents available to show that his father gave a sum of Rs.1,05,000/- to the plaintiff. At page 13 of the cross examination he reiterates that his father had expressed his intention to transfer the suit schedule property in his name in the year 1990 and with that intention executed GPA in his favour. He admits that one Manjunath was the contractor and 30 O.S.No.4610/2007 took up the renovation work. According to him, about 25,000 to 30,000/- amount was spent towards renovation. He also reiterated about oral partition and further reiterates that the sale proceeds of the Bombay flat was given to his mother and plaintiff as well. It is further brought on record that his father divided the shares and investments among his family members and further reiterates that about 2 or 3 days prior to his death there was a family arrangement. At page 17 of the cross examination it is brought on record that after the death of his father all the shares were divided and some of them were also transferred in the name of plaintiff. At page 18 of the cross examination it is brought on record that all the shares and debentures were not divided as on the date of Ex.D11 and according to him, it was under process and it took around 3 to 4 years for division of shares. The diaries of his father were confronted and marked as Ex.P33 to 35 and two letters at Ex.P37 & 38. It is brought on record that the loan documents do not indicate that he is the sole owner of the suit schedule property and according to him, there was no occasion for declaring his sole ownership. It is further brought on record that he attempted to get revenue records transferred in his named and that the authorities sought for the 31 O.S.No.4610/2007 concurrence of the plaintiff as shown in Ex.P10. An attempt is made to establish that he is collecting rents by letting the suit schedule property which he has denied.
25. In his further cross examination dtd.7.8.2010, an attempt is made to establish that as per Ex.D56 he received a sum of Rs.1,00,000/- invested in Unit Trust of India, which he has denied. According to him, plaintiff has received the said amount. He further denied the receipt of maturity amount shown in Ex.D60 as well as the receipt of amount by his wife and daughter as shown in Ex.D62. At page 27 of the cross examination, it is brought on record that the amount shown in Ex.C2 to 4, 6, 16 to 19 was paid to the share of the plaintiff under Ex.D11. Rest of the cross examination directed is about other litigations as well as disputes relating to the property belonging to the family of plaintiff's husband.
26. The defendant has got marked his wife as DW2 and this DW2 has sworn affidavit by way of her chief examination wherein she has corroborated the evidence of DW1 about the family arrangement as well as right of her husband over the suit schedule 32 O.S.No.4610/2007 property. It is her evidence that she was a witness to Ex.D11 and identified her signature as Ex.D11(d). In the cross examination directed to her, it is brought on record that she got married the defendant on 15.3.1985. At page 5 of her cross examination, she reiterates that the suit schedule property was only a unfinished ground floor portion at the time of purchase and according to her, after demise of her father in law, she along with her husband and daughter and mother in law started residing in the suit schedule property. She pleads ignorance about the sale proceeds received from the sale of flat at Bombay by her father in law. But admits that one month's after sale of Bombay flat her father in law purchased the suit schedule property. At page 11 of the cross examination, she further reiterates that Ex.D11 was came to be executed on 1st death anniversary of her father in law. She has pleaded ignorance about the decision taken while recording Ex.D11 and about the contents of Ex.D11. She reiterates her husband has became the absolute owner of the suit schedule property on the basis of Ex.D11. She pleads ignorance that her mother in law has also had 1/3rd share in the suit schedule property during her life time and so also to the effect that now 33 O.S.No.4610/2007 plaintiff and defendant have got equal share in the suit schedule property.
27. The defendant has got examined Dr. Chittaranjan R.Desai, husband of plaintiff as DW3 and this DW3 was summoned through process of the court to give evidence and to produce the original of Ex.D76. In his chief examination, he has spoken that he is unable to produce the original of Ex.D76. Much of the evidence is lead about the division of the family properties in the family of DW3 as well as the documents at Ex.D73 to 76. He admits his signature on Ex.D75 as Ex.D75(a). At para 4 of his evidence, he deposes that he can identify his signature unless it is old one. He is unable to identify the signature on Ex.D11 which is already marked as Ex.D11(e) and even he has deposed that he cannot identify the signature of his wife. He deposed that Ex.D11 appears to be a family arrangement between the plaintiff and defendant, but according to him, he is not aware of Ex.D11.
28. The defendant has lead his oral evidence through himself and DW3 and has also has produced documents pertaining to the family properties of DW3 34 O.S.No.4610/2007 to establish that there was a dispute regarding family properties in the family of DW3 and subsequently family arrangement took place in which some other properties were allotted in favour of DW3. But on perusal of this evidence as well as the documents, it is noticed that defendant has lead this evidence as well as got marked these documents only to establish that plaintiff got managed to file litigations in the family of her in laws in order to take share of her husband. But in the considered opinion of this court the said oral evidence as well as the documents regarding the said dispute is not at all relevant for the purpose of deciding the controversy in this suit. This is all the oral and documentary evidence placed on record.
29. Before adverting to the other aspects it is necessary to mention some of the admitted facts. It is an admitted fact that plaintiff and defendant are the children of late Ranganatha R.Datar. It is also an admitted fact that late Ranganatha R.Datar had a apartment at Bombay which he sold for a valuable consideration of Rs.6,03,750/- It is an admitted fact that the said apartment was his self acquired property. It is also an admitted fact that out of the sale proceeds, late Ranganatha R.Datar allotted a sum of 35 O.S.No.4610/2007 Rs.2,00,000/- in the name of his wife which was later invested in fixed deposit. It is an admitted fact that out of the remaining sale consideration amount received by late Ranganatha R.Datar, he purchased the suit schedule property under a registered sale deed in his name. It is further an admitted fact that the suit schedule property was a unfinished ground floor portion at the time of purchase and DW1 in his evidence also admits that his late father took up renovation work of ground floor by engaging one contractor by name Manjunath and paid the expenses to him. The diaries written by late Ranganatha R.Datar at Ex.D2 to 4 and portion of diaries at Ex.D5 and handwritten papers at Ex.D6 to 8 which are mainly pertaining to the contractor of late Ranganatha R.Datar towards renovation work are also admitted since these documents were got marked by defendant by confronting to PW1. Four letters in the handwriting of late Ranganatha R.Datar at Ex.D28 to 31 and three diaries in the handwriting of his wife at Ex.D50 to 52 are also not in serious dispute. It is further an admitted fact that subsequently 1st and 2nd floor portions were constructed in the suit schedule property.
36 O.S.No.4610/200730. It is further an admitted fact that late Ranganatha R.Datar and his wife Vimala Bai died intestate leaving behind plaintiff and defendant as the survivors. It is further an admitted fact that late Ranganatha R.Datar had purchased several shares and debentures in his name which were divided among his legal heirs during his life time itself. Therefore the various share certificates and debenture certificates got marked by P.W.1 and DW1 are also not in dispute. But now the entire dispute lingering between the parties is with regard to the suit schedule property. The plaintiff asserts that she has got half share in the suit schedule property. But according to the defendant there was a oral family partition which was subsequently reduced in to writing in Ex.D11 by recording the factum of earlier oral partition and by virtue of oral partition and Ex.D11, suit schedule property was allotted to him exclusively and he got constructed 1st and 2nd floor portions and enjoying the same in his own right as absolute owner there of. Therefore the entire dispute between the parties depends only on the document Ex.D11.
31. Before adverting to the other aspects it is necessary to consider the validity of Ex.D11. As stated 37 O.S.No.4610/2007 supra the defendant has come up with a definite case that Ex.D11 is a family arrangement which was reduced in to writing pursuant to the oral partition that took place on or before 15.9.1990 in pursuance of the desire of late Ranganath R Datar. During the course of argument learned counsel for the plaintiff vehemently argued that this Ex.D11 is an unregistered document as such, same cannot be looked in to and Ex.D11 does not confer any title over the suit schedule property in favour of defendant. It was also argued that plaintiff also objected for marking of this Ex.D11 at the time of evidence and the court observed that the proof of the document will be considered at the time of final hearing. Learned counsel drew the attention of this court to page 4 of the cross examination of DW1 wherein my learned predecessor has made observation to that effect. It was further argued that subsequently the Hon'ble High Court also gave liberty to the plaintiff to raise all objection regarding admissibility of Ex.D11. He further argued that the defendant is claiming absolute right over the suit schedule property on the basis of Ex.D11 and therefore Ex.D11 is a compulsorily registerable document. In support of his argument learned counsel has also relied on the 38 O.S.No.4610/2007 decision reported in 2011(1) KCCR 314. Wherein it is held by the Hon'ble High Court of Karnataka as under:
Sec.17(1)(b) Registration Act, 1908 -Record of family arrangement - registration of, - whether the record of family arrangement herein, need to be compulsorily registered?
- Held, yes - There was an oral arrangement between the parties, several years prior to the execution of the record of family arrangement, whereby the parties had discussed the terms of settlement, and had reduced it in to writing, dividing the properties among themselves, in the nature of partition deed - It was held by the Supreme Court, that a mere agreement to divide did not require registration, but if the writing itself effected a division, it is registerable,in the case of Roshan Singh & others, Vs. Zile Singh and others AIR 1988 SC 881 - Hence, the family arrangement herein, need to be compulsorily registered.
32. Per contra the learned counsel for the defendant drew the attention of the court to the recitals of Ex.D11and vehemently argued that there is no actual division of family properties under Ex.D11 and that the Ex.D11 reveals that it is a record of earlier oral partition which took place on or before 15.9.1990. Therefore it was argued on behalf of the defendant that as Ex.D11 is a record of earlier oral partition, hence it does not require compulsory 39 O.S.No.4610/2007 registration. In support of his argument he has relied on the decisions stated supra.
33. The Hon'ble Supreme Court was also pleased to consider this aspect in a decision reported in (2004)12 SCC 189 - K.G.SHIVALINGAPPA (DEAD) BY LRS., & OTHERS -VS- G.S.ESWARAPPA & OTHERS wherein it is held by Hon'ble Supreme Court as under:
Hindu law - Partition - How can be effected
- Need for registration of partition deed when arises - Held, if partition deed is reduced to writing in a formal document which is intended to be evidence of partition, it would compulsorily have to be registered - However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of Sec.17(1)(b) of the Registration Act, 1908.
34. Further our Hon'ble High Court of Karnataka in a decision reported in ILR 2015 KAR 4715 - VENKATASWAMY & OTHERS -VS- SMT.
ANNEMMA was also pleased to held at head note B & D as under:
A document which does not itself create a partition of property but merely recites a previous arrangement can always be 40 O.S.No.4610/2007 admitted in evidence to prove the arrangement.
Where a perusal of the document itself shows that it does not profess to be anything more than an acknowledgement that the partition had been effected back, it does not create any right in any property and its registration was not compulsory. - But once it is held that a partition document has created title and interest of the parties in the property in dispute for the first time, then such writing/settlement would require registration under the provisions of Sec.17(2) of the Act. Non- registration of this document would be hit by bar of Sec.17 of the Act and would be inadmissible in evidence. - Therefore, a document which, by itself effects a partition and is signed by the parties and witnesses, in order to be binding on the parties as a deed of partition and to be the evidence of the terms of the partition requires registration. Such a document comes within the purview of Sec.17(1)(b) of the Act inasmuch as that document creates, declares, assigns, limits or extinguishes any right, title or interest in immovable property
- Registration Act, 1908 - Sec.17(2) and 17(1)(b) - discussed.
I have perused the ratio laid down in the above authorities which is to the effect that if under a document actual partition is effected and shares are allotted to the parties, the said document of partition requires compulsory registration and if the document 41 O.S.No.4610/2007 did not evidenced by any partition by metes and bounds it would be outside the purview of Sec.17(1)(b) of Registration Act 1908. With these principles in my mind, let me consider whether any actual partition is effected under Ex.D11 or not and that whether Ex.D11 requires compulsory registration.
35. As stated supra, the defendant in his written statement has contended that his father just 2 or 3 days prior to his death had desired to have settle the family properties among the members of his family. It is also the case of the defendant that subsequently on or before 15.9.1990, himself, his mother and sister effected oral partition in order to give effect to the desire of late Ranganath R Datar. It is the definite case of the defendant that his father had desired that the defendant shall settle down at Bangalore in the suit schedule property and was desirous of giving the suit schedule property to him. DW1 in his evidence also throughout maintains that on or before 15.9.1990 himself, his mother and sister effected oral partition wherein they also gave effect to the desire of late Ranganath R Datar by agreeing that suit schedule property shall go to the defendant.
42 O.S.No.4610/200736. DW1 in his evidence has also spoken that at the time of first death anniversary of late Ranganath R Datar, the family thought of reducing the said oral family partition in writing and accordingly Ex.D11 came in to existence. At this juncture if Ex.D11 is perused, the nomenclature given to this document as family arrangement which is dtd.18.9.1991. At para 3 of this document it is recited that the parties in order to maintain amity, goodwill and harmony in the family and with a view to avoid future disputes and litigations with regard to the other family properties consented by all. It is also recited that the said family arrangement was arrived after due discussions and after the death of late Ranganath R Datar on or before 15.9.1990 and since then has been fully accepted. It is further recited that as family arrangement was oral one, it is now considered necessary and expedient to have a written record of the family arrangement. At page 2 of this Ex.D11, it is also recited that it was the wish and desire of late Ranganath R Datar that the defendant shall settle down at Bangalore and he was to be given suit schedule property with exclusive possession. At page 4 of Ex.D11, it is also recited that in terms of pious wish and desire of late Ranganath R Datar, defendant who is in exclusive possession of the suit 43 O.S.No.4610/2007 schedule property as per oral family arrangement and that the mother and plaintiff will have no right or title and interest in the said house.
37. On careful perusal of all these important recitals in Ex.D11, it is apparently clear that parties to this Ex.D11 have recorded the earlier oral family partition that took place on or before 15.9.1990 as per the desire and wish of late Ranganath R Datar and there is no actual division in family properties by metes and bounds under Ex.D11 between the parties. There is no right, title or interest over any immovable property created under Ex.D11 in favour of any of the parties to the document. As stated supra, plaintiff has also not chosen to effectively cross examine DW1 bout this Ex.D11 and in her evidence she has simply denied the execution of Ex.D11 as well as signature on Ex.D11. Be that as it may. But the fact remains that there is no actual division of property effected under this Ex.D11, therefore the ratio laid down in the above authorities to the effect that if there is no actual division of family properties by metes and bounds under family arrangement document, the said document is not compulsorily registrable are also amply applicable to the case on hand. Therefore in the 44 O.S.No.4610/2007 considered opinion of this court, Ex.D11 is not a deed of partition where actual partition is affected. But it is only a record of earlier family arrangement and same does not requires compulsory registration.
38. Interestingly the plaintiff has denied the alleged family partition and subsequently family arrangement under Ex.D11 in her evidence. But as defendant has come up with this specific defense, therefore burden lies on him to establish the alleged family partition as well as Ex.D11. Once the defendant discharges his initial burden, onus shifts on the plaintiff to disprove the same.
39. As stated supra, defendant has got examined himself as DW1 and in his evidence he throughout maintains that his father just 2 or 3 days prior to his death expressed his desire that the suit schedule property to be given to him and it is the definite case of the defendant that immediately after the death of his father, himself and his mother and plaintiff had orally partitioned properties among themselves. Interestingly, in the cross examination directed to DW1, nothing worth is elicited from his mouth so as to disbelieve his evidence. DW1 has 45 O.S.No.4610/2007 admitted that he has no documents about the oral family partition, but according to him, it is on the first death anniversary of the father Ex.D11 was came to be executed by all the family members. At this juncture it is necessary to mention that according to the defendant oral family partition took place between plaintiff, defendant and his mother and admittedly the mother also died and except the evidence of plaintiff and defendant, we do not have any other evidence before the court relating to the alleged oral family partition. But however, during the course of argument learned counsel for the defendant placed much reliance on Ex.D11 and argued that Ex.D11 itself establishes factum of earlier oral partition and plaintiff being a signatory to Ex.D11 has simply denied the said document.
40. On careful perusal of Ex.D11, it is also noticed that there is reference about the alleged oral family partition soon after the death of father. This document was though admitted in evidence with objection, but it is pertinent to note that there is no cross examination directed on behalf of the plaintiff to DW1 to establish that the said recitals relating to the alleged oral family partition in Ex.D11 are incorrect.
46 O.S.No.4610/2007The plaintiff for the reasons best known to her has not chosen to cross examine on this aspect to DW1. But however in her cross examination, PW1 has denied the alleged oral family partition as well as Ex.D11. But except bare denial, there is nothing worth placed on record by the plaintiff to establish that there was no oral family partition. Therefore in the absence of any effective cross examination on this important aspect on behalf of the plaintiff, an inference has to be drawn to the effect that the plaintiff has not seriously disputed about the oral family partition as contended by the Ex.D11. The evidence of DW1 coupled with the contents of Ex.D11 supports the defense taken by the defendant and probabilises his defense than the case of the plaintiff. This is one aspect of the case.
41. According to the defendant there was a dispute relating to the family properties in the family of DW3 in which subsequently family arrangement took place and he prepared Ex.D11, on the basis of the copy of the family arrangement relating to the family of DW3. According to the defendant Ex.D11 was prepared and executed by all the family members in the presence of his wife DW2 and the husband of plaintiff as DW3.
47 O.S.No.4610/200742. DW2 being the wife of defendant has supported his case stating that Ex.D11 was executed by all the family members in her presence. She has also identified her signature on Ex.D11 as per Ex.D11(d). In her cross examination she has pleaded ignorance about the contents of Ex.D11. But her evidence to the extent that Ex.D11 was prepared and executed in her presence is not seriously disputed on behalf of the plaintiff. Therefore merely because she is not aware of the contents of Ex.D11, her evidence regarding execution of Ex.D11 cannot be disbelieved. Moreover the presence of DW2 at the time of execution of Ex.D11 is not disputed on behalf of the plaintiff
43. As stated supra defendant has also got examined husband of plaintiff as DW3 and this DW3 is a doctor by profession and in his chief examination at para 4, he deposes that he can identify his signature unless it is old one and his signature which is already got marked by the defendant as Ex.D11(e) was confronted to him and he deposed that he is not sure whether the signature at Ex.D11(e) is his signature. In the same paragraph he has also deposed that he cannot identify the signature of his wife. But according to him, Ex.D11 appears to be a family arrangement 48 O.S.No.4610/2007 between the plaintiff and defendant and that he is not aware of the said document. He also pleads ignorance that Ex.D11 pertains to the property of his father in law. Interestingly, there is no cross examination directed on behalf of the plaintiff to this DW3. Therefore the evidence of DW3 to the effect that Ex.D11 is family arrangement between the plaintiff and defendant has remained unchallenged and uncontraverted. But surprisingly this DW3 has not only expressed doubt about his signature at Ex.D11(e), but has gone to the extent of deposing that he cannot identify the signature of his wife also. At this juncture if the cross examination of PW1 at page 21 is perused, this PW1 has admitted her signature on Ex.P7, but has denied her signature on Ex.D11. She ahs also denied the signature of her mother on Ex.D11. But all the signatures of the parties to this Ex.D11 as well as witnesses were marked in the evidence of DW1. But surprisingly there is no cross examination directed to DW1 on behalf of the plaintiff disputing her signature on Ex.D11. Therefore if the evidence of PW1 & DW3 is perused, they being the wife and husband have simply denied their signatures on Ex.D11. As stated supra, plaintiff has admitted her signature on Ex.P7 and this court has got power to compare the admitted and 49 O.S.No.4610/2007 disputed signatures of plaintiff found in her plaint, Ex.P7 along with Ex.D11 u/s.73 of Indian Evidence Act. On bare comparison of signature of plaintiff on all these documents clearly establishes that they are one and the same. Even otherwise, if the plaintiff has not signed Ex.D11 and disputes the genuineness of her signatures, she would have sought for referring the said signatures for opinion of the experts to disprove the contention taken by the defendant. What prevented the plaintiff from doing so is not made clear. Therefore Ex.D11 coupled with the evidence of DW1 & 3 in particular establishes the factum of execution of Ex.D11 by the plaintiff, her mother and defendant. In the absence of any specific cross examination about her signature on Ex.D11, it can safely be inferred that the plaintiff has simply denied her signature on Ex.D11 only for the sake of denial. Therefore in the considered opinion of this court, defendant has discharged his burden by placing cogent and convincing evidence before the court regarding execution of Ex.D11 by the plaintiff and his mother along with him.
44. The defendant has contended that plaintiff was also given a sum of Rs.1,05,000/- out of the sale 50 O.S.No.4610/2007 consideration of Bombay flat and a sum of Rs.2Lakhs was also invested in the name of his mother out of sale proceeds. DW1 in his evidence has spoken to that effect and during the course of cross examination of PW1, the defendant has got marked Ex.D6 to D8 by confronting to her. On perusal of Ex.D6 to D8 it is noticed that late Ranganatha R.Datar has paid a sum of Rs.20,000/- in favour of plaintiff on 31.1.1990, a sum of Rs.20,000/- was paid on 21.9.1990 under Ex.D7 and under Ex.D8 there are two entries in which a sum of Rs.35,000/- is shown as deposited on plaintiff and a sum of Rs.50,000/- is shown as deposited to plaintiff. As stated supra Ex.D6 to 8 are confronted and got marked through PW1 on her admission therefore the contents of Ex.D6 to Ex.D8 are binding on the plaintiff and these documents clinchingly establishes payment of money in favour of plaintiff in January 1990 and March 1990. At this juncture it is necessary to mention that late Ranganatha R.Datar admittedly sold Bombay flat on 21.12.1989 and the amount paid under Ex.D6 to D8 are within three months from the date of sale. Therefore the evidence of DW1 that this amount was paid out of sale proceeds of Bombay flat will have to be accepted.
51 O.S.No.4610/200745. Defendant has also contended that a sum of Rs.2 Lakhs was also invested in the name of mother. To substantiate his contention, defendant has got marked Ex.D17, 17(a) & (b), 18, & 19. On perusal of Ex.D17(b) it is noticed that a sum of Rs.1,08,000/- is shown as matured amount, under Ex.d18 & 19 a sum of Rs.50,000/- each was invested in the name of the mother. No doubt under these document date of maturity is shown but the date of investment is not shown. However the fact remains that a sum of Rs.2 Lakhs was invested in the name of mother under these documents. Therefore these documents also supports the defense taken by defendant to the effect that mother was also given a sum of Rs.2 Lakhs out of the sale proceeds of Bombay flat. Defendant has further contended that as per the terms of Ex.D11 as well as previous family arrangement, it was agreed that the amount of Rs.2Lakhs shall go to the plaintiff after the demise of the mother and the defendant shall have no right over the said investment. Similar contents are also found at Ex.D11 at page 3. Therefore the recitals of Ex.D11 along with Ex.D17 to 19 establishes that plaintiff was not only gave a sum of Rs.1,05,000/- but also a right was created in her favour to receive the entire amount of Rs.2 Lakhs invested in the name of 52 O.S.No.4610/2007 mother after her death. At this juncture, it is necessary to mention at the cost of repetition that Bombay flat was sold for a valuable consideration of Rs.6,03,750/- and the plaintiff was given a sum of Rs.1,05,000/- and her right was also created even on a sum of Rs.2 Lakhs invested in the name of mother and these two amounts constitutes almost half of the sale consideration received by late Ranganatha R.Datar out of Bombay flat and admittedly suit schedule property was purchased for a valuable consideration of Rs.3,15,000/- which again constitutes remaining half portion of sale proceeds. Therefore considering the facts and circumstances, the defense taken by the defendant about share already given to the plaintiff out of estate of late Ranganatha R.Datar appears to be more probable.
46. But however learned counsel for the plaintiff very much relied on the contents of Ex.P38 which is admittedly a letter written by defendant to the plaintiff and he drew the attention of this court to page 4 of Ex.P38 and argued that defendant himself has written that the suit house is family house and belongs to all of them. On perusal of this Ex.P38 it is noticed that the defendant has informed plaintiff about the same.
53 O.S.No.4610/2007But if the entire para 5 of the Ex.P38 is perused, this statement made apparently by the defendant by mentioning about the desire of his father who believed in unity and oneness of the family. Therefore simply on the basis of statement of the defendant stating that entire house belongs to all of them will not taken away effect of Ex.D11. As stated supra plaintiff has denied the entire defense of the defendant but has not come forward with any cogent evidence before court and entire material placed on record clinchingly establishes the fact of oral partition of the year 1990 as well as Ex.D11. Hence I record my finding on issue No.2 & 3 in the affirmative.
47. Issue No.1, 6 & Addl.Issue: Defendant has contended that he became the absolute owner of the suit schedule property and according to him he has invested huge amount for the construction of 1st and 2nd floor portions. It is also the defense of the defendant that plaintiff was excluded from the possession of the suit schedule property. But however plaintiff has contended that the suit schedule property is self acquired property of her father and equally devolved on her and hence she has got equal right and as well as possession and enjoyment of the same. DW1 54 O.S.No.4610/2007 has also spoken to the effect and in view of my finding on issue Nos.2 & 3 it can safely be held that the defendant has acquired title over the suit schedule property by virtue of oral partition which was subsequently reduced in to writing under Ex.D11.
48. The defendant in order to establish that he invested huge amount towards construction of 1st and 2nd floor portions, has relied on his evidence in which he throughout maintains that he borrowed loan from the banks and constructed 1st and 2nd floor portions. In support of his evidence, defendant has also got marked the documents relating to the loan transaction at Ex.D21 to 25 which establishes the loan borrowed by him for the construction of 1st and 2nd floor portions. It has come in the evidence that 1st floor portion was constructed in the year 1994 and 2nd floor portion was constructed in the year 2004. At this juncture if the evidence of PW1 is perused, she has reiterated that the loan was borrowed jointly by her and executed GPA in favour of defendant. But surprisingly there is no pleading or evidence on behalf of the plaintiff to show what was the loan borrowed by the defendant and source of repayment of the loan. But in her evidence she has spoken that 1st floor 55 O.S.No.4610/2007 portion was let out in favour of some tenant and initially defendant was receiving Rs.5000/- as rent per month and thereafter subsequently receiving a sum of Rs.11,000/- per month as rent and therefore she has stated that defendant was repaying the loan only through the rent received from the house property. But the defendant has contended that he has occupied the entire house and even he has established his law chamber in the suit schedule property. But however PW1 at page 10 of her cross examination categorically deposes that she has not paid any amount personally towards the construction of 1st and 2nd floor portions and she has also admitted that defendant was paying EMI pertaining to the loan for the construction of 1st floor. Therefore this part of the evidence of PW1 supports the defense taken by the defendant. Admittedly plaintiff has not produced any materials to show who are the tenants in the suit house and she has not chosen to examine those tenants to establish the income from the suit schedule property. Therefore in the absence of any proof to that effect, it is highly difficult to believe that plaintiff was also a joint borrower of the loan as spoken by her. On the other hand, entire material placed on record by the defendant establishes that the loan was borrowed by 56 O.S.No.4610/2007 him in his name and when plaintiff herself says that she has not contributed any money towards repayment of loan, then the evidence of defendant has to be accepted that he himself cleared the loan amount. Therefore the evidence of defendant that he invested huge amount towards construction of 1st and 2nd floor has to be accepted. Accordingly I have no hesitation to hold that defendant himself got constructed 1st and 2nd floor portions at his cost.
49. Defendant has further contended that plaintiff was excluded from the possession of the suit schedule property. The main defense of the defendant is based on Ex.D11 which reveals that plaintiff and her mother have agreed in the oral partition about the right of the defendant over the suit schedule property. The defendant himself got constructed the 1st and 2nd floor portions and admittedly he is residing in the suit schedule property ever since from the date of purchase by his father. By virtue of Ex.D11 and oral partition, plaintiff has lost her right in the suit schedule property and that being so, it is difficult to believe that she continued to be in possession and enjoyment of the suit schedule property. Therefore case of the defendant that plaintiff was excluded from the possession and 57 O.S.No.4610/2007 enjoyment of the suit schedule property will have to be accepted. Hence I record my findings on Issue Nos.1 & 6 and Addl.Issue in the affirmative.
50. Issue No.5: The defendant has contended that suit is not properly valued for the purpose of court fee and that the court fee paid is insufficient. This court has already come to the conclusion that plaintiff was excluded from the possession of the suit schedule property by virtue of oral partition as well as Ex.D11 and admittedly suit was filed in the year 2007. Therefore the case of the plaintiff that as on the date of suit she was in joint possession and enjoyment cannot be accepted. Since the plaintiff is out of possession, she ought to have valued the suit on the basis of market value of the property. In view of my finding on Addl. Issue, this issue has to be held holding that the valuation of the suit and court fee paid in insufficient. Hence I record my finding on this issue in the affirmative.
51. Issue No.7 & 8: Plaintiff has failed to prove her right in the suit schedule property as such she is not entitled for the relief claimed and as such I answer these issues in the negative.
58 O.S.No.4610/200752. Issue No.9: For the foregoing reasons and the circumstances the suit of the plaintiff fails and liable to be dismissed. In the result I proceed to pass the following:
ORDER Suit of the plaintiff is hereby dismissed. Considering the long standing relationship between the parties they are directed to bear their own costs.
Draw decree accordingly.
[Dictated to the Judgment Writer on computer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 24th September 2016].
(MUSTAFA HUSSAIN.S.A.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE ANNEXURE
1. No. of witnesses examined on behalf of plaintiffs:
PW1 :Smt.Rohini Rani C.Desai
2.No. of documents marked on behalf of plaintiffs:
Ex.P1 :Katha Extract Ex.P2 to 5 :Copy of legal notice, postal receipt & acknowledgment and UCP 59 O.S.No.4610/2007 Ex.P6 :Letter issued by Chief Manager, Canara Bank, Yediyur branch Ex.P7 :Copy of power of attorney Ex.P8 :Copy of GPA submitted by defendant Ex.P9 to 30:Statement of loan account Ex.P33 to 35:Dairies Ex.P36 :Note Book Ex.P37 :Letter dtd.14.2.2003 Ex.P38 :Letter dtd.22.3.2003.
3. No. of witnesses examined on behalf of defendant:
DW1 :Vilas R Desai DW2 :Smt.Aruna Datar DW3 :Dr.Chittaranjan R Desai 4. No. of documents marked on behalf of defendants: Ex.D1 :38 letters
Ex.D2 to D4:Diaries written by PW-1's father Ex.D5 :Portion of the diary admitted by PW1 Ex.D5(a :Diary for the date 07.03.1990 in the handwriting of PW1 Ex.D6 to P8:Three papers in the handwriting of father of PW1 Ex.D9 :Carbon copy of document of conveyance dated 21.12.1989 Ex.D10 :Notice issued by Income Tax Department to father of DW1 Ex.D11 :Family arrangement deed Ex.D11(a) :Signature of DW1 on Ex.D11 Ex.D11(b) :Signature of mother of DW1 on Ex.D11 Ex.D11(c) :Signature of plaintiff on Ex.D11 Ex.D11(d) :Signature of wife of DW1 on Ex.D11 Ex.D11(e) :Signature of husband of Plaintiff on Ex.D11 Ex.D12 :Notes prepared by mother of DW1 60 O.S.No.4610/2007 Ex.D13 :Copy of letter dated 20.10.2002 Ex.D14 :Photocopies of DDs and two original challan counterfoils Ex.D15 :Letter addressed by plaintiff Ex.D16 :Copy of letter addressed by DW1 to Bank Manager Ex.D17 :Letter addressed by Unit Trust of India to mother of DW1 Ex.D17(a) & D17(b):Counterfoils of cheques Ex.D18 :Counterfoils of cheque of Unit Trust India dated 1.7.1997 Ex.D19 :Counterfoil of cheque issued LIC Ex.D20 :Letter addressed by plaintiff Ex.D21 :Copy of the letter issued by Canara Bank Ex.D22 to D25:Acknowledgements given by the bank Ex.D26 :Estimate of Chit Wood Ex.D27 :Notebook containing acknowledgement of payments made to contractor Ex.D28 to D31:Four letters written by father of DW1 Ex.D32 :Copy of sanction plan Ex.D33 to D49:17 Tax Paid Receipts Ex.D50 to D52:Three diaries showing the handwriting of mother of DW1 Ex.D53 :Bank counterfoil Ex.D54 :Certified copy of decree along with schedule and compromise petition filed under Order 23 Rule 3 CPC in O.S. 120/1989 on the file of I Addl. Civil Judge, Bagalkot Ex.D55 :Certified copy of Order Sheet of LAC proceedings 16/2000 Ex.D56 :Certificate issued by Unit Trust of India Ex.D57 :Acknowledgement pertaining to Ex.D-56 Ex.D58 : 89 counterfoils of dividend warrants in the name of mother of DW1 Ex.D59 :Counter challan of deposit Ex.D60 :Acknowledgement pertaining to Ex.D-59 Ex.D61 :76 counter challans of dividend warrants in respect of Ex.D-60 61 O.S.No.4610/2007 Ex.D62 :Counter challan of Syndicate Bank to show deposit in the name of mother of DW1 Ex.D63 :Investment receipt in monthly scheme of UTI Ex.D64 :A letter addressed to DW1 by his father.
Ex.D65 :Certified copy of Power of Attorney executed by father of DW1 Ex.D66 :16 counterfoils of dividend warrants issued in respect of shares and debentures standing in the name of mother of DW1 Ex.D67 :Addressed letter to MCS Ex.D68 :A letter received by mother of DW1 Ex.D69 : Copy of letter written by mother of DW1 to Madhu Jayanthi Ex.D70 :3 acknowledgements of Aishwarya Enterprises Ex.D71 :Xerox copy of the cheque showing payment of Rs.5,93,750/-
Ex.D72 :SB account of father and mother of DW1 in Union Bank Ex.D73 :Certified copy of the Release Deed dated 17.11.2001 executed by Raghavendra, Uma and Padma in favour of husband of plaint Ex.D74 :Xerox copy of the letter addressed to the husband of the plaintiff Ex.D75 :Postal acknowledgement Ex.D75(a) :Signature of Dr. Chitharanjan Ex.D76 :Xerox copy of family arrangement deed Ex.D77 : Copy of release deed.
5. No. of documents marked on behalf of defendants through court commissioner:
Ex.C1 : Bills and letter containing 18 pages Ex.C2 to 33: Share certificates Ex.C34 : Debenture XVIII Addl. City Civil Judge Bangalore City.62 O.S.No.4610/2007
Judgment pronounced in the open court as per separate judgment. Operative portion of judgment is as follows:
ORDER Suit of the plaintiff is hereby dismissed. Considering the long standing relationship between the parties they are directed to bear their own costs Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore