Karnataka High Court
Smt Vasundara Krishnamurthy vs Smt Ananda Sridhar on 13 July, 2012
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 13th day of July, 2012
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular First Appeals 2482 / 2007 c/w 78 / 2008
Between:
In RFA 2482/2007
1 Smt Vasundara Krishnamurthy
67 yrs, W/o late S G Krishnamurthy
2 Sri S K Dinesh, 43 yrs
S/o late S G Krishnamurthy
3 Sri S K Sanjay, 40 yrs
S/o late S G Krishnamurthy
All r/a # 680, 'Bloom Field'
Vasantha Mahal Road
Nazarbad, Mysore 10 Appellants
(By Sri K Suman, Adv.)
And:
1 Smt Ananda Sridhar W/o late V Sridhar
R/a # 5, Raghavaiah Road, T Nagar
Chennai 600 007
2
2 Mrs Vijaya G Agadi W/o G Agadi
# 19, 'Gokul' 11th Main, 5th Block
Jayanagar, Bangalore 11
3 Commissioner
Bangalore Development Authority
T Chowdaiah Road, K P West, B'lore 20
4 Sri S K Ram Prasad
C/o Sri S K Ramadhyani
# 3009/2, II Main, 17th Cross
BSK II Stage, Bangalore 70
5 Sri S K Ramadhyani
# 3009/2, II Main, 17th Cross
BSK II Stage, Bangalore 70
6 Sri Jitendra Virwani
Managing Director
Embassy Group of Companies
# 150, Embassy Point
Infantry Road, Bangalore 11 Respondents
(By Sri Udaya Holla, Sr.Adv. For Sri C K Nanda
Kumar, Adv. for R1;Sri S Gangadhar Aithal, Adv. for R2
Sri I G Gachchinamath, Adv. for R3; Sri S V Bhat, Adv.
for R5; M/s Anup S Shaw Law Firm for R6)
In RFA 78/2008
Smt Ananda Sridhar W/o late V Sridhar
R/a Raghavaiah Road, T Nagar
Chennai 7 Appellant
(By Sri Udaya Holla, Sr.Adv. for Sri C K
Nanda Kumar, Adv.)
3
And
1 Smt Vasundara Krishnamurthy
67 yrs, W/o late S G Krishnamurthy
2 Sri S K Dinesh, 43 yrs
S/o late S G Krishnamurthy
3 Sri S K Sanjay, 40 yrs
S/o late S G Krishnamurthy
All r/a # 680, 'Bloom Field'
Vasantha Mahal Road
Nazarbad, Mysore 10
4 Mrs Vijaya G Agadi W/o G Agadi
# 19, 'Gokul' 11th Main, 5th Block
Jayanagar, Bangalore 11
5 Commissioner
Bangalore Development Authority
T Chowdaiah Road, K P West
Bangalore 20
6 Sri S K Ram Prasad
C/o Sri S K Ramadhyani
# 3009/2, II Main, 17th Cross
BSK II Stage, Bangalore 70
7 Sri S K Ramadhyani
# 3009/2, II Main, 17th Cross
BSK II Stage, Bangalore 70
8 Sri Jitendra Virwani
Managing Director
Embassy Group of Companies
4
# 150, Embassy Point
Infantry Road, Bangalore 11 Respondents
(By Sri Gangadhar Aithal, Adv. for R4;
Sri K Suman, Adv. for R1-3; Sri I G
Gachchinamath, Adv. for R5; Sri S V Bhat
Adv. for R7; M/s Anup S Shaw Law Firm for R8)
These Appeals are filed under O 41, R 1, CPC praying to set aside
the judgment and decree dated 11.10.2007 in OS 9259/1997 by the 18 th
Addl. City Civil Judge, Bangalore.
These Appeals having been reserved for Orders on 5 th June, 2012
the Court delivered the following:
JUDGMENT
These appeals have been filed aggrieved by the order passed by the XVIII Addl. City Civil Judge, Bangalore in OS 9259/1997 on 11.10.12007. RFA 2482/2007 is filed by defendants 1 to 3 and RFA 78/2008 is filed by the plaintiff. Both the appeals are taken together for disposal.
Plaintiff and the 4 defendant are sisters born to one Gunda Setty.
th st 1 defendant is the wife of the brother of the plaintiff viz., S G Krishnamurthy and defendants 2 and 3 are the children of S G 5 st Krishnamurthy born through 1 defendant. S G Krishnamurthy died on 30.5.1968. According to the plaintiff, Gunda Setty, father of the plaintiff/appellant had purchased 1.00 acre of land from the Maharaja of Mysore and later, it was acquired for formation of RMV Extension. There is also challenge to the acquisition proceedings initiated and ultimately, although there is failure to the challenge to the acquisition proceedings, the then Government of Mysore by order dated 14.11.1961 had agreed to reconvey the land acquired to the owners subject to certain conditions based th on which, the 5 defendant Bangalore Development Authority, by order dated 7.3.1963, called upon the claimants to apply individually for reconveyance of the acquired land. As such, Gunda Setty was entitled for th four sites as per the order of the 5 defendant BDA in RMV Extension i.e., site nos.57, 58, 63 and 64 which are mentioned in the A Schedule properties. It appears, Gunda Setty addressed a letter to the defendant nd BDA seeking reconveyance of site No.58 in favour of the 2 defendant who is his grandson viz., S K Dinesh Kumar born to S G Krishnamurthy st S/o Gunda Setty; site No.63 in favour of the 1 defendant / Vasundhara 6 Krishnamurthy w/o S G Krishnamurthy; site No.64 in his own name and th th site No.57 in favour of the 6 and 7 defendants. Gunda Setty died intestate in the year 1989 leaving behind plaintiff and defendants 1 to 4 as his legal representatives. Property in A Schedule are situate at Bangalore. Further, the B Schedule properties at Mysore are purchased by late Gunda Setty and all the properties were his self acquired properties.
According to the plaintiff, she issued a legal notice seeking partition of the suit schedule properties. When, there was no response, she filed a suit in OS 9259/1997 before the civil court. Defendants 1 to 3 and th defendants 5, 6 & 7 filed separate written statements. The 4 defendant also filed a separate written statement supporting the case of the plaintiff. Based on the pleadings, the following issues were framed::
1 Whether plaintiff proves that the suit schedule properties are joint hindu undivided family properties and also the ancestral properties of the parties to the suit?
2 Whether plaintiff proves that she is entitled for 3/8 th share in the suit schedule properties and for separate possession of the same by metes 7 and bounds?
3 Whether plaintiff proves that the reconveyance effected in so far as site No.57 and 58 and 63 in favour of defendants 1 and 3 and defendants 2, 6 and 7 are illegal land liable to be set aside?
4 Whether plaintiff proves that the suit is barred under S.6 (A)(D) of the Hindu Succession Act, 1956?
5 Whether suit is under valued? And the court fee paid is insufficient?
6 Whether suit is not maintainable under law since the statutory notice under S.80, CPC is not issued to defendant no.5?
7 Whether plaintiff proves that she has got right, title and interest over the suit schedule property?
8 Whether defendants prove that site Nos.57,58 and 63 are their self acquired properties?
9 Whether the suit is barred by law of limitation?
10 To what relief are the parties entitled to:
11 What order or decree?
On behalf of the plaintiff, she examined herself and on behalf of the defendants, defendants 3 and 4 were examined as DW 1 and 2 and one 8 th Gopinath as DW 3, legal representative of 8 defendant was examined. About seventeen documents on behalf of the plaintiff and twenty documents on behalf of the defendants were got marked. After inquiry, after hearing the parties, suit was partly decreed holding that plaintiff and th 4 defendant are entitled for 1/3rd share each in items 2 to 4 of plaint A Schedule properties and defendants 1 to 3 are together are entitled for 1/3 rd th share in items 2 to 4 of plaint A schedule properties; the 4 defendant is also entitled for 1/6th share in the portion of B Schedule property which was jointly purchased in the name of Gunda Setty and defendants 2 and 3. It is also held that defendants 1 to 3 are together entitled for 1/3 rd share in the portion of the plaint B schedule property jointly purchased in the name of Gunda Setty and defendants 2 and 3 and, dismissed the suit in respect of item 1 of A schedule property and portion of the B schedule property which was exclusively purchased in the name of defendants 2 and 3 and also ordered the court fee to be paid in respect of A schedule and also a portion of B schedule properties. Being aggrieved by the same, these two appeals have been filed as noted above.
9
Heard the counsel representing the respective parties. According to the counsel representing defendants 1 to 3 / appellants in RFA 2482/2007, Gunda Setty during his life time, has exercised his absolute rights of ownership in respect of self acquired properties by him i.e., four sites by disposing of three sites - some by way of sale / gift / re- conveyance requesting the BDA to directly execute the deed of re- conveyance in respect of three sites in favour of his nominees. As per his wish, site no.57 - item 1 of plaint A schedule property was required to be re-conveyed by the BDA and accordingly reconveyed to defendants 6 and
7. Further, his argument is, exercising absolute right of ownership in respect of two other sites in No.58 and 63, he decided to gift away the same in favour of defendants 1 to 3 out of love and affection and these defendants 1 to 3 are none other than the grand children and daughter in law of Gunda Setty and the wife and children of S G Krishnamurthy s/o Gunda Setty. The son of Gunda Setty i.e., Krishnamurthy predeceased Gunda Setty on 30.5.1968. As per the wish and re-conveyance letter of Gunda Setty, BDA in the year 1994-95 executed the required sale deed in favour of defendants 1 to 3 and 6 and 7 respectively.
10
Only site no.64 was retained by Gunda Setty in his name. It is the contention of the learned counsel that defendants 1 to 3 are the absolute owners of the two sites which were re-conveyed in their favour as per the wish of Gunda Setty who, in exercise of his right of absolute ownership, has assigned by way of gift/relinquishment/re-conveyance in favour of defendants 1 to 3. Similarly, these defendants 1 to 3 are also absolute owners of the property at Mysore in B schedule properties. It is their self acquisition acquired out of their own income and assets left behind by late S G Krishnamurthy. These properties were purchased way back in the year 1974. Since late Gunda Setty was also the only male member living with defendants 1 to 3 and late S G Krishnamurthy is the only son, out of natural love and affection, the name of Gunda Setty is included in two of the sale deeds as co-purchaser relating to a portion of B schedule property. Also, according to the learned counsel, after the death of Gunda Setty in the year 1989, succession certificate was obtained by his legal representative viz., wife Rajamma and defendants in the year 1990 in respect of the shares and debentures held by Gunda Setty which are the only properties left by Gunda Setty after his death to the knowledge of all the parties. It is for the first 11 th time in the year 1997, the plaintiff in collusion with the 4 defendant, filed a false suit for partition claiming at that time all the sites were reconveyed by the BDA as per the wish of Gunda Setty. The court below without appreciating the evidence and material on record, on the admission made by th the plaintiff and the 4 defendant, has partly decreed the suit granting a th share in favour of the plaintiff and 4 defendant in stead of dismissing the suit. Thus, in support of his contention, counsel has relied upon several decisions.
According to the plaintiff/appellant in RFA 78/2008, all the suit properties are the self acquired properties of late Gunda Setty and the entire suit ought to have been decreed in terms of the prayer. The court below has not applied uniform yardstick in respect of the entire suit schedule property. The sale deed is executed in the year 1995 in favour of defendants 5 and 6 on the nomination made by Gunda Setty after his death and the lease cum sale agreement was in existence. In this regard, learned counsel has relied upon the decision of this Court in Y R Mahadev Vs K Dayalan - 1997 (4) KLJ 264 to contend that during the lease cum sale period, there is total bar 12 for alienation. Further, it is also argued that purchaser from the BDA has no right to alienate the site within a period of ten years from the date of conveyance. It is also his argument, during the subsistence of lease cum sale agreement, this Gunda Setty had no right and the BDA ought not to have reconveyed the property in favour of persons suggested by Gunda Setty and that such nomination could not be treated either as sale or gift as otherwise it would amount to violation of the Transfer of Property Act, 1892 and also the Indian Registration Act, 1908 and also Indian Succession Act, 1935. Further according to him, the order of the trial court that property in B schedule exclusively belongs to defendants 1 to 3 is erroneous as they have no independent income of their own and lost their rd father during 1968. Also according to them, the 3 defendant was a minor st when the property was purchased at Mysore i.e., B Schedule and 1 defendant has not entered the witness box. As such, adverse inference has to be drawn against them as per S.114(3) of the Indian Evidence Act and also relied upon the judgment of the Apex Court in the case of Vidhyadhar Vs Mankikrao & Anr - AIR 1999 SC 1441 in this regard.
13
It is the specific case of the learned senior counsel for the appellants that no where the question of nomination by the original owner is provided for and when the original owner dies, all the legal representatives are entitled for equal share in the property to which the original owner was entitled by way of re-conveyance. In this regard, he has relied upon the Division Bench judgment of this Court in the case of L V Hosalappa (since dead) by LRs Vs Bangalore Development Authority & Ors - ILR 2001 th KAR 1727. Accordingly, it is his submission that the plaintiff and the 4 th defendant are together entitled for 1/6 share and defendants 1 to 3 are rd rd entitled for 1/3 share as per the finding of the trial court and also 1/3 portion remained unapportioned. Plaintiff is entitled for 3/8th share in respect of A and B Schedule properties.
On the other hand, counsel representing defendants 1 to 3 and other defendants in RFA 2482/2007 has contended that the court below has not appreciated the evidence and admission of the plaintiff PW 1. In the cross- examination of PW1 she admits that she does not know in whose name these four sites - suit A schedule properties are standing and also about B 14 schedule properties. PW 1 is not aware as to what is the document produced by defendants 1 to 3 and the defense taken. She never denied the issuance of letter to the BDA by Gunda Setty to execute the sale deed in favour of defendants 1 to 3 and 6 & 7. When there is a clear admission that suit A schedule properties are her father's self acquired property, she pleads ignorance as to whether her mother Rajamma had any right in the suit A schedule properties. Even in respect of B schedule properties also the plaintiff pleads total ignorance. Rather she admits that B Schedule properties are in possession of defendants 1 to 3. It is stated, st Krishnamurthy the husband of 1 defendant and father of defendants 2 and 3 was doing business and out of the profit earned by him, part of B schedule property was purchased for and on behalf of defendants 2 and 3. Further, as per her own admission, there is an acquisition by Krishnamurthy. The entire property was acquired out of the income of late S G Krishnamurthy except that the name of Gunda Setty was there for name sake. Even there was a gift given by Gunda Setty to the plaintiff and th also some amount was given to the 4 defendant to purchase property at Mumbai and none of the properties were ancestral properties. The trial 15 court erred in considering the intention of Gunda Setty. The very fact that properties were reconveyed in favour of defendants 1 to 3 and 6 and 7 in exercise of right of re-conveyance exercised by Gunda Setty requesting the BDA to reconvey the sites to defendants 1 to 3 and other defendants in whose favour a registered sale deed has been executed, makes it clear that during the life time of Gunda Setty he had relinquished all rights in respect of three sites. The registration of the sale deed by BDA in respect of th defendants 1 to 3 and 6 and 7 is only a formality and the BDA / 5 defendant for its administrative reasons, has executed sale deed at the request of Gunda Setty. The relinquishment/conveyance/request to transfer the self acquired property of Gunda Shetty is on his own wish and love and affection. However, the trial court erred in holding that defendants were required to show that they have made any payment to BDA. The trial court has approved the property that has been allotted to defendants 6 and 7 as valid whereas defendants 1 to 3 are similarly placed but there is a different finding.
Both the parties have relied upon several judgments of this Court as 16 also the Apex Court in support of their contentions, which I would refer in the course of the judgment, if need arises.
In view of the rival submissions, the points that arise for consideration are:
Whether the trial court is justified in holding that plaintiff has proved that items 2 to 4 of the plaint A schedule property and portion of plaint B schedule property forms joint family properties acquired by Gunda Setty as such, plaintiff is entitled for share in the suit properties;
Whether the trial court is justified in holding that plaintiff has got a share in items 2 to 4 of the plaint A schedule and B schedule properties stating that they have been jointly purchased in the name of Gunda Setty and defendants 2 and 3;
Whether the trial court is justified in holding that defendants 1 to 3 are together entitled for 1/3rd share in the portion of the B schedule properties which was jointly purchased in the name of Gunda Setty and defendants 2 and 3;
Whether there is material on record that defendants prove that site Nos.57, 58 and 63 are the self acquired properties;17
Whether suit is bad for non-inclusion of the house properties held by plaintiff and the 4th defendant;
Whether plaintiff is entitled for any right, title and interest over the suit schedule properties and if so, to what extent.
At the outset, since on the point of jurisdiction the law is settled and since it is a suit for partition, based on the court fee also irrespective of the market value of the property since both sides have not disputed that this court could maintain the appeal and also as to the share that could be claimed by the plaintiff as on the date of filing the suit, that issue need not be once again re-agitated and discussed.
As per the stand of the plaintiff, Gunda Setty had purchased 1.00 acre of land from the Maharaja of Mysore which was acquired for formation of housing layout by the City Improvement Trust Board (CITB), Bangalore. Though Gunda Setty was not successful in the challenge to the said acquisition, but ultimately, the Government of Mysore came with a formula on such representations by the land owners, and by order dated 4.11.1961, the government agreed to reconvey the acquired lands to the 18 claimants by way of sites. According to the plaintiff, plot numbers 57, 58, 63 and 64 at RMV Extension, Bangalore was given to late Gunda Setty and it enured to her benefit she being one of the daughter of Gunda Setty, along with her brother and one more sister and mother and she is entitled for a share. So, she maintained that the property acquired by Gunda Setty at Mysore also in whose name the property is standing along with others, in that also she is entitled for a share as there is no partition in the family.
Learned senior counsel representing the plaintiff appellant has also submitted that the order passed by the 5th defendant/BDA conveying the property based on the letter of Gunda Setty is a non-est order and not binding on the plaintiff. Relying upon the Indian Registration Act, he contended that Gunda Setty did not convey the title in favour of the concerned defendants except the letter given by him to the BDA expressing his intention and that has been carried out as such, accordingly, the plaintiff has got a share in all the properties i.e., plaint A & B schedule properties. It is also submitted, the order of the trial court that one of the sites which was conveyed in favour of the 6th and 7th defendants is valid, cannot be 19 accepted. In order to pass title, there must be registration of the document by Gunda Setty. Mere letter given by Gunda Setty to the defendant BDA cannot hold water. The plaintiff has also pleaded that she was unaware of any of the transactions of Gunda Setty which are not validly transferred in accordance with the provisions of Transfer of Property Act and accordingly, learned senior counsel has sought for allowing the appeal.
It transpires in the year 1989 i.e., on 12.6.1989, Gunda Setty died leaving behind his wife Rajamma. The contention of the plaintiff is, she and her sister / 4th defendant and her brother S G Krishnamurthy (since deceased) and his wife and children (defendants 1 to 3) are equally entitled for a share. It is also the case of the plaintiff that her sister-in-law i.e., the wife of Krishna Murthy had assured to settle the issues and as such, she kept quite. She was also unaware of any of the transactions with regard to moveable properties. Rajamma the mother of the plaintiff died on 30.12.1994 leaving behind a Will in favour of the plaintiff and the 4 th defendant. There is said to be a settlement with regard to the property which was the subject matter of Will to be shared between plaintiff and the 20 4th defendant. It is also noted, acting upon the Will, Succession Certificate was obtained with reference to moveable properties of Rajamma and also according to the plaintiff, right of the plaintiff in the share of Rajamma cannot be disputed. She also being a legal heir of Gunda Setty, is entitled for 1/4th share in addition to the 1/8th share in the properties of Gunda Setty. It is the case of the plaintiff, since defendants 1 to 3 did not take any steps, she after issuing legal notice, got filed the suit. It appears, this Gunda Setty during the fag end of his life was staying with defendants 1 to 3 on the death of his only son Krishna Murthy. It is the pleading of the plaintiff, taking advantage of the stay of Gunda Setty with defendants, they got re- conveyed the properties in their favour without providing any share in the property of Gunda Setty to the plaintiff and the 4th defendant.
The claim of defendants 1 to 3 is, they have been given property by Gunda Setty by conveying the same by way of reconveyance by presenting a letter to the Commissioner of BDA to convey site No.63 to the 1st defendant Vasundara Krishna Murthy and site No.58 in favour of S K Dinesh and to transfer site No.64 in his own name. It is seen, as noted 21 above, on the representation given by the land losers in the acquisition proceedings which reached finality, an arrangement was entered into by granting four sites by the CITB/BDA. On the request of Gunda Setty in his first letter addressed, he has stated he lost his son in an accident, he was unable to approach the authority for possession certification. In another letter, it is stated by him, since he is aged 75 years and does not have any energy to take up construction on the sites reconveyed to him, he has expressed that site No.63 be given to his daughter in law Vasundara Krishna Murthy and site No.58 to his grandson S K Dinesh and that they can independently take up construction in the said sites as they have got source of their own. On such request accompanied by the death certificate of his son, the BDA has executed the deeds in their favour in respect of these two sites. The BDA addressed a letter to Gunda Setty on 30.10.1982 approving the transfer of site No.58 to S K Dinesh and site No.63 to Vasundara Krishna Murthy by resolution / order of the Commissioner on 16.10.1982 on payment of transfer fee of Rs.100/- each. However, it appears, in 1989 Gunda Setty died. Pursuant to the communication dated 30.10.1982, accepting the request of Gunda Setty, BDA itself has executed 22 the sale deed on 12.12.1994 in favour of S K Dinesh and also in favour of Smt Vasundara Krishna Murthy on 7.3.1995 and also according to defendants 1 to 3, they have taken possession and possession certificate is also given to them by the BDA after executing the sale deeds. Thus, on the basis of the order of reconveyance to land losers, sites were conveyed to Gunda Setty and in turn, on the request of the Gunda Setty, there was reconveyance of site Nos.58 and 63 in favour of defendants 1 to 3. This Gunda Setty retained only site No.64 in his name. On the death of Gunda Setty, pursuant to his request for transfer of those properties in favour of defendants 1 to 3, BDA has acted upon it. Thus according to the defendants, Gunda Setty conveyed his right and interest towards his daughter-in-law and grand children in site Nos.58 and 63.
Learned senior counsel representing the plaintiff, in this regard, has relied upon the citation in the case of Smt Sarbati Devi & Anr. Vs Smt Usha Devi - (1984) 1 SCC 424 to contend that as per S.39 of the Life Insurance Act, the Apex Court has held that nominees interest in the amount received under a policy when the assured dies intestate, it is subject to the 23 claim of the heirs of the assured under law of succession and accordingly, submitted that the letter of request of Gunda Setty to the 5 th defendant/BDA (willingness of Gunda Setty to convey his right to defendants 1 to 3) and in turn, the conveyance in favour of defendants 1 to 3 appears as if defendants 1 to 3 stand as nominess and as such, would be subject to law of succession. Accordingly, it is contended that mere expression of Gunda Setty will not convey any title in favour of defendants 1 to 3 through the 5 th defendant in the absence of any such registration during the life time of Gunda Setty, it is also hit by the provisions of the Indian Registration Act under S.17.
Per contra, counsel representing the respondents/defendants 1 to 3 submitted, the Full Bench in its judgment in the case of Simon Thomas Vs State Bankof Travancore - 1976 KLT 554 has observed, that though S.130 of the Transfer of property Act enjoins transfer of actionable claim to be effected only by execution of instrument in writing and signed by the transferor or duly authorised agent, the section does not insist on any particular words being used or any particular from to be adopted. It is his 24 submission, as per the Full Bench decision, under S.130 of the Act, assignment of an actionable claim by way of security is permissible. Whatever has been conveyed is as per the wish of Gunda Setty and being carried out by the 5th defendant. The deed of reconveyance can only be termed as a contract for sale. It is in the form of an agreement and does not create any interest in the property and requires execution of the document for transfer of title. It is also submitted that the deed of reconveyance should not fall within the mischief of S.17 of the Registration Act and it does not require to be registered nor it requires any attestation. Accordingly, he has relied upon the judgment of the Allahabad High Court in the case of Nawal Singh Vs Panchiya Ram (dead by LR) & Anr. - AIR 1983 Allahabad 1.
The stand of the learned counsel representing the respondents/defendants is that under S.39, the Life Insurance Act provides for such invoking of succession and nominees right is only limited and that citation is not clearly applicable to the case on hand. Further, what is being noticed is only site No.64 is sought to be retained by Gunda Setty as per his 25 wish throughout. That could be subject matter wherein plaintiff can very well seek for a share.
So far as property at Mysore is concerned, it is the specific case of the defendants that, late Krishna Murthy was doing business and out of affection, his father stayed with them and they have purchased the property out of the amount which he had saved, in the name of defendants 1 to 3 and the name of Gunda Setty is included out of affection and there is no source of income as such available to Gunda Setty as such, plaintiff or the 4 th defendant cannot seek any share in the property and Gunda Setty was only a name lender and being the grand father of defendants 2 and 3, his name is included as guardian and the property at B schedule at Mysore cannot be made available for partition.
According to defendants 1 to 3, this 4th defendant colluded with the plaintiff and hatched a plan to file the suit. It is also the specific case of defendants 1 to 3, plaintiff's husband has time and again requested for funds from Gunda Setty for construction of house at Chennai and he has 26 written many letters and now and then Gunda Setty has funded the amount for construction of the house of plaintiff where she is residing. On the other hand, it is contended that, that property should also be subject matter of partition if the plaintiff insists to but, she has not included that property as such, on that count also, suit should fail. It is to be noted, the 4 th defendant's husband has admitted that late Gunda Setty has funded them to purchase a flat at Mumbai i.e., flat No.402. It is stated, already properties were settled by Gunda Setty by financing the plaintiff and the 4 th defendant by helping them to build house and purchase a flat as such, they have no claim over the plaint schedule properties and it is only an afterthought by plaintiff and the 4th defendants to knock of the property which was settled by Gunda Setty and it was his self acquired properties.
It is further stated, so far as plaint B schedule property is concerned i.e., house No.608 in Vasanth Mahal Road, Nazarbad, Mysore, it was purchased in two installments. At that time, the 2 nd defendant was a minor and having lost his father, it was purchased out of the savings and earnings of deceased Krishna Murthy in the name of 2 nd defendant and Gunda Setty 27 was taken as a guardian and property was purchased including the name of Gunda Setty. The second item of B schedule property i.e., 680/1 was also purchased in two parts and two separate sale deeds and that is also purchased in the name of 3rd defendant lending the name of Gunda Setty as the 3rd defendant was also a minor and another portion was also purchased in the name of 3rd defendant indicating the name of the 1st defendant.
It is also seen, there were some huge stocks and fixed deposits in the name of late S G Krishna Murthy, the father of defendants 2 and 3 and in the year 1968, the amount were realized through the shares by filing a succession certificate and out of the huge amount obtained, they purchased the property. Also, according to defendants 1 to 3, on the death of Krishna Murthy as there was no elderly person for guidance, solace and comfort, they stayed with Gunda Setty and they were acting as per the instructions of gunda Setty. As per the direction of Gunda Setty, this property - B Schedule Properties were purchased in the name of 3 rd defendant mentioning the name of Gunda Setty as he was a elderly person in the family and the sale consideration was paid by the 1 st defendant out of the 28 funds realized on the death of her husband in the accident and also by realizing the stocks and fixed deposits and also according to the defendants, they had even sufficient amount to purchase some other property. Only for reverence, these items in B Schedule were purchased in the name of defendant 2 and 3 lending the name of Gunda Setty as such, it is not the property of the joint family or that of Gunda Setty.
Further, there is a clear admission on the part of the plaintiff also that Krishna Murthy was doing business and that defendants 1 to 3 have got profits and benefits out of the business belonging to Krishna Murthy. She has also pleaded ignorance as to how long since the B schedule property is standing in the name of defendants 1 to 3. Plaintiff has also pleaded ignorance that defendants 1 to 3 have purchased the property in B schedule out of the income and benefit from P & SC case filed by Rajamma. But, she admits that when Krishna Murthy died, defendants 1 to 3 were minors though she has denied that her father has contributed towards purchase of property by her in Chennai but, she admits that her father has given Rs.5,000/- as a gift. She pleads ignorance as to how much money is given 29 to the 4th defendant for purchase of the property at Mumbai. This also depicts that there was contribution by Gunda Setty during his lifetime for the purchase of the house by plaintiff as well as the 4th defendant.
As per the stand of the BDA also, on the request of Gunda Setty, one of the property in Sy.No.57 was transferred in the name of defendants 6 and 7 on the approval given by the Commissioner for BDA. It is seen, as per the say of defendants 6 and 7, on the directions of Gunda Setty BDA conveyed the property to them and amount was paid by them to the BDA as per Gunda Setty's direction on his behalf and in turn, BDA has executed the sale deed. There is a resolution passed in this regard and an amount of Rs.11,2000 and 16,009/- was paid through challan to the 5 th defendant . The stand of the BDA is that site No.57, 68 and 63 have been conveyed to defendants 1 to 3 and defendants 6 and 7 respectively as per the written request of Gunda Setty for which there is no objection at that relevant point of time. The trial court while approving the fact of conveyance of site no.57 in favour of defendants 6 and 7, has not given any reason as to why it has rejected the claim of defendants 1 to 3 in respect of site Nos. 68 and 30 63 which also stands on the same footing and also in the citation referred supra regarding actionable claim, it is stated to be in the form of an agreement to sell for which there is no registration required and only as per the wish of Gunda Setty, his self acquired properties have been conveyed to defendants 1 to 3 and 6 and 7 respectively which cannot be held to be either illegal or not in accordance with law. So far as conveyance to defendants 1 to 3 is concerned, it is in the form of Will of late Gunda Setty and it has been succeeded by way of testamentary succession.
However, in respect of site No.64, the plaintiff and 4 th defendant can very well set up their claim and also in the background explained when there is said to be admission of the husband of the 4 th defendant that Gunda Setty has funded their purchase of flat, it appears during his lifetime Gunda Setty was equally taken care of all his children viz., the plaintiff, 4 th defendant and the interest of the wife of his son i.e., daughter in law and that of his grandchildren.
It appears as per the request of Gunda Setty during 1964, site 31 Nos.57, 58 and 63 were to be conveyed in favour of defendants 6 and 7 and defendants 1 to 3 respectively and resolution is also passed by the Commisisoner, BDA at an undisputed point of time accepting the request of Gunda Setty as such, S.39 of the Act is not applicable and the decision relied upon by the counsel for the plaintiff/appellant on Hoslappa's case cited supra, does not apply to the case on hand. According to the counsel for the appellant the word 'reconvey' in S.38 C of the BDA Act presupposes that the to person to whom allotment is made should be an erstwhile owner whose land has been acquired and in which the site to be reconveyed has been formed. This judgment is not squarely applicable to the case on hand. In the case on hand, such resolution is also passed much earlier to the enactment of the Act.
Counsel representing defendants 1 to 3 has relied upon the decision in the case of Kalyan Singh Vs Smt Chhoti & Ors - AIR 1990 SC 396 to contend that it is open to the court to look into the surrounding circumstances as well as inherent improbabilities while answering all the issues to reach a proper conclusion on the nature of evidence adduced by 32 the party and also to contend that the material evidence on record and the conduct of Gunda Setty in conveying the property in favour of defendants 1 to 3 and 6 and 7 also at an undisputed point of time, has to weigh and also there is an admission that 4 th defendant and plaintiff were given some substantial amount at the time of purchase and construction of house respectively. Further, the property has been long back conveyed as per Gunda Setty's wish and those properties which were disposed of at an undisputed point of time are his self acquired properties i.e., A schedule and cannot be called in question by the plaintiff and also her conduct depicts that only as an after thought she has filed a suit for partition for unlawful gain which discourages her from seeking partition.
As per S.10 of the Transfer of Property Act, absolute assignment as well as assignment by way of security were both permissible as per the judgment of the Kerala High Court i.e., in Simon Thomas case and it is uniformly valid and applied in India. This fact depicts that Gunda Setty has conveyed his right in favour of defendants 1 to 3 and 6 and 7 and it cannot be held to be invalid in law and requires compulsory registration since it is 33 very much in writing by Gunda Setty during his life time by way of actionable claim requesting the BDA to carry out his intention to transfer actionable claim to defendants 1 to 3 and 6 and 7.
Counsel for the appellant/plaintiff has relied upon the decision in the case of Radhamm Vs Lakshmamma K Murthy - ILR 1995 3249 to contend that reconveyance is unheard of in the scheme of land acquisition. The said citation is not applicable in the facts and circumstances of the case on hand. Further, the Division Bench judgment in the case of S Vasudea Vs Govt. of Karnataka & Ors - 1999(1) KLD 349 regarding scheme of the BDA regarding allotment and other violations are not applicable to the case on hand and the decision in Y R Mahadev Vs K Dayalan - 1997(4) KLJ 264 is also not applicable to the case on hand as at the relevant point of time, there was allotment and reconveyance and by virtue of the then CITB Act, property was reconveyed to the land owner and in turn, it is executed pursuant to the decision made earlier, as per the wish of the land owner Gunda Setty. The conveyance made in favour of defendants 1 to 3 and 6 and 7 as per the wish of Gunda Setty cannot be held to be in violation of the 34 provisions of the BDA Act and the Act cannot be made applicable with retrospective effect. The conveyance if any, is pursuant to the decision taken earlier by the Commissioner on the request of Gunda Setty and it remained unchallenged at that point of time by the plaintiff or the 4 th defendant.
In the case of Yogambika Vs Narsingh - ILR 1992 KAR 717, in this context, the Division Bench of this Court has held that it is well settled that where by statute, property is not transferable without the permission of the authority, agreement to transfer the property must be deemed subject to the implied condition that the transferor will obtain a sanction of the authority concerned. Rule 18 of the City of Bangalore Improvement (Allotment of Sites) Rules, 1972 provides that the purchaser shall not alienate the site within a period of ten years from the date of allotment except mortgage in favour of the Government of India, and the Rule did not come in the way of granting a decree for specific performance.
By the very ratio laid down by this Court it could be seen, the object 35 of law is to enforce the contract and also emphasize on the sanction/permission of the authority. Gunda Setty had applied for reconveyance and transfer of these sites in favour of defendants 1 to 3 and 6 & 7 and had expressed his intention way back in the year 1963 itself to the 5th defendant / BDA. When he sought for permission, relaxing the condition, 5th defendant has taken a decision to convey the properties in question as per the wish of Gunda Setty in favour of other defendants.
Though registration is compulsory, it is not as if without registration such properties are transferred. The BDA based on the wishes of Gunda Setty executed the sale deeds on collecting the registration fee and such transfers cannot be said to be illegal or impermissible. In the circumstances, the plaintiff cannot contend that transfers made by Gunda Setty in favour of defendants 1 to 3 and 6 & 7 expressing his wish and requesting the BDA to convey the properties directly in their name is very much permissible and rightly, the 5th defendant has conveyed and it is also not disputed that these properties are the self acquired properties of Gunda 36 Setty and transferred at his request, during his life time. The same cannot be held to be illegal.
The reasoning given by the trial court is to the effect that plaintiff was aware of the fact that site No.57 described in the plaint A schedule was purchased by defendants 6 and 7 from Gunda Setty through the 5 th defendant wherein as per the stand of defendants 6 and 7, 5 th defendant agreed to reconvey the site to Gunda Setty and he was required to pay Rs.11,200/- towards layout charges and another Rs.16,009/- being the refund amount of proportionate sum of compensation which these 6th and 7th defendants have paid to the BDA. On that basis, the 5 th defendant passed a resolution as per the wish of Gunda Setty to convey the same to defendants 6 and 7 and later got executed the sale deed in their favour. This claim of defendants 6 and 7 was known to the plaintiff and she has not taken any objection. More over, it is also not standing in the name of Gunda Setty nor was re-conveyed to him. The property being the self acquired property of Gunda Setty and when he has expressed his will/willingness to convey it to defendants 6 and 7, the trial court of course 37 is justified in accepting the conveyance of site No.67 as per the wish of Gunda Setty in favour of defendants 6 and 7 by the BDA. Similarly, it should have also found favour for settlement of the properties at an undisputed point of time, in favour of defendants 1 to 3 in respect of site No.58 and 63. But, by erroneous reasoning, it has held that this property was also to be made available for partition which finding is hereby set aside.
So far as B Schedule property is concerned, the trial court opined that Gunda Setty died intestate as such, plaintiff and defendants 1 to 4 being the legal representatives of Gunda Setty, are entitled for a share in that on the ground that they are jointly purchased in the name of Gunda Setty and defendants 1 to 3, which is without application of mind and without considering the fact that on the death of Krishna Murthy his only son, some amount has been realized from the stocks and fixed deposits and that was made use of by the 1st defendant to purchase the property in the name of 2 nd defendant and that Gunda Setty only lent his name to be included as he was an elderly man having wordly wisdom and as a natural guardian. In this 38 regard, the 1st defendant has vividly explained and also the funds that was available also has been explained by her as such, the finding of the trial court that B schedule items 1 and 2 should be made available to plaintiff and defendant 4 also cannot be accepted. Accordingly, the said finding is reversed.
In the reasoning given by the trial court, it has observed that properties were purchased exclusively in the name of 2nd and 3rd defendants and also having held that plaintiff has failed to produce evidence that the said portion was purchased by Gunda Setty and also that documentary evidence shows that portion of B Schedule property were purchased by defendants 2 and 3 exclusively and though it has held that plaintiff has not produced any reliable evidence to show that Gunda Setty has purchased the other portion of B schedule property registered in favour of defendants 2 and 3, strangely it has answered the issue in favour of plaintiff which is erroneous. Accordingly, the said finding is also set aside.
Since site No.64 is said to be registered in Gunda Setty's name, that 39 alone can be made available, if it is not disposed of by Gunda Setty during his life time, for the purpose of partition and claim by plaintiff and 4 th defendant along with defendants 1 to 3.
Thus, in nutshell, it has to be held that the conveyance of A schedule property in favour of defendants 1 to 3 and 6 and 7 at the instance of Gunda Setty father of the plaintiff and 4th defendant, is not invalid or illegal in view of the letters which are written are in the form of actionable claim/will and what is conveyed is the self acquired properties of Gunda Setty.
Further, so far as disposal of A schedule properties i.e., site Nos.57, 58 and 63 by Gunda Setty himself in favour of defendants 6 and 7 and 1 to 3 by conveying his intention to transfer is concerned, the BDA having obliged the request at an undisputed point of time, has approved and it is being carried out subsequent to the death of Gunda Setty, as per his wishes. Of course, the transfers may need registration as per the Indian Registration Act but the transfers as mentioned above, is in the form of testamentary 40 succession by carrying out the will of the testator. Since it is the self acquired property which is disposed of, after the death of Gunda Setty, then necessarily, the plaintiff or the 4th defendant cannot reopen the issue claiming that they have got a right in the said properties.
So far as B schedule properties are concerned, the trial court also failed to take note of the fact that on the death of Krishna Murthy, funds were realized through stocks and fixed deposits which is his property and since defendants 2 and 3 were minors and 1st defendant being the widow, had to fall back for shelter on Gunda Setty and since they were residing with him, the name of Gunda Setty if entered jointly along with defendants 2 and 3, is only as a name lender as an elder member of the family and, defendants 1 to 3 have discharged their burden regarding the source of income that was available to 1st defendant and also as per the wishes of Gunda Setty, he being the grand father of defendants 2 and 3, the properties were purchased in their name and it cannot be held that item B schedule properties are joint family properties. It is made clear that Gunda Setty had no right or interest in the B schedule property. As such, defendants *2 and 3 * Added vide chamber order dated 27.5.2013 41 are the absolute owners in possession of the property in B Schedule over which plaintiff or 4th defendant has no right.
Further, it is noticed there is said to be contribution to the purchase of house by the 4th defendant and construction of house by the plaintiff, although partly admitted, at the relevant point of time the contribution is by way of substantial amount by Gunda Setty out of his interest and savings thereby, the interest of plaintiff and 4th defendant is also taken care of. As noted above, site No.64 since it was retained by Gunda Setty, if it is not alienated, could be made available for partition.
With the above observation, the appeal filed by defendants 1 to 3 (RFA 2482/2007) is allowed and the appeal filed by the plaintiff (RFA 78/2008) is dismissed. No costs.
Sd/-
Judge An