Karnataka High Court
Sri K Murugendran vs Sri K Dakshayani Kumar on 16 April, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR FIRST APPEAL NO.286 OF 2015 (POS)
BETWEEN:
SRI K. MURUGENDRAN
S/O N. KUPPUSWAMY,
AGE 60 YEARS,
R/AT NO.6/2, GROUND FLOOR,
ANNSWAMY MUDALIYAR ROAD,
SIVANCHETTY GARDEN,
BENGALURU-560 042.
...APPELLANT
(BY SRI. K.PALANIMUTHU, ADVOCATE)
AND
SRI K DAKSHAYANI KUMAR
S/O N KUPPUSWAMY,
AGE 54 YEARS,
R/AT NO.6/2, FIRST FLOOR,
ANNSWAMY MUDALIYAR ROAD,
SIVANCHETTY GARDEN,
BENGALURU-560 042. ... RESPONDENT
(By Sri: CHANDRA SHEKARA SHETTY G, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 22.11.2014
PASSED IN O.S.NO.834/2011 ON THE FILE OF THE X
2
ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU
(CCH-26), DECREEING THE SUIT FOR POSSESSION,
MESNE PROFITS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.01.2020, THIS DAY THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the defendant in O.S.No.834/2011 challenging the Judgment and Decree passed by the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) dated 22.11.2014.
2. For the sake of convenience, the parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellant herein was the defendant while the respondent herein was the plaintiff before the Trial Court.
3. The plaintiff and defendant are half brothers. The plaintiff filed a suit in O.S.No.834/2011 to direct the defendant to quit and deliver vacant possession of 3 the suit schedule property and for mesne profits. The plaintiff claimed that the suit property belonged to his father and that the defendant was permitted to occupy the ground floor premises of the suit schedule property. It is stated that the father of the plaintiff had executed a Gift Deed dated 29.07.2009 by which the ground floor and first floor of the suit schedule property was bequeathed to the plaintiff. The plaintiff thus became the full and absolute owner of the suit schedule property and he requested the defendant during last week of August 2009 and informed him about the execution of the Gift Deed and requested the defendant to hand over vacant possession of the ground floor portion. Since the defendant was the brother of the plaintiff, he was permitted to occupy the premises for six months from August 2009. The defendant thereafter failed to deliver the possession of the suit schedule property which compelled the plaintiff to cause a notice dated 12.06.2010 calling upon the defendant to quit 4 and deliver the vacant possession of the suit schedule property and hand over the same to the plaintiff. The notice was duly served upon the defendant. Since the defendant failed to comply with the notice demand, the plaintiff filed the present suit.
4. The defendant filed his written statement and denied the averments of the plaint. He contended that the site where the building was constructed was purchased by the father of the plaintiff from the contribution and joint effort of all the members of the family and that the same was purchased by the joint family nucleus. He contended that the jewels and other valuables which exclusively belonged to his mother was sold and encashed to purchase the site and for construction of the ground floor. He therefore contended that he is entitled for a share in the suit property. He contended that after he started earning, he was contributing his entire monthly salary to his 5 father. Therefore, he contended that the suit property was not the exclusive property of the father of the plaintiff and he was not entitled to bequeath the suit property to the plaintiff. He contended that he was in possession of the ground floor of the suit premises as one of the members of the joint family and that the Gift Deed did not confer any right, title or interest upon the plaintiff. He also denied the execution of the Gift Deed. He contended that the father of the plaintiff was aged and was ailing and therefore the Gift Deed was obtained fraudulently by the plaintiff.
5. Based on the above, the Trial Court framed the following issues:-
"1) Whether the plaintiff proves that his father was exclusive owner of the suit schedule property and gifted the same under gift deed dated 29.07.2009 in his favour?
2) Whether the plaintiff proves that the defendant was in permissive possession of 6 the suit schedule property and now he is in unauthorized possession of the same after issuing legal notice dated 10.06.2010?
3) Whether the defendant proves that suit schedule property was constructed by his father out of joint family nucleus and by selling jewelry of his mother?
4) Whether the plaintiff is entitled for recovery of possession of the suit property?
5) Whether the plaintiff is entitled for mesne profits?
6) What order or decree? "
6. Before the Trial Court the plaintiff was examined as P.W.1 and the father of the plaintiff was examined as P.W.2 and they marked Exhibits P1 to P13. The defendant was examined as D.W.1 and he marked Exhibits-D1 to D5.
7. The Trial Court sifted through the evidence and held that the claim of the defendant that the suit 7 property was not the self acquisition of the father of the plaintiff was incorrect. The Trial Court further held that the plaintiff had proved the valid execution of the Gift Deed by examining P.W.2. The Trial Court also held that the defendant was in permissive possession of the suit schedule property and thus decreed the suit and directed the defendant to quit and deliver the vacant possession of the suit schedule property and also ordered enquiry into mesne profits.
8. Feeling aggrieved by the aforesaid Judgment and Decree of the Trial Court, the defendant has filed this Regular First Appeal.
9. This appeal is listed for admission. The Trial Court record was secured. Heard the learned Counsel for the appellant/defendant and learned Counsel for the respondent/plaintiff. I have perused the records of the Trial Court and also its Judgment and Decree. I have 8 also perused the grounds urged by the appellant in the appeal memorandum.
10. The following points arise for consideration in this appeal:-
1) Whether the plaintiff proves that the suit property was the self acquisition of his father?
2) Whether the plaintiff proves the valid execution of Exhibit-P3?
3) Whether the plaintiff proves that the
defendant was placed in permissive
possession of the suit schedule
property?
4) Whether the plaintiff is entitled for
vacant possession of the suit schedule property?
11. My answers to the above points are as follows:
9
Point No.1 : In the affirmative
Point No.2 : In the affirmative
Point No.3 : In the affirmative
Point No.4 : In the affirmative
12. All the above points are together taken up for consideration. The learned Counsel for the defendant/appellant vehemently contended that the plaintiff and the defendant are full blood brothers and the dispute between them is as to whether the suit property was self acquisition or whether there was any contribution from the joint family nucleus to enable the father of the plaintiff to purchase the suit property and to develop it. He contended that having regard to the nature of relationship between the parties, this Court should not expect proof of the highest order. He would contend that the family possessed properties in K.G.F. which was earning income and this money was diverted to purchase the suit schedule property by the father of 10 the plaintiff in the year 1969. He also contended that there was enough evidence on record which disclosed that the father of the plaintiff and the defendant had opened a joint account wherein the monthly income of the defendant was credited into that account every month. He also contended that some of the income from the business in the shop was also credited into that account and this money was utilized for putting up construction. He therefore, contended that the defendant was entitled to continue to occupy the suit premises which was the property of the joint family as the father of the plaintiff had thrown the suit property into the common hotchpot.
13. The admitted facts as are evident from the record are that the father of the plaintiff and the defendant was employed with the Mysore State Electricity Board in the year 1949. He was drawing a monthly salary of Rs. 500/-. The father of the plaintiff 11 and defendant had started a shop during the year 1965. The father of the plaintiff had some earnings from the said business. The father of the plaintiff had purchased the suit property in the year 1969 in terms of Exhibit P1. He thereafter sold a portion measuring 1,435 square feet to Kuppammal on 04.05.1972. He had raised a loan from the Mysore State Electricity Board by depositing the title deed of the suit property which was evidenced by a Memorandum of Deposit of Title Deeds dated 21.12.1972 (Exhibit-P13). The construction of the ground floor commenced during the year 1979. The father of the plaintiff retired in the year 1979 and the loan of Rs. 27,480/- was cleared as is evident from the Discharge Certificate mentioned on Exhibit-P13. It is also relevant to note that the defendant joined the services in the year 1983 i.e., long after the father of the plaintiff had retired and long after the ground floor premises was constructed. It is found in the evidence that the first floor of the premises was constructed in 12 the year 1980. There is no evidence on record which indicates that either the plaintiff or the defendant had any source of income upto the year 1980. Though the defendant contended that the jewels of his mother was sold to purchase the suit schedule property in the year 1969, except a photograph of the defendant's mother wearing a few ornaments, the defendant did not adduce any evidence or place on record any document in proof thereof. Thus, it cannot be accepted that those jewels were utilized or sold for the purpose of purchasing the suit schedule property. At any rate, the defendant failed to prove that these jewels were utilized for the purpose of purchasing the suit schedule property. The defendant took up another contention stating that the family had properties in K.G.F and also that the family had a shop business in Dharmaraj Koil Street, Bangalore. The defendant has failed to demonstrate that the business commenced at Dharmaraj Koil street was actually the business of the joint family as there is 13 no presumption regarding the jointness of such business. The defendant also did not produce any evidence to demonstrate that the suit property was purchased out of the income generated from the business in the shop.
14. It is therefore clear that the suit schedule property was purchased out of the income of the father of the plaintiff and therefore, the suit property was his self acquisition. There is apparently no proof of any contribution of any funds either by the plaintiff or the defendant to purchase the suit schedule property or put up the construction over the suit schedule property. Hence point no.1 is held in the affirmative and that the suit schedule property was the self acquisition of the father of the plaintiff.
15. The plaintiff claimed that his father had gifted the suit property in terms of Exhibit-P3. The father of the plaintiff was examined as P.W.2 and he has 14 clearly deposed about the fact of execution of Exhibit- P3. He denied the suggestion that the plaintiff had misled him to execute the Gift Deed. P.W.2 denied the suggestion that the plaintiff had created a false gift deed to grab the suit property. It is relevant to note that P.W.2 in his deposition and also P.W.1 in his deposition have stated that the father of the plaintiff had willed away the property at K.G.F. to the defendant herein. Since P.W.2 himself was examined before the Court and he testified about the valid execution of the Gift Deed, no further proof was required regarding the valid execution of the Exhibit-P3. Therefore, I hold that the Gift Deed executed by the P.W.2 in favour of the plaintiff was valid, legal and binding and thus answer point no.2 in the affirmative and in favour of the plaintiff.
16. It is not in dispute that the defendant was employed at K.G.F. The defendant admitted that he had married for the second time in the year 1997. During 15 the cross examination of PW1, it was suggested "I do not know whether there are three residential portions and one shop at K.G.F." If this is so, it was quite natural for the defendant to reside at K.G.F. If the defendant has been residing at Bangalore in the suit schedule property, it is quite probable that the defendant was permitted by his father to reside in the ground floor premises. Therefore, I hold that the defendant was placed in permissive possession of the suit schedule property. At any rate, if the father of the plaintiff had allowed the defendant to stay in a part of the premises, then that in itself cannot arm the defendant a right to claim that he in possession as a co-owner.
17. The plaintiff has claimed that after the execution of Exhibit-P3, he had issued a notice as per Exhibit-P10 calling upon the defendant to quit and deliver the vacant possession of the suit schedule property. The defendant has failed to comply with the 16 demand of the plaintiff. Thus the plaintiff was constrained to file the present suit. The defendant has set up a defense that the suit schedule property was a joint family property and that the same was acquired by the father of the defendant out of the nucleus of the joint family. The defendant has failed to prove the same and thus in view of the termination of the permission that was granted, the defendant is bound to quit and deliver vacant possession of the suit schedule property.
18. The plaintiff and the P.W.2 have clearly stated that the defendant was placed in permissive possession of the suit schedule property. If that be so, the question of the defendant being liable to pay any mesne profits to the plaintiff would not arise. Furthermore, there was no jural relationship of a landlord and tenant and there was no rent that was agreed upon between the plaintiff and the defendant. 17 Thus the question of the plaintiff being entitled to any mesne profits would not arise. Hence the following:
ORDER This Regular First Appeal is allowed in part. The Judgment and Decree dated 22.11.2014 passed by the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) in O. S. No. 834/2011 directing the defendant to quit and deliver vacant possession of the suit schedule property to the plaintiff is upheld. However, the Judgment and Decree of the Trial Court ordering an enquiry into mesne profits is set aside.
The parties to bear their own costs.
Sd/-
JUDGE mbb