Karnataka High Court
Khurshidahmed vs Smt Khairunnissa on 18 January, 2012
Bench: K. Sreedhar Rao, A.S. Bopanna
IN THE HIGH COURT OF IKARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 18W DAY OF JANUARY 2012
BEFORE
THE HON'BLE MR. JUSTICE K. SREEDHAR RAO
AND
THE HON'BLE MR. JUSTICE A.S.BOPANNA
RNO94200JjI
LNLN2JL2QPZ;
Between:
KhurshidahrnecI S/o.Ghudusah GadagiKar.
Aged about 49 years, Business.
R/ o. Shikkalagar Oni, Ranibennur, Haven District.
Appellant
(By Sri Maclanmohan M.IKhannur. Advocate)
And
1. Smt.IKhairunnissa W/o.IKhurshidahrned
Gadagkar, Aged about 52 years, R/o.Shikkalag
ar Oni.
Tq.: Ranehennur-581 115, District Haven,
Presently residing at Islampur,
Old Hubli 580020, Dist.: Dharwad.
2. The President., T.V.M.E. Society.
Sn .Chandramoulashwara S/o.Shivacharvasw
amiji,
of Harapanahalli. Tegginamath, Age major
(Coircc age not known) 0cc.: Religious Prea
ching.
R o. H arapanahalli -583 1 3 1 Dist.: Davanage
.
re.
Respondents
-2-
(By Sri.Ravi S.Hegde, Advocate for Sri.S.V.Shastri,
Sri.ItRavindra Nath, Sri.Ismail D.Jalasoor, Adv. for Ri.
R2 Served)
-
This RFA is filed under Section 96 of CPC against the
judgment and decree dated 28.02.2007 passed
in
O.S.No.65/2000 on the file of the Addl. Civil Judge (Sr.D
n.),
Ranebennur, decreeing the suit for declaration
and
injunction.
IN RFA No.3048/2009:
Between:
The President, T.M.A.E. Society,
Sri .Chandramouleshwar,
S/o.Shivacharya Swamiji of
Harapanahalli Tegginamath,
Aged about 74 years,
0cc.: Religious Preaching,
R/at Harapanahalli-583 131,
Davanagere District.
Appellant
(By Sri. M M Swamy. ADvocate)
. .
And:
1. Smt.Khairunnissa W/o.Khurshidahmed Gadagkar
,
Aged about 51 years, 0cc.: Household Work,
R/at Sikkalgar Oni, Ranebennur,
Presently R/at lslampur,
Old Hubli, Hubli-580 024.
2. Khurshidahmed S/o.Ghudusab Gadagkar,
Aged about 55 years, 0cc.: Business,
R/at Sikkalgar Oni, Ranebennur-581 115
Respondents
(By Sri.Ravi Hegde, Adv. for RI. R2-Served)
&
S
-3-
This RFA is filed under Section 96 of CPC against the
judgment and decree dated 28.02.2007 passed in
O.S.No.65/2000 on the file of the Addl. Civil Judge (Sr.Dn4,
Ranebennur decreeing the suit filed for declaration and
injunction.
These appeals are coming up for final hearing this day.
A.S.Bopanna, adelivered the following judgment.
JUDGMENT
Appellants in these two appeals are the respective defendants in O.S.No.65/ 2000. The suit in question was filed by the respondents herein seeking for declaration and injunction in respect of the suit schedule properties.
2. The parties are referred to in the rank as arraigned before the trial Court for the purposes of convenience and clarity.
3. The plaintiff is the wife of 1st defendant. The defendant is the purchaser of the suit schedule property said to have been sold by I ' defendant to 2'"' defendant. The plaintiff was before the trail Court in the suit in question seeking for declaration and injunction contending that the & -4- suit schedule properties bearing R.S.No. 179/1 and R.S.No.483/ 12 of Magod and Ranebennur are the absolute properties of the plaintiff.
4. It was her contention that the suit properties were purchased from the funds, which had been provided by her father and mutation and revenue entries in respect of the same stood in the name of the plaintiff. The allegation made by the plaintiff in the plaint is that the 181 defendant who is her husband had subsequently married another lady and had left the company with the plaintiff. But taking advantage of the marital relationship had subsequently secured change of mutation entry to the name of the 1st defendant and had thereafter sold the property bearing R.S.No. 179/1 to the 2nd defendant vide sale deed dated 04.11.1999. It is in this context the plaintiff had initiated the suit seeking for declaration that she is absolute owner of the property; to declare the mutation entries bearing No.40 16 and 68 16-A, by which the names had been mutated in the name of the 1st -5- defendant from that of the plaintiff as null and void and also to declare that the 2nd defendant has not acquired right or title in the suit property bearing No.179/i of Magod.
5. The defendants had entered appearance and had filed separate written statements. The I' defendant namely husband of the plaintiff had admitted the relationship and the fact that he had subsequently married another lady and was residing separately. Further the I respondent contended that the property in fact had been purchased in the name of the I si defendant out of his funds. Therefore, the plaintiff held the properties benami for the benefit of 1 st defendant. It was contended that the property had been made over to the I i defendant by oral gift and pursuant to the same the mutation entries had been changed to the name of the 1st defendant and in turn the I' defendant thus being the owner had sold the same to 2nd defendant.
6. The 2nd defendant in his written statement had contended that the I si defendant in fact vas having right over -6- the property and the 2nd defendant after making appropriate enquiry in the neighbQrhood and also by looking into the records purchased the properties and therefore being a bonafide purchaser of the property they are entitled to the same. Therefore, both the defendants had sought for dismissal of the suit.
7. The Court below taking into consideration the rival ccintentions had initially framed seven issues, for its consideration and had thereafter framed two additional issues. The issues and the additional issues read as .
hereunder.
ISSUES:
i. Whether the plaintiff proves that she is the absolute owner of the suit schedule properties?
ii. Whether the plaintiff proves that the mutation entries in 4016 and 6816-A in respect of suit properties are illegal and void?
-1-
iv. Whether the plaintijf j ores that the sale
deed dated 04. II. 1999 executed by I
deter daut in Thvour of 2 defer daiu in
7-espect ot RS. 1 79: 1 s not binding on her?
iv. Whether the plaintiff proves that she is in
possession oJ the suit properties?
v. Whether the plaintiffs proves the alleged
interference by the deffndants?
vi. Whether the 2 defendwit proves that he
is the bonafide purchaser of RS. No. 179/1 i 'a inc u'i thou t i zotice?
vii. What order or decree?
ADDITIONAL ISSL 'ES:
Whet her Deff.No. 1 proves that he has purchased both the suit properties in the name of piff thus the plaintiff is the hei in inida r and ii or a real oz ii. Whether deff No. I in the alternative proves that. the piff has orally gifted the suit roperries in his Ja von r iii presence of panchas and delivered the possession of the suit properties to him and he has accepted the said oral gift?-8-
8. In order to discharge the burden cast on the parties. the plaintiff has got examined herself as PW 1 and had examined two witnesses as PW2 and PW3 and had got marked documents at Exs.P1 to Exs.P25. The I " defendant had got examined himself as DW1 and had examined the witnesses as DW I to DW5, while 2nd defendant had examined the Power of Attorney Holder as DW6. On behalf of the defendants Ex.D1 to D6 were marked.
9. Heard the learned counsel for the parties herein.
10. The contention put forth by the counsel for the panics is in consonance with the contention which had been put forth for consideration before the trial Court. Keeping the said contentions in view we have perused the materials available on record including the records secured from the trial Court.
11. The evidence of• PW1 namely plaintiff would indicate that it is in line with what had been stated in the plaint. The plaintiff has referred to the documents namely
-t -9- ROR. which are marked at Ex.P1 to Ex.P3 to contend that the properties were standing in her name and a reference was also made to the subsequent change of entries which were made in the said revenue entries, more particularly, to the mutation entry rounding up her name and indicating the name of the 1 ' defendant. In this regard, the consent letter stated to have been submitted by the is! defendant for change of mutation were produced and marked at Ex.P1 0 and Ex.Pi 1 and making such request by the plaintiff is disputed and mutation entries at Ex.Pl 2 and Ex.Pl 3 made consequent on the same are disputed. Referring to the same, it was contended that the mutation entries had been illegally made and got transferred to the name of 181 defendant without her knowledge and consent and therefore, the said mutation entries are liable to be declared as null and void.
12. The witnesses examined as PW2 had supported the case of the plaintiff and had also stated with regard to the nature of ownership of the properties by the plaintiff and that Ia -10- her father had financed to purchase the said properties. This supports the version of PWI that her father had facilitated the purchase by providing funds amounting to 32,000/- at first instance and on other property further a sum of 25,000/- for the purchase of second property. PW I has denied that defendant had purchased the property in her name. PW2 is the Tahsildar who had produced the documents and had admitted with regard to the illegality relating to the change of mutation entries. As against the said evidence tendered by the plaintiff and her witnesses, in support of their case, the defendant No.1 had examined himself as DW1 and had relied on the very same mutation entry by contending that the plaintiff had gifted the properties in favour of the jst defendant. In this regard it was contended at the first instance that he had in fact financed for the purchase of the properties in favour of his wife namely plaintiff. Since, the plaintiff did not have children and since she was depressed, the purchase was made in her name for her benefit. Subsequently, since the 1st defendant had contracted second
--11--
marriage and had six children, the plaintiff in order to provide for their benefit had made the gift. The witnesses on behalf of the defendants no doubt stated in similar line. However, from the said evidence, it does not disclose and prove conclusively the source of income from which the I ' defendant is said to have purchased the property in favour of plaintiff, when the plaintiff in fact tendered evidence that her father had financed her for the purchase of the properties. That apart, from the said evidence, which has been stated by the defendant, it does not disclose that the properties had been purchased by the I ' defendant out of his funds so as to contend that the properties had been purchased as benami in favour of the plaintiff. Under the Act when there is a initial presumption that it would be the absolute property of the wife the burden was heavy on the 1st defendant to rebut the same. The I defendant has failed in this regard.
13. In our view the very nature of contention which has been put forth. firstly to contend it is benami purchase by -12- I ' defendant and secondly to contend that it was transferred to him by oral gift, it is mutually destructive in as much as if in fact 1' defendant had purchased the property as benami in favour of wife, there would not have been any need for 1st defendant to secure transfer of the property subsequently by way of gift as contended by him and secure change of mutation entry. That apart, the very fact of gift is required to be proved and the essentials of gift had not been proved. Further, the very reason provided for the change of mutation entry does not corroborate the said fact and therefore, the said evidence does not inspire confidence in the Court.
14. Another aspect of the matter is that if in fact the theory of the 1st defendant that the wife had made over the property to him by way of gift since he had six children from the second marriage is to be accepted, 1" defendant should have retained the property for the benefit of the family. On the other hand, the documents indicate that the mutation entries had been got changed by the 1's' defendant in the year 1999
- 13- and immediately thereafter the sale deed had been exec uted to 2'' defendant on 04.11.1999. This would indicate that the change of mutation entry had been got done by the I defendant with a malafide intention of alienating the property to the defendant without knowledge of the plaintiff. As otherwise, if it was genuine, the l defendant coul d have secured the plaintiff herself to execute the sale deed , if in fact the plaintiff had interest of the 1' defendant and his children in her mind while making oral gift as contended by the I defendant. Therefore, insofar as the evidence whic h has been tendered b\ the parties namely plaintiff and the I defendant, the case put forth b the plaintiff appears more probable and the same is also established by way of othe r evidence to contend that the properties had been purchase d in her name by the funds provided by the father.
1 5. Insofar as the contention put forth by the 2' defendant, that they are bonafide purchasers, we are unable to accept the same. This is for the reason that though the 211 14 defendant has contended that they had enquired. the fact that the plaintiff had also got published the notice as per Ex.P6 is not in dispute. It is true that the same is a public notice and the 2' defendant did not have any personal notice. However, to that effect the fact that the mutation entry had been made in the name of the plaintiff after rounding off the name of plaintiff was evident from the revenue documen ts for the second defendant to peruse and make further enquiries with the plaintiff with regard to the chan ge of entries since such change had been made without there being an other supporting documents indicating transfer of the property. The said exercise has not been undertaken by the 2nd defendant so as to contend that they are the honafide purchasers of the property.
lb. Therefore, from the evidence available on record, we are of the view that the defendants had not estab lished their contention even though by the additional issue s heavy burden had been cast on them. in the said circumsta nce a
- 15- perusal of the judgment passed by the Court below would indicate that the trial Court has referred to the oral as well as documentary evidence which had been tendered before it and has arrived at the conclusion that the suit filed by the plaintiff requires to be decreed. On reappreciation of the oral and the documentary evidence, we are of the opinion that the trial Court has not committed any error so as to call for interference in these appeals. Accordingly, the appeals being devoid of merit stand dismissed. Parties to bear their own costs.
Sd/
JUDGE
vnp Sd/
JUDGE