Karnataka High Court
Siddanna S/O Peerappa Biradar vs Smt.Ambubai @ Jagadevi W/O Siddanna ... on 29 August, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
MFA No.30160/2013 (FC)
BETWEEN:
SIDDANNA S/O PEERAPPA BIRADAR
AGE : 54 YEARS, OCCU : AGRICULTURE
R/O YELAWANTAGI (K),
PATTAN REVENUE CIRCLE,
TQ. & DIST. GULBARGA - 585 102.
...APPELLANT
(BY SRI. AMEETKUMAR DESHPANDE, ADVOCATE)
AND:
SMT. AMBUBAI @ JAGADEVI
W/O SIDDANNA HADGIL BIRADAR
AGE : 51 YEARS, OCC : HOUSEWIFE
R/O H.NO.2-398, JAGAT,
UPPER LANE, GULBARGA - 585 102.
...RESPONDENT
(BY SRI. KALYANI B. BIRADAR, ADVOCATE)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 19(1) OF FAMILY COURT ACT AGAINST
THE JUDGMENT AND DECREE DATED 15.12.2012
PASSED IN O.S.NO.30/2012 ON THE FILE OF THE
DISTRICT JUDGE, FAMILY COURT, GULBARGA,
WHEREIN DECREED THE SUIT OF
PLAINTIFF/APPELLANT.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 02.08.2018 COMING
ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the judgment and decree passed by the Family Court, Gulbarga in O.S.No.30/2012. The trial Court has decreed the suit declaring the plaintiff as the owner of the suit schedule property i.e. the land in sy.no.84/1 measuring 4-acres 4-guntas and in sy.no.84/2 measuring 1-acre both situated at village Yelavantgi-K, Tq. & District Gulbarga and the trial Court has set aside the revenue entries by 3 virtue of the Mutation Order MR 21/2010-2011 dated :
6.7.2011 and also granted permanent injunction restraining the defendant from alienating the suit lands.
The above said judgment and decree has been challenged before this Court on various grounds which we will discuss little later.
2. Before adverting to the grounds of appeal raised by the defendant against the judgment and decree passed by the trial Court, we would like to narrate briefly the factual matrix of this case. We would like to retain the ranks of the parties as per their ranks before the trial Court in order to avoid confusion and repetition of facts.
3. The plaintiff - Smt.Ambubai @ Jagadevi has filed a suit before the trial Court for the following reliefs :-
i) Plaintiff be declared as owner of suit properties Sy.No.84/1 measuring 4 acres 4 guntas with R.A. of Rs.7-25 Ps. situated at village Yelawantagi (K) and Sy. No.84/2 measuring 4 1 acre, situated at village Yelawantagi (K), Tq.
and Dist: Gulbarga by the alteration and cancellation of MR No.21/2010-11, mutation sanction order dt: 6-7-2011 and the subsequent entries in all the revenue registers and also in the revenue records.
ii) The defendant be perpetually restrained from alienating in any mode at any point of time to anybody by way of sale, mortgage, gift deed, will deed etc.
iii) Any other relief which the Hon'ble Court deems fit in the eye of law may kindly be awarded to the Plaintiff including the cost of the proceedings, in the interest of justice.
4. In order to claim the above said prayers, the plaintiff has pleaded that she is the wife of the defendant. Their marriage took place about 35 years ago and they begot five female and one male child. It is the further case of the plaintiff that, due to family disputes, in the year 2009 the defendant has became vagabond, not taking care of the family needs and the defendant separated from the plaintiff and her children in the year 2009 and that, he 5 was also addicted to alcohol and other bad vices. The plaintiff being sole daughter to her parents, she succeeded to house site of her late father bearing No.2-398, measuring 1692 square feet situated at Jagat Upper Lane, Gulbarga. Out of stridhana property and the income earned by her parents from their business, i.e. diary business and rental income, the plaintiff purchased suit schedule - A property, i.e. land sy.no.84/1 measuring 4-acres 4-guntas and sy.no.84/2 measuring 1-Acre of village Yelawantagi (K), Tq. & Dist.Gulbarga under two registered sale deeds dated : 15.6.1998 and 5.3.1999 respectively. From the date of purchase, the mutation entries have been made out in the name of the plaintiff and she has been in possession and enjoyment of the said lands. When the facts stand thus, the plaintiff came to know that in the year 2012, on the basis of a fraudulent application along with some fraudulent documents, the defendant made an application for change of mutation entries into his name vide application dated : 19.5.2011. 6 The plaintiff came to know about the same on 11.5.2012. Taking advantage of the change of entries in the revenue records, the defendant has made attempts to sell the suit schedule property to third parties in order to defeat and defraud the rights of the plaintiff. Therefore, she was forced to file the suit, contending that, the defendant has no right, title, interest or possession over the suit schedule property and has no right whatsoever. Therefore, the plaintiff prayed for decreeing the suit.
5. The defendant who entered appearance has filed his written statement denying all the allegations made in the plaint, except admitting the relationship between the parties. He denied that, he had separated from the plaintiff in the year 2009 and addicted to bad vices and he became vagabond and not taking care of any responsibility. Further the defendant has also admitted that the plaintiff is the sole daughter of her parents but he denied that she has got any source of income from her 7 parental home and he has also denied that she has independent income to purchase the property. He also denied the business of the parents of the plaintiff and he claims that, he actually constructed a house in open plot in property bearing No.2-398 measuring 1692 square feet situated at Jagat Upper Lane, Gulbarga and he is the absolute owner of the said property.
6. It is the specific case of the defendant that he has actually purchased the suit schedule properties i.e. landed properties by paying the consideration amount in the name of the plaintiff. Though it was purchased in the name of the plaintiff, he has been in possession and enjoyment of the said lands. The lands have been got mutated in the name of the plaintiff at the earlier stage but subsequently, plaintiff gave her consent and letters like "Varadi" to the revenue authorities voluntarily for changing the revenue entries in the name of the defendant. Therefore, he denied that he got mutated his 8 name by submitting any fraudulent application or false documents to get the properties into his name. He also denied that, he made any attempt to alienate the property at any point of time.
7. Apart from taking the above defence, the defendant has also taken up the contention that, the Family Court has no jurisdiction to entertain the suit and plaintiff has no right or interest over the suit property, as such suit of the plaintiff is liable to be dismissed.
8. On the basis of the above rival contentions of the parties in their pleadings, the trial Court has proceeded to frame the following :-
ISSUES :-
1) Whether the plaintiff proves that she is the owner of the suit property ?
2) Whether the plaintiff further proves that Mutation sanction order dated 6.7.2011 passed in M.R. 21/2010-2011 is illegal ? 9
3) Whether plaintiff further proves that defendant is trying to alienate the suit property ?
4) Whether this Court has jurisdiction to entertain the suit ?
5) Whether the plaintiff is entitled to the reliefs of declaration, injunction and correction of revenue records ?
6) What decree or order ?
9. The plaintiff got examined herself as P.W.1 and also examined three witnesses on her side as P.Ws.2 to 4 and got marked Ex.P-1 to Ex.P-54. The defendant has examined himself as D.W.1 and two witnesses as D.Ws.2 and 3 and did not produce and got marked any documents on his side. Out of the above said witnesses, D.W.3 though examined in chief, was not available for cross examination. Therefore, the evidence of D.W.3 was eschewed from consideration by the trial Court.
10. After appreciating the oral and documentary evidence on record, by giving reasons, the trial Court has given findings on Issue Nos.1 to 5 in the Affirmative and 10 decreed the suit of the plaintiff as prayed for, against which, the present appeal is preferred.
11. The appellant - defendant has raised various grounds seeking setting aside the abovesaid judgment and decree passed by the trial Court.
12. Briefly stated, the grounds are as follows :-
i) The trial Court has not framed proper issues.
The trial Court ought to have framed an issue to the effect as to "Whether the consideration amount for the purchase of the agricultural land sy.no.84/1 and 84/2 is paid by the plaintiff or the defendant?" .
In the absence of such issue, the trial Court could have not have disposed of the suit.
Therefore, the judgment and decree passed by the trial Court is bad in the eye of law.
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ii) It is further contended that, the findings on Issue Nos.1, 2 and 3 are incorrect and is the outcome of improper appreciation of evidence on record.
iii) The trial Court has not properly appreciated the evidence of D.W.2 who has categorically stated about the consideration amount paid by the defendant for purchase of the suit lands.
iv) The trial Court has not appreciated the oral and documentary evidence and failed to hold that the plaintiff had no source of income and there was no existence of stridhana property nor the plaintiff's father had any business or any source of income to help the plaintiff to purchase the suit schedule property.
v) It is also further contended that, no sufficient opportunity was given to the defendant to prove the witnesses on behalf of the defendant. Hence decree is liable to be set aside.
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13. We have heard the arguments of the learned counsel for the appellant/defendant and as well as the respondent/plaintiff. We have also carefully perused the pleadings of the parties, oral and documentary evidence produced by the respective parties and also the judgment of the trial Court. We have carefully re-appreciated the entire material evidence on record.
14. On overall analysis of the material on record, the following points arise for consideration of this Court :-
1) Whether the plaintiff has proved that, she is the absolute owner in possession and enjoyment of the suit schedule property?
2) Whether the defendant has established that he has purchased the suit property by paying consideration amount in the name of the plaintiff?13
3) Whether the trial Court has committed any serious legal error in framing the issues and answering Issue Nos.1 to 3 in a wrong manner ?
4) Whether the trial Court has got jurisdiction to entertain the suit, and whether no sufficient opportunity was provided to the defendant. to prove his case.
5) Whether the trial Court has committed any serious error in appreciating the oral and documentary evidence on record in decreeing the suit of the plaintiff ?
POINT NO. 4 :-
15. First, we would like to answer the question with regard to jurisdiction of the trial Court. It is the contention of the learned counsel for the appellant that, the Family Court has no jurisdiction to entertain the said suit because the said suit does not fall under any of the 14 categories within the jurisdiction of Family Court as per the provisions of the Family Courts Act, 1984( hereinafter referred to as "Act" ) particularly U/Sec.7 of the said Act. It is the contention of the learned counsel for the defendant/appellant that the trial Court has committed serious legal error in holding that the suit of the plaintiff falls within the categories of Section 7 (1) ( c ) of the Act. It is contended by the learned counsel that the proceedings between the parties must be with respect to the properties of the plaintiff or the defendant or either of them with reference to their marriage then only Sub Clause ( c ) of Section 7 (1) of Act can be attracted. Of course, there is no provision except Sub Clause ( c ) of Section 7 (1) of Act is applicable so far as this case is concerned. The trial Court after relying upon a decision of Hon'ble Supreme Court of India reported in AIR 1971 (SC) 2320 in the case of Hatti .Vs. Sunder Singh and also relying on Sub Clause ( c ) of Section 7 (1) of the Act has held that the suit is maintainable.
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16. In order to appreciate this point, it is just and necessary to consider, Sub Clause ( c ) of Section 7 (1) of Act reads as follows :-
" 7. Jurisdiction - (1) Subject to the other provisions of this Act, a Family Court shall have the jurisdiction to entertain -
(a) xxxx
(b) xxxx
(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of either of them.
The said section, if broadly understood, it gives a meaning that for a suit or proceedings between the parties to a marriage with respect to the property of the parties or either of them, then the dispute can be decided by the Family Court. Therefore,
(i) the suit or proceedings must be between the parties to a marriage; and
(ii) with respect to the property of the parties of either of them.16
There is no indication on plain reading of the Section that the property must be referable to the marriage between the parties. What is not there we cannot read into that provision.
17. Even otherwise, what learned counsel for the appellant is trying to persuade us is that the property must be with reference to the marriage between the parties. Therefore, there is no link between the property and marriage of the parties in this case, hence the Family Court has no jurisdiction to entertain the suit.. We are unable to accept the said submission made by the learned counsel for the appellant. Even otherwise also, the factual matrix of this case discloses that the wife claims that, the said property is her exclusive and Stridhana property. On the other hand, it is the plea of the defendant that, it is due to the marriage only and due to that relationship only, the property was purchased by the defendant by paying consideration amount in the name of 17 the plaintiff. Therefore, the defendant on the other hand claims that due to the relationship between the parties to the marriage, the property was purchased by him in the name of the plaintiff. Therefore, in this context also, the argument of the learned counsel cannot be accepted. Therefore, the trial Court was right in entertaining the suit and disposing of the same in accordance with law.
18. It is the further contention of the learned counsel for the appellant/defendant that the property is agricultural property and possession of the parties has to be decided by the civil Court. Therefore, Family Court should not have entertained the suit and there is bar U/Sec.5 of Karnataka Land Reforms Act to entertain the suit. The said contention of the defendant can be simply rejected for the reason that, it is nobody's case that, the defendant or the plaintiff never claimed that the suit schedule property was tenanted land at any point of time from the year 1973-74. Therefore, there was no issue 18 raised before the trial Court with regard to tenancy issue to be decided to bar the jurisdiction of the Family Court. Therefore, the said ground taken up before the Court with reference to the jurisdiction has been properly answered by the trial Court and we are of the opinion that, the suit before the trial Court was very much maintainable and the Family Court has got jurisdiction to decide the suit between the parties.
19. The second limb of this ground taken up is also a simple ground which is raised with reference to that, no opportunity was given by the trial Court to produce the witnesses on behalf of the defendant. The trial Court records clearly disclose that, it has provided ample opportunity to the plaintiff and to the defendant to adduce their evidence and produce documentary evidence. In fact, the defendant examined himself as D.W.1 and two witnesses as D.Ws.2 and 3. D.W.3 did not come for cross examination. Hence the trial Court has eschewed in 19 considering the evidence of D.W.3. Be that as it may, no material is produced to show as to any efforts made by the defendant to produce the further evidence before the trial Court. It is worth to refer a provision i.e. Order XLI Rule 27 of CPC. The said provision amply empowers any of the parties to file an application seeking permission to adduce any further documentary and oral evidence before the appellate Court. If the appellate Court comes to the conclusion that further evidence is necessary for proper adjudication of the rights of the parties, then it can very well permit leading of additional evidence as per law. No such effort has been made by the defendant before this Court also. Therefore, it cannot be said that no opportunity was given by the trial Court to produce the witnesses on behalf of the defendant. Therefore, this ground is also not available to the defendant/appellant before this Court.
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POINT NOS. 1 TO 3 :-
20. The legal question raised under these grounds taken up before this Court is that, the trial Court has not framed proper issues. It is a fundamental basic principle of civil jurisprudence that, issues have to be framed by the Court in order to make the parties to understand what exactly they have to establish before the Court and even though if some of the issues are not framed and issues already framed by the Court are sufficient to bring it to the knowledge of the parties what are there responsibilities and what points that they have to prove before the Court or if any of the issue is sufficient to answer the pleadings and evidence and the claim of the parties, the non-framing of specific issue is not fatal to the case. If the pleadings of the parties are seen, it is the case of the plaintiff that, she is the absolute owner of the suit landed properties having purchased the same by paying consideration and she continued to be in possession of the properties. Further, it is the defence of the defendant that, 21 he actually paid the consideration amount and purchased the suit property in the name of the plaintiff. Therefore, the trial Court has fixed the burden on the plaintiff by framing Issue no.1 as "whether plaintiff proves that she is the owner of the suit property?" putting burden on the plaintiff to establish that she purchased the suit schedule property by paying consideration and she became the owner of the property, though the defendant has taken the contention that he paid the consideration amount for purchase of those properties. In our opinion, non-framing of any further issues casting burden on the defendant in no way vitiates the suit proceedings.
21. Issue Nos.1 and 2 are inter connected. Issue No.1, though casts burden on the plaintiff to prove her ownership, it also inter alia shifts the onus on the defendant to establish his defence and plea taken up therein. The trial Court has, in detail, considered the oral and documentary evidence on record insofar as issue 22 nos.1 and 2 are concerned and came to the conclusion that the plaintiff, by means of oral evidence and by producing documentary evidence, has proved the ownership over the property under two registered sale deeds dated : 15.6.1998 and 5.3.1999. The trial Court has also extensively considered the oral and documentary evidence adduced by the defendant and his witnesses and gave a specific finding that the defendant has failed to discharge his onus in establishing the fact that, for the purpose of purchasing the said properties, he actually paid the consideration amount and as benami and for nominal sake, the sale deeds were taken in the name of the plaintiff. The trial Court has also considered entire material on record that there is a proper description of the property though the plaintiff has stated in the evidence that she did not know the exact boundaries of the suit property but the trial Court held that the identity of the property is available from the pleadings and as well as the documents produced before the Court. Therefore, on 23 considering the boundaries in the suit schedule property and also the pleadings of the plaintiff, the trial Court has come to the conclusion that the suit schedule property is identifiable and that can be very well recognized by the Court. Hence considering entire case the trial Court has Decreed the suit.
22. On careful re-evaluation of the evidence of P.Ws.1 to 4, they have categorically stated in their evidence particularly P.W.1 that, her father was doing milk business and earning Rs.15,000/- to Rs.20,000/- per month and in fact she is the sole daughter to her parents and she purchased the suit property out of Stridhana and income from the orientation of her parents. Though she has also not produced any documentary evidence to that effect but the defendant has admitted in his evidence that, she is the sole daughter to her parents and further the parents of the plaintiff were also doing milk business and they were also having landed properties. Therefore, though 24 the initial burden casts upon the plaintiff to establish the payment of consideration amount by her but the presumption arises in her favor as in the sale deeds it has been shown that, the consideration amount has been paid by the vendee to the vendor. Rebutting of the said recital in the sale deeds is on the defendant to show that the said recitals in the document are not proper and correct. Ex.P- 2 and Ex.P-3 are the sale deeds produced before the Court which amply establishes that, the vendor of those two properties has categorically stated that they have received the consideration amount from the vendee i.e. the plaintiff herein. The defendant has also not produced any documents in this regard as to how he acquired the title by paying the consideration amount as on that, particular date and how he has paid or adjusted the said amount of Rs.1,21,000/- and Rs.20,000/- for purchase of the said lands under said Ex.P-2 and Ex.P-3. The presumption as per the documents has to be raised in favour of the plaintiff for the simple reason that when the document 25 itself is produced before the Court it acts as primary evidence in favour of the plaintiff. Section 91 under Chapter VI of Indian Evidence Act excludes the oral evidence when the documentary evidence is produced. When the terms of the contract in the sale deeds with regard to the disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence. Therefore, when once the documents at Ex.P-2 and Ex.P-3 show that the consideration amount was paid by the vendee to the vendor, contrary to that, no oral evidence can be considered unless the said oral evidence by way of rebuttal is of a sterling quality to come to a different conclusion. In this context, the trial Court has relied upon the decision of Hon'ble Supreme Court of India, reported in AIR 1974 S.C. 171 in the matter 26 between JAYADAYAL PODDAR (DECEASED) THROUGH HIS L.RS AND ANOTHER .VS. SMT. BIBI HAZRA AND OTHERS, wherein, Hon'ble Apex Court has laid down certain principles in respect of benami transactions. In my opinion, the same portion of the judgment relied upon by the trial Court requires to be reiterated.
"Benami Transaction - Burden of
proving that a particular transaction is
benami lies on the person who asserts it -
This burden has to be discharged by definite proof - Essence of benami is the intention of parties - Circumstances to be taken into consideration for determining whether a transaction is benami or real - source of purchase money is the most important test.
The burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence on a definite character which would either directly prove the fact of Benami or establish circumstances unerringly raising an 27 inference of that fact. The essence of a benami is the intention of the party or parties concerned, and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures of surmises as a substitute for proof. Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formula or acid tests, uniformly applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances :- (1) the source from which the purchase money came (2) the nature and possession of the property, after the purchase (3) motive if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship if any, between the claimant and the alleged benamidar (5) the custody of the title deeds after the sale and 28 (6) the conduct of the parties concerned in dealing with the property after the sale.
These indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless the source where the purchase money came, is by far, the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another."
23. In this particular case, the plaintiff has produced the sale deeds at Ex.P-2 and Ex.P-3 and she has categorically stated about the source of money and that, she has paid the said purchase money according to the sale deeds and sale deed recitals show that, the amount was paid by her. She has also produced the document Ex.P-4, which is the mutation order in respect of land sy.no.84/1 and Ex.P-18 to Ex.P-42 are the ROR's in the name of the plaintiff pertaining to the said survey number and the mutation was also effected in the name of the plaintiff. Ex.P-4 is the copy of mutation order, Ex.P-5 is 29 the ROR of sy.no.84/1; Ex.P-6 and Ex.P-7 are the mutation orders; Ex.P-8 to Ex.P-10 are the certified copy of the ROR's; Ex.P-11 and Ex.P-12 are the mutation orders. These documents clearly disclose that, immediately after the sale deeds, the mutation has been effected in the name of the plaintiff and they show that the possession of the said property has been with the plaintiff. This is the legal effect of the transfer immediately after the execution of the sale deeds. Therefore, it shows that the plaintiff has been in possession of the property immediately after the purchase and also custodian of the documents. P.Ws.2 to 4 who are none other than the daughters of P.W.1 and the defendant, they have also categorically stated about the ownership of the plaintiff and enjoyment of the property by the plaintiff as owner in possession of the said lands. Therefore, looking to the facts and circumstances of the case, the acquisition of the rights have been immediately reported to the revenue authorities and they have transferred the said property 30 into the name of the plaintiff immediately after the sale deed.
24. Admittedly, the plaintiff is the wife of the defendant. Though the defendant has taken up the contention that he has purchased the property in the name of the plaintiff, but the custody of the title deeds of the said lands has been with the plaintiff and she has actually produced the said sale deeds before the Court. There is no explanation by the defendant how he allowed the said sale deeds to be with the plaintiff if he has really purchased the said property by paying the consideration amount. Therefore, the trial Court by considering all these factual aspects has held that the plaintiff has established her ownership over the said property by discharging her burden.
25. Now let us see whether the defendant has discharged his onus by any sterling material evidence. In this context, the defendant has relied upon the evidence of 31 himself and D.W.2. He has reiterated his defence taken up in the written statement and he relied upon the documents particularly Ex.P-13 to 15. According to him, the plaintiff has given up these properties in favour of the defendant for his maintenance etc. Of course, it is evident from the records that the plaintiff and defendant are residing separately since 2009 and the same has been admitted in the evidence of the respective parties. Admittedly, these documents at Ex.P-13 to 15 alleged to have came into existence in the year 2011. Ex.P-13 to Ex.P-15 which are not so clear and readable, but the trial Court has made its attempt to clarify the documents Ex.P- 13 and Ex.P-14 which are not registered documents but it is alleged by the defendant that, the said documents were executed by the plaintiff in order to give up her rights, title and interest over the schedule property i.e. sy.nos.84/1 and 84/2 in favour of the defendant and by virtue of the same, the ROR and khata have been made out in the name of the defendant as per the revenue documents. 32 Varadi and Consent Letter submitted as per Ex.P-11 and Ex.P-12 and giving up the property as per Ex.P-13 to 15. In fact, he has used those documents to get his name mutated in the revenue records. But, there is no explanation as to how these documents can be relied upon and legally admissible for appreciation of the documents. It is well recognized principle of law that the revenue records can only be changed on the basis of any valid documents which confer rights, title or any interest over the property in accordance with any of the law for the time being in force. The Transfer of Property Act and Indian Succession Act recognizes certain modes of transfer of the property. In such an eventuality, the transfer of the property is made, it will confer right, title and interest over the transferee. Even if Ex.P-13 to Ex.P-15 are considered to have been executed by the plaintiff, then also, they will not confer any right, title and interest over the said properties, as they were not registered documents. 33
26. We have carefully perused the said documents at Ex.P-13 to Ex.P-15. No where in the said documents, there is a recital that, the defendant has paid the consideration amount for purchase of the said property and therefore the plaintiff has given up her right in favor of the defendant. There is no recital in the said documents that the said consent was given, for the reasons that the consideration amount was paid by the defendant. but the said documents are in the nature of giving the properties towards maintenance of the defendant. The said documents being not registered, do not convey any right title interest over the properties in favor of the defendant. This also clearly goes to show that the defendant has admitted the title of the plaintiff and, never made any effort from 2009 to 2011 to get the mutation changed into his name. If at all the property was purchased by him nominally in the name of the plaintiff it is not explained as to why the property was not purchased in the name of the 34 defendant if he has actually paid the consideration amount.
27. Another important presumption U/Sec.14 of the Hindu Succession Act, comes to the aid of the plaintiff. The said provision creates an absolute right in favor of the female as to any property acquired before or after the commencement of that Act, shall be held by her as full owner thereof and not as a limited owner. Therefore, once it is shown that, by paying consideration amount, she has purchased the property as a full owner and in possession of the property as on the date of the dispute between the parties, heavy onus is cast on the defendant to rebut the said presumption raised in favour of the plaintiff. The defendant except relying upon Ex.P-13 to Ex.P-15 and subsequent entries in the RTC extracts, has not placed any material to show that he acquired any right, title and interest over the said suit schedule lands 35
28. The defendant has also, during the course of evidence, taken up the contention that, for the purpose of avoiding his brothers claiming the suit schedule property as joint family property, he has purchased the said lands in the name of his wife. As we have carefully perused the pleadings of the defendant, absolutely no pleading is there with reference to the motive for purchasing the said lands and giving the said transaction a benami colour and nominally purchasing the property in the name of his wife. In the absence of pleading to that effect, if any attempt is made during the course of evidence, by leading such evidence, which is not pleaded, such evidence cannot be taken into consideration to draw any inference in favor of the defendant. Therefore, in this particular case, there is no motive as such pleaded and proved by the defendant as to why he has not taken sale deeds in his name if really he has paid the consideration and has not made any efforts to get the revenue entries changed into his name immediately after the purchase.
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29. It is the further defence of the defendant that, for the purpose of purchase of the said property, he has sold some other properties during that relevant point of time and he has stated that, the defendant has sold, sy.no.148/1 measuring 3-acres and spent the consideration amount for construction of the suit house. He has also contended that he has sold sy.no.146 measuring 3-Acres of village Yelavantgi-K to perform the marriage of his daughters Channamma and also further sold 2-Acres of land in the said survey number to perform the marriage of his daughters Geeta and Kavita. Therefore, there is no relevance so far as this evidence is concerned with reference to the purchase of the abovesaid suit schedule lands. There is no relief sought for as far as the house property is concerned and there is no material placed before the Court by the defendant that actually he has sold the said lands. On a careful perusal of Ex.P-43 to 46, they show that they are still in the name of the 37 defendant as khatedar and in possession and enjoyment of the said land bearing sy.nos.146 and 148.
30. The defendant has not produced any material to show that he has sold any properties at the relevant point of time and he had sufficient source of money for the purpose of purchase of the said properties. Therefore, the defendant has not produced sufficient material to show that he could have paid the consideration at that particular point of time. Of course, plaintiff has also not sufficiently placed materials to show exactly the cash on hand with her as on the date of the purchase of the property but she has at least placed some material to show that she could have adjusted the money at the time of the purchase of the property. More than that, the presumption under the Registration Act and as well as the Evidence Act has to be raised in favour of the plaintiff with regard to the ownership of the said land. Therefore, in our opinion also, the plaintiff has discharged the said burden 38 in accordance with law and the defendant has not discharged his onus shifted on to him.
31. Further added to that, in the facts and circumstances of the case, the defendant has examined one more witness as D.W.2 who is no way connected with the sale deeds Ex.P-2 and Ex.P-3. However, he has stated that the defendant was in a position to pay the consideration amount but he has admitted that he was not the scribe or an attester to said Ex.P-2 and Ex.P-3. None of the attesters or the scribe to said Ex.P-2 and Ex.P-3 nor the vendors of the said property have been examined before the Court in order to establish the payment of consideration amount and purchase of the property by the defendant. The attesters, scribe and the previous owners of the said property are the proper persons who can speak about the actual consideration amount being paid by whom on that particular day. Therefore, in this line also, the defendant has failed to 39 establish the benami transaction as per the defence taken up by him.
32. Last but not least, another important point is that, the defendant strongly relying upon is on Ex.P-13 to Ex.P-15 that, the consent has been given by the plaintiff for change of Varadi in favour of the defendant. So far as existence of these documents have been denied by the plaintiff before the Court, it is admitted by the defendant in the course of cross examination that, the plaintiff has not directly given those documents to him, but the plaintiff on 19.5.2011 has sent those documents through one Shivalingappa and said Shivalingappa has obtained signature of plaintiff on those documents but the said aspect has been specifically denied by the plaintiff. It is the bounden duty of the defendant to prove that on those documents he entered into the possession of the property. The said Shivalingappa has not been examined before the Court. Therefore, looking from any angle, the defendant 40 has not at all by means of probabilities established that he purchased the property by paying the consideration and he is the actual owner of the said property and the plaintiff is only a Benamidar and for the name sake the property was purchased in her name. Therefore, if we look at the conduct of the parties concerned while dealing with the properties, if it is taken into consideration, the plaintiff stands on the higher footing than that of the defendant.
33. Under the above facts and circumstances of the case, the finding of the trial Court on Issue No.1& 2 that, the plaintiff established her ownership over the suit property and the mutation order dated : 6-7-2011 in favour of the defendant vide MR No.21/2010-11 on the basis of Ex.P-13 to Ex.P-15 as illegal is proper and correct. The said finding questioned herein in any manner cannot be found fault with. So the trial Court has answered all 41 the issues in the Affirmative which in no way calls for any interference at the hands of this Court.
34. Hence, we proceed to answer all the points formulated by us stating that the trial Court has not at all committed any serious factual and legal error in decreeing the suit of the plaintiff. The appeal is devoid of merits and same is liable to be dismissed with cost throughout. Hence we proceed to pass the following.
ORDER Appeal is dismissed with costs through out.
Sd/-
JUDGE Sd/-
JUDGE SGS