Karnataka High Court
Sri Gavi Rangaswamy vs Sri N R Bhadrachalam on 26 August, 2014
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF AUGUST 2014
BEFORE
HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
REGULAR FIRST APPEAL NO.1829 OF 2011
BETWEEN:-
SRI. GAVI RANGASWAMY
S/O LATE RAJAPPA
AGED ABOUT 60 YEARS
R/AT NO.271, 7TH CROSS
6TH BLOCK, NAGARABHAVI 2ND STAGE
BANGALORE-560 072.
... APPELLANT
(By Sri: M. ASWATHANARAYANA REDDY, ADV.)
AND
SRI. N.R. BHADRACHALAM
S/O LATE RAJAPPA
AGED ABOUT 50 YEARS
RESIDING AT No.3362, 13TH CROSS
2ND MAIN ROAD, SHASTRY NAGAR
NEW K.R. ROAD, BANGALORE-560028.
... RESPONDENT
(By Sri: K. VISHWANATHA, ADV. FOR
Sri: T.V. NANJE GOWDA, ADV.)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 20.8.2011 PASSED IN O.S.
No.7482/2008 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS RFA HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
PRADEEP D. WAINGANKAR J., PRONOUNCED THE FOLLOWING:
2
JUDGMENT
This appeal is against the judgment and decree dated 20/8/2011 in O.S.No.7482/2008 on the file of XXXVIII Addl. City Civil Judge, Bangalore City, whereby the suit filed by the plaintiff for partition and separate possession for his ½ share in the suit property came to be decreed.
2. The brief facts which gave rise to this appeal are stated as under:-
The appellant (who shall hereinafter be called as the 'defendant') is the elder brother of respondent(who shall hereinafter be called as 'plaintiff'). The case of the plaintiff is that plaintiff and the defendant are the native of Nagaraghatta village of Tiptur Taluk, Tumkur District. They came down to Bangalore for the purpose of their employment alongwith another brother viz., N.R. Ramesh, who settled at Bangalore. The plaintiff and the defendant had no house of their own in Bangalore. Therefore the plaintiff applied for BDA for allotment of a house site. Since the defendant being his elder brother, he made an application in the name of the defendant 3 for allotment of a residential site. Accordingly, the site was allotted in the name of the defendant-his elder brother in the year 1987 bearing site No.271 measuring 40'-East to West and 30' -North -South. The entire consideration was paid by the plaintiff to the BDA. Thus the plaintiff and defendant became the joint owners of the site, which is shown as schedule 'A' property in the plaint. There was an understanding between the plaintiff and the defendant and other family members regarding the sharing of the site in equal proportion. A settlement was arrived at between the plaintiff and defendant in the presence of other family members, whereunder the defendant being elder brother was permitted to construct a house in ½ of the schedule site. Accordingly, the defendant constructed his house leaving behind the ½ portion for the plaintiff to put up construction of his residential house. In order to put up construction, the plaintiff approached the defendant to transfer the ½ share in 'A' schedule property which is shown as 'B' schedule property in the name of the plaintiff, so as to enable him to raise loan from financial institutions. But to the surprise of the plaintiff, 4 the defendant refused to transfer the ½ portion of the site. The plaintiff got issued a notice calling upon the defendant for partition and separate possession of his half share in the schedule 'A' property in favour of the plaintiff. Since the defendant declined, the plaintiff filed a suit for a decree of partition and separate possession of his ½ share in 'A' schedule property.
3. The defendant resisted the suit. In his statement of objections, the defendant has denied all the material averments made out in the plaint as to the acquisition of the site in the joint name of the plaintiff and the defendant or for that matter, that it is the plaintiff who paid the entire consideration to BDA. The defendant has also denied the so- called settlement deed said to have been executed by the plaintiff and the defendant. It is alleged that because of the shortage of funds, the defendant could not construct the building over the entire site though he has constructed a compound all around the site. It is specific case of the defendant that it is his self-acquired property and the plaintiff is in no way concerned to the schedule site nor he has paid 5 any amount towards consideration of the said site and hence the defendant sought for dismissal of the suit.
4. Based on the pleadings of the parties and upon going through the documents, the Trial Court framed the following issues:-
• Whether plaintiff proves that he and defendant are joint owners of suit schedule 'A' property?
• Whether plaintiff proves that he is entitled to ½ share in the suit schedule property? • Whether defendant proves that suit schedule 'A' property is his self-acquired property? • Whether Court fee paid on the plaint is proper and sufficient?
• Whether plaintiff is entitled to the relief sought for?
• What decree or order?
After framing of the issues, the plaintiff in order to prove his case, got herself examined as PW-1 and four other witnesses as PW-2 to PW-5. Ex-P1 to P32 came to be marked. The defendant on the other hand examined himself as DW-1 and marked Ex-D1 to D28. The Trial Court upon hearing the 6 arguments and upon appreciation of the entire evidence placed on record by impugned judgment and decree recorded a finding that the schedule property is the property jointly acquired by the plaintiff and the defendant and therefore the plaintiff is entitled for partition and separate possession of ½ share in the schedule property.
5. Dissatisfied with the decree passed in favour of the plaintiff for partition and separate possession of ½ share in 'A' schedule property, this appeal is preferred by the defendant on the ground that the Trial Court committed an error in recording a finding that the schedule property is the property of the plaintiff and the defendant; that the Trial Court has erred in placing reliance upon a settlement deed in relation to the schedule property entered between the plaintiff and the defendant; though it is not registered, that the schedule property is self-acquired property of the defendant and defendant alone.
7
I have heard the arguments addressed by both the learned counsel appearing for the appellant-defendant and the respondent-plaintiff. Perused the records.
6. Learned counsel for the appellant would submit that the schedule property is the property acquired by the defendant, the Trial Court erred in coming to the conclusion that it is the property acquired by the plaintiff and the defendant jointly and that there has been a settlement between the plaintiff and the defendant in the presence of other family members. He would further submit that the Trial Court without proper appreciation of the evidence has passed the impugned judgment and decree which are not sustainable in law. Hence, he sought to set-aside the judgment and decree and to dismiss the suit filed by the plaintiff.
7. On the other hand, learned counsel appearing for the respondent-plaintiff would contend that though the schedule property stands in the name of the appellant-defendant, it was in-fact purchased by the plaintiff, who paid the entire sale consideration and there was an understanding between the 8 plaintiff and the defendant and in pursuance of the understanding, a settlement was arrived at between the plaintiff and the defendant in relation to the schedule property in the presence of other family members, whereunder ½ share has been allotted to the plaintiff and ½ share to the defendant and they were permitted to put up their own construction in the portion allotted to them. The Trial Court upon going through the documentary evidence for having paid entire sale consideration by the plaintiff and after going through the contents of the settlement deed and oral evidence of PWs-2, 3 and 4- the sister, brother and mother of the parties to the suit has rightly recorded a finding that it is the property jointly acquired by the plaintiff and the defendant which resulted in a decree for partition and separate possession of ½ share in favour of the plaintiff, that there is absolutely no merit in the appeal filed by the appellant and hence learned counsel for the respondent plaintiff sought for dismissal of the appeal.
8. In view of the submission made by both the learned counsel appearing for the parties and upon perusal of the 9 material on record, the following points arise for my determination:-
• Whether the finding recorded by the Trial Court that the schedule property is the property jointly acquired by the plaintiff and the defendant is sustainable in law?
• Whether the plaintiff is entitled for ½ share in the schedule property?
Point No.1:-
It is the specific case of the plaintiff that he applied for BDA site in the name of his elder brother-defendant and it is he who paid the entire sale consideration for the purchase of the site. On the other hand, it is the case of the defendant that it is his self-acquired property purchased by him out of his own funds. The plaintiff, who is examined as PW-1 reiterated the case made out by him in the plaint, even in his evidence. So also, the defendant who has been examined DW-
1 has reiterated his case made out by him as to the 10 acquisition of the schedule property. Apart from oral evidence, the plaintiff has produced the documents for having applied for site in the name of defendant and for having paid the consideration amount to the BDA. Ex-P3 is the acknowledgment for having received an application dated 16.2.1987 by the BDA. Ex-P2 is the receipt for having paid Rs.1,300/- to BDA towards application fee. Ex-P1 is the allotment letter dated 14.11.1987 for having allotted a site bearing No.271 in the name of the defendant-
Gavirangaswamy. Ex-P4 is the copy of the challan for having remitted an amount of Rs.18,650/- to the BDA on 8.8.1988 in the name of the defendant out of the bank account of the plaintiff towards full cost of the site. Ex-P5 is another receipt for having remitted Rs.1711/- to the BDA. Under both these receipts Ex-P4 and P5, the amount has been paid through Canara Bank, BDA Extension counter, K.P. (West), Bangalore through account of the plaintiff in Canara Bank. Ex-P6 is the settlement deed dated 16.9.1998 entered between the plaintiff on one hand and defendant on the other hand, in the presence of other family members, whereby the schedule 11 property has been divided and ½ share has been given to the plaintiff, which is shown as 'B' schedule property in Ex-P6. Ex- P6 is not only signed by defendant Gavirangaswamy and the plaintiff N. R. Bhadrachalam, but also two witnesses viz., Veena and N. R. Ravish, who are none other the brother and sister of the plaintiff. Ex-P7 is the registered notice dated 7.5.2008 issued to the defendant by the counsel for the plaintiff. Ex-P8 is the postal acknowledgment for having sent notice to the defendant. Ex-P9 is returned RPAD cover wherein notice was sent to the defendant. Ex-P10 is the possession certificate issued in favour of the defendant by the BDA. Ex-P11 is the khatha certificate in respect of Site No.271 issued by Revenue Inspector dated 21.2.1991 in the name of the defendant. Ex-P12 is the photograph of the schedule property. It is seen from Ex-P12, in the ½ portion, the construction has been put up by the defendant and ½ portion is vacant. Ex-P14 is an endorsement issued by Revenue Inspector, Nagarabhavi Sub-division, BBMP Office of site No.271. Ex-P15 is the death certificate of Rajappa, the father of the plaintiff and the defendant. Ex-P16 is the letter issued 12 to Bhadrachalam-the plaintiff by the Canara Bank, Sarakki layout branch, Bangalore confirming that the plaintiff obtained a Demand draft No.508410 from the Canara Bank through his S.B. Account No.13431 in favour of the Chairman, BDA for Rs.18,650/- on 6.8.1988. Ex-P17 is another letter dated 18.7.2011 for having purchased Demand Draft on the same account by the plaintiff for Rs.1,711/- on 20.2.1990. Thus from these two certificates issued by the Canara Bank, it is abundantly clear that the entire sale consideration towards site No.271 was paid by the plaintiff. The defendant has not at all paid the sale consideration. Therefore, as rightly contended by the plaintiff, it is the plaintiff, who purchased the schedule site in the name of his elder brother-the defendant. Even though the plaintiff purchased the site out of his own funds, he is magnanimous to say that he has not filed this suit to declare him as the real owner of the entire property. As such, the decision relied upon by the learned counsel for the appellant reported in AIR 1992 Supreme Court 885 (OMPRAKASH & ANOTHER Vs. JAI PRAKASH) which is on 13 Section 4 of Benami Transactions (Prohibition) Act, (1988) cannot be made applicable to the facts of the case.
The learned counsel for the defendant/appellant argued before me that Ex-P6 the so-called settlement deed is infact partition deed and since it is not registered, it is not admissible in evidence, even for collateral purpose. In support of his submission, he relied upon a decision in the case of K. DINESH vs. KUMARASWAMY & ORS. reported in 2010(4) AIR KAR 647 wherein in head note 'A', it is held as under:-
(A) Karnataka Stamp Act(34 of 1956), S.34, Art.5(e) - Civil P.C. (5 of 1908), O-13, R.8-
Document not duly stamped-Admitted in evidence- without any objection being raised- Court is not obliged to act upon or enforce it for all purposes thereafter, without requirement of payment of duty and penalty-Court cannot direct execution of a sale deed in specific, performance of an agreement of sale, when agreement is not duly stamped."
The learned counsel also placed reliance on the decision in the case of PILLA MUNIYAPPA & OTHERS Vs. H. ANJANAPPA 14 AND OTHERS reported in 2011(2) KAR.L.J. 458 in wherein it is held as under:-
"REGISTRATION ACT, 1908, Section 17(2)- Civil Procedure Code, 1908, Section 100-Suit for declaration dismissed by both the Courts below-On facts-Panchayat Palupatti was effected and was reduced to writing on 20.2.1990-Whether the document produced as Exhibit P.2 was a memorandum of partition or it is to be construed as a partition deed, and whether it was invalid for want of registration and therefore inadmissible in evidence."
If upon going through the contents of Ex-P6- the settlement deed, if Court comes to the conclusion that it is infact a partition deed and since it is not registered, though it is compulsorily registrable deed under Section 17(2) of the Registration Act, 1958, it was inadmissible in evidence and could not have been relied upon by the Trial Court, even for collateral purpose.
In order to know the nature of document Ex-P6 and its purpose, the document as a whole is reproduced as under:- 15
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Thus from reading the content of the document, it is manifest that though it is styled as settlement deed, it is nothing but a partition deed, whereunder ½ share of the schedule property has been allotted to the share of the plaintiff. Since it is not registered, it is not admissible in evidence and as such, could not have been relied upon the Trial Court, merely because, it is marked in evidence. The aforesaid decisions relied upon by the Counsel for the appellant is rightly applicable to the facts of the case.
If Ex-P6 is taken out as inadmissible document, even then the plaintiff has established that the property was acquired by him in the name of his elder brother-defendant by cogent and convincing evidence i.e., by production of Ex-P-16 and P-17 and the oral evidence of his sister, brother and mother-PW3, 4 and 5.20
As against the evidence placed on record by the plaintiff, document produced by the defendant are the khatha certificate, tax paid receipts, the copy of the assessment register, encumbrance certificate, possession certificates issued by BDA, licence issued by City Corporation, approved plan etc. There is no dispute that all these documents are standing in the name of the defendant. Even the sale deed Ex-
D11 dated 8.1.2000 is executed by the BDA in favour of the defendant. All these documents produced and marked by the defendant as per Ex-D1-D27 are not at all disputed by the plaintiff. It is a fact that the property was purchased in the name of the defendant, but the entire consideration was paid by the plaintiff. The defendant failed to establish by cogent evidence for having paid consideration amount. Therefore, for all purposes, it is the property jointly acquired by the plaintiff and the defendant. If that is the case, the plaintiff is entitled for ½ share in the schedule property shown as 'B' schedule.
The Trial Court upon proper appreciation of evidence has rightly come to the conclusion that it is the joint property of the plaintiff and the defendant, who are entitled for equal 21 share. The defendant has already put up construction over the ½ portion of the property and therefore the plaintiff is entitled for partition and separate possession of ½ share in 'A' schedule property, which is shown as 'B' schedule property by metes and bounds. There is no merit in this appeal.
9. Hence, I pass the following order:-
Appeal is dismissed.
The judgment and the decree passed by the Court below are hereby confirmed.
Sd/-
JUDGE *mn/-