Karnataka High Court
Master Daivik P. Mudugal vs M P Praveen S/O M.Prakash on 21 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21st DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100245 OF 2015
BETWEEN:
MASTER DAIVIK P.MUDUGAL
AGED ABOUT: 05 YEARS,
R/BY NATURAL MOTHER SMT.ASHAPRAVEEN,
W/O. M.P.PRAVEEN,
AGED ABOUT 32 YEARS,
OCC: SINECURE,
R/O: C/O. K.N.PAPAYYARAJU, NO.489/2,
4TH MAIN, RAM AND COMPANY CIRCLE,
P.J.EXTENSION, DAVANAGERE-577001.
...APPELLANT
(BY SRI.DINESH M.KULKARNI, ADVOCATE)
AND:
1. M.P.PRAVEEN
S/O. M.PRAKASH,
AGE: 33 YEARS, OCC: BUSINESS,
R/O: 4TH WARD, PATEL NAGAR,
HOSAPET, 583201,
DISTRICT BALLARI.
2. SRI.K.V.SURENDRA
S/O. K.N.VEERABHADRACHAR,
AGE: 50 YEARS,
R/O: 15TH WARD AMARAVATHI,
VENKATESHWARA TEMPLE AREA,
HOSAPET, 583201,
DISTRICT BALLARI.
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3. S.BASAVARAJ
S/O. SALI SHARABAIAH,
AGE: 43 YEARS,
31ST WARD, GANDHI COLONY,
HOSAPET, 583201,
DISTRICT BALLARI.
...RESPONDENTS
(BY SRI.JAYAWANT SAVAGAON, ADVOCATE FOR R1;
SRI.R.S.RAVI, SENIOR COUNSEL FOR
SRI.SHARANABASAVRAJ C., ADVOCATE FOR R2;
SRI.KUSHAL N.KAMBLE, ADVOCATE FOR R3)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED
25.07.2015 PASSED IN O.S.NO.44/2012 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, HOSPET, DISMISSING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS RFA HAVING BEEN HEARD AND RESERVED ON
18.12.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
2. The parties are referred in their original ranking as plaintiff and defendants as before the Trial Court in order to avoid confusion and also for the convenience of this Court.
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3. The factual matrix of case of the plaintiff before the Trial Court while seeking the relief of partition and separate possession and to declare that sale deed executed by defendant No.1 in favour of defendant Nos.2 and 3 is null and void and not binding on the plaintiff. It is contended that the plaintiff is the son of the 1st defendant. The suit is filed through the natural guardian mother by the minor plaintiff contending that the defendant No.1 is not looking after the plaintiff and his mother. The father of defendant No.1 by name Prakash succeeded to some immovable and movable properties by virtue of partition deed dated 03.01.1992. Later there was another partition between the parents of defendant No.1 and defendant No.1 on 28.01.2001. The suit schedule 'B' property is the ancestral property allotted to the share of defendant No.1 in the said partition.
4. It is alleged in the plaint that 1st defendant is addicted to bad habits and he is not taking care of plaintiff and mother of plaintiff from the date of marriage and also not taken care of welfare of mother of plaintiff. He used to come to the house late in the night by consuming alcohol 4 and on several occasions, he assaulted the mother of the plaintiff and caused injuries. He has not even provided basic needs to the mother of plaintiff. He was also spending money in a lavish manner without proper earnings. During 2009, plaintiff's mother had been to Davanagere for delivery of baby, at that time, the birth of plaintiff was intimated to the defendant No.1. The defendant No.1 never came to see the baby to Davanagere. The intention of defendant No.1 is to see that, the mother of plaintiff or minor plaintiff should be deprive of their legitimate share in respect of 'B' schedule property. The defendant No.1 has sold 'B' schedule property to defendant No.3 without consent from plaintiff's mother or other family members. Hence, the sale is not binding on the plaintiff. Now, the defendant Nos.2 and 3 are also making hectic efforts to alienate the property and hence the suit filed by the plaintiff praying ½ share in the suit 'B' schedule property.
5. In pursuance of suit summons, defendant No.1 has filed written statement, wherein he has admitted that suit 'B' schedule property is the ancestral property fallen to 5 his share in terms of the partition. He was also doing oil trading business and because of fluctuation and global recession, he incurred huge monitory loss. In order to overcome this monitory loss, he has made several attempts to discharge outstanding debts by availing financial difficulties from institutions and Private financiers also. He faced financial difficulties and inspite of his efforts of convincing his wife, she deserted and went away to parental house. He has made several efforts to bring back his wife, but his efforts failed. In order to overcome financial difficulties, he was compelled to execute the sham nominal sale deed as security in favour of defendant Nos.2 and 3, as it is only property available to him. The said document is only executed as security. The property remained with the possession of defendant No.1 only. The defendant No.2 and 3 were never took possession and accordingly, the defendant No.1 has prayed for dismissal of the suit against him.
6. The defendant No.3 has filed written statement and the same has been adopted by defendant No.2. It is 6 contended by him that they have jointly invested and purchased 'B' schedule property for a valuable sale consideration of Rs.30,44,000/-. The plaintiff's mother is aware of sale transaction and the father of defendant No.1 is also signatory to the sale deed. Now, the plaintiff's mother and the defendant No.1 are colluding each other and hatched up the plan by making false allegations. Hence, the suit is baseless and not maintainable. It is also contended that the suit is bad for non-joinder of all the properties. The defendant No.1 has sold one of his property bearing door No.141 and again he has repurchased the same on 09.09.2010. Subsequently, he has sold the same for which the mother of the plaintiff is also signatory. The defendant No.1 and his wife are in good terms and the allegations made in the plaint against defendant No.1 are all false and baseless. It is also contended by defendant Nos.2 and 3 that they are the bonafide purchasers for the value and they are in possession of suit 'B' schedule property. It is also contended that on the date of sale deed itself a lease agreement was entered into between the defendant No.1, 7 wherein he has agreed to pay rent to the defendant Nos.2 and 3 for which, the father of defendant No.1 is also signatory. Hence, both of them prayed for dismissal of the suit.
7. The Trial Court having considered the averments of the plaint and also the written statement filed by the defendant Nos.1 and 3 which has been adopted by defendant No.2 has framed the following issues and additional issue:
ISSUES
1) Does plaintiff proves that, the suit property is the ancestral property of the plaintiff?
2) Does plaintiff proves that, defendant No.1 neglected to maintain and look after him?
3) Does plaintiff proves that, the defendant No.1 intentionally to defeat his rights has alienated the suit schedule mentioned property in favour of the defendant Nos.2 and 3?8
4) Does plaintiff proves that, the suit referred sale transaction in respect of the suit schedule mentioned property is not binding on him?
5) Does the defendant No.1 proves that, the suit mentioned sale transaction is only a nominal transaction, but not real one?
6) Does defendant Nos.2 and 3 prove that, they are the bonafide purchasers of the suit property?
7) Does plaintiff is entitled for partition and separate possession to the extent of ½ share?
8) What order or decree?
ADDITIONAL ISSUE
1) Does suit is bad for non-joinder of another property as contended in the amended written statement?
8. The plaintiff's guardian i.e., mother has been examined as PW1 and examined two witnesses PW2 and PW3 and got marked the documents as Ex.P1 to Ex.P3. The 9 3rd defendant got examined as DW1 and got marked the documents as Ex.D1 to Ex.D23. The defendant No.1 not led any evidence. The Trial Court having considered the material on record, answered the issue No.1 as affirmative in coming to the conclusion that suit schedule property is the ancestral property of the plaintiff and answered issue Nos.2 to 5 as negative in not accepting the case of the plaintiff and so also did not accept the contention of defendant No.1 that sale deed is only a nominal transaction and the same is a sham document. The Trial Court answered issue No.6 in the affirmative in coming to a conclusion that defendant Nos.2 and 3 are the bonafide purchasers and dismissed the suit that plaintiff is not entitled for any relief as sought.
9. Being aggrieved by the judgment and decree of dismissal of the suit, the present Regular First Appeal is filed before this Court. The counsel appearing for the appellant in his argument vehemently contend that it is not in dispute that the property was allotted to the father of the defendant and later the property was allotted in favour of defendant No.1 in the partition taken place between the family 10 members. The counsel also would submits that the plaintiff was born on 21.10.2009 and the sale was made by defendant No.1 in favour of defendant Nos.2 and 3 subsequent to the plaintiff was born i.e., on 10.05.2010. The counsel would vehemently contend that the sale was made without permission and also the same is against the minor interest and it is also a sham document and possession was not delivered.
10. The counsel also would vehemently contend that the defendant Nos.2 and 3 have also filed suit for possession and arrears of rent. The counsel also brought to notice of this Court paragraph No.11(c) of defence of defendant No.1. The counsel would vehemently contend that it is the contention of defendant No.3 that consideration was paid by cash and no possession was delivered. The counsel would submits that when the issue No.1 has answered as affirmative and the same is an ancestral property, the Trial Court ought not to have dismissed the suit. The counsel would submits that no sale consideration has been passed and no receipt to that effect. No material is placed for having 11 paid the sale consideration. The counsel would submits that Section 58 of Registration Act has not been complied and no endorsement by registering officer for having passed the consideration in the document.
11. Per Contra, the counsel appearing for the respondent/defendant Nos.2 and 3 would submits that there is no pleading regarding no sale consideration has been passed and for the first time, the said ground is urged in this appeal. The counsel also brought to notice of this Court paragraph No. 11(b) and 11(c) of defendant No.1 and he had admitted the execution of the sale deed and only contend that it is a sham document. The counsel would submits that in the sale deed itself there is an endorsement for having received the money. The counsel also would submits that in the evidence it is emerged that even prior to the execution of this sale deed dated 10.05.2010, defendant No.1 executed other sale deed in respect of the family property. The very same property was repurchased and again the same was resold and the document Ex.D2, Ex.D3 and Ex.D5 is clear with regard to the said transactions. The 12 counsel also would submits that when the document was executed in the year 2012, the mother of the plaintiff is also witness and in the said document also a transaction is only a cash transaction.
12. The counsel would submits that in respect of all the transaction either the father of the defendant No.1 or the mother of the plaintiff are witnesses. The counsel would vehemently contend that only this sale was questioned, but not questioned other sale deed executed by the defendant No.1 and hence it is a collusive suit. The counsel also would submits that it is emerged in the evidence that defendant No.1 performed the marriage of his sister after the sale and all these material was considered by the Trial Court and rightly dismissed the suit.
13. The counsel also would submits that though it is contended that the defendant No.1 was addicted to bad vices and the same is not proved. The counsel also would submits that the same is for legal necessity and the said finding was given by the Trial Court even after the matter is sent back for re-consideration. The counsel also would 13 submits that Ex.D1 school document is also admitted and all the records which discloses that the defendant No.1 has signed the admission record of the school in respect of plaintiff. Hence, it is clear that there is a collusion between the plaintiff through her natural guardian mother and the defendant No.1. The defendant No.1 has not entered into witness box in order to prove his contention that the same is a sham document.
14. Having heard the appellant's counsel and the counsel appearing for the respondents and also the grounds urged in the appeal memo as well as oral submissions of appellant's counsel and the counsel for respondents, the points that would arise for consideration of this Court are:
1) Whether the Trial Court committed an error in dismissing the suit inspite of issue No.1 is answered as affirmative and whether it requires interference of this Court?
2) What Order?14
POINT Nos.1 and 2:
15. Having heard the appellant's counsel and the counsel appearing for respondent Nos.2 and 3 i.e., purchasers and also on perusal of materials available on record, this Court has to re-analyze the same in view of statutory appeal and the first Court i.e., fact finding Court and to consider the question of law. Having perused the pleadings and the written statement, it is not in dispute that the property devolves upon the father of defendant No.1 and also it is not in dispute that there was a partition between the father and son. The property is allotted in favour of the defendant No.1. No dispute with regard to the relationship between the parties. The defendant Nos.2 and 3 are the purchasers of the property from the defendant No.1 in respect of suit schedule properties.
16. Having perused the plaint averments and also the affidavit filed by PW1 who is the natural guardian of the plaintiff and she has re-iterated the averments of plaint that the suit schedule property is an ancestral property. The defendant No.1 has not having exclusive right to sell the 15 property and no permission is sought while selling the property. In the cross-examination, she admits that she is a graduate of Diploma in fashion design and she is having knowledge about the averments made in the plaint. It is admitted that she was residing along with her husband at Hospet after her marriage and also she admits that now she is staying in the house of maternal aunt of defendant No.1 at Hospet. But, she claims in the plaint that he was addicted to alcohol and subjecting her for cruelty, but admits that she has not stated in the plaint that he had broken her hands and legs. She claims that she came to know about the execution of the sale deed in the year 2012.
17. The PW1 admits that she admitted her son to Kidz School at Hospet and also admits that she is signatory to one of the sale deed in respect of commercial shop. But, she claims that her father-in-law has obtained her signature. The PW1 admits that property was sold in the year 2010 and also admits that she has not given any complaint against her husband subjecting her for both mental and physical harassment. It is admitted that her marriage was solemnized 16 in the year 2007 and she claims that even her husband is not cordial with his parents also, but she categorically admits that her husband has not subjected for physical assault of breaking her hand and legs. The PW1 claims that her uncle is participated in panchayat, but she claims that till date panchayats are going on. PW1 admits that while admitting their child to the School, her husband has signed the admission record and also it is an admission that she has filled up the School admission application and obtained the signature of her husband and the document is confronted as Ex.D1 and also admits that in the said document, income of her husband is also mentioned and she has given the address of her husband in the School admission application. It is also an admission that while admitting the child to School, she has given the phone number of her husband and also in the address she has mentioned all of them are residing along with her husband and in-laws.
18. In the further cross-examination also she admits the signature of her husband in Ex.D1 which is marked as Ex.D1(a) and all the details of Ex.D1 are true. The PW1 also 17 admits that there was a partition in the family of her father-in-law in the year 2001 and the same is marked as Ex.P1 and suit 'B' schedule property which is mentioned in the Ex.P1 is allotted to her husband. It is also admitted that on 05.08.2009 there was a sale and received a sale consideration of Rs.20,60,000/- and the same was repurchased on 09.09.2010. It is also admitted that on 18.01.2012, the very same property was sold to one Manjunath and in that sale deed, herself, her in-laws have also signed the said document. But, she claims that she signed on behalf of her son. It is also admitted that earlier suit schedule property was sold by constructing the shops. PW1 deposes that she cannot tell that on what date the panchayat was held between her and her husband. It is also admitted that father-in-law does oil trading business and her husband also doing the same business, her husband is an income tax assesee. But, she claims that he is addicted to bad vices and categorically admits that she has not claimed any maintenance from her husband. The suggestion was 18 made that the property was sold in order to clear the loan to defendant Nos.2 and 3 and the said suggestion was denied.
19. The plaintiff also examined PW2 and PW3. The PW2 is working in the shop of her husband and he re-iterates the case of the plaintiff in his chief evidence and he admits that defendant No.1 is an intelligent in his business and till his marriage he was doing well. He was addicted to bad vices, came to his knowledge through the PW1 and also subjecting her for harassment. It is admitted that prior to his marriage he was very good. He also admits that the plaintiff has not given any notice to defendant No.1 through advocate and not given any complaint and also no complaint was given before the leaders of Vaishya community. He also admits earlier sale deed of 05.08.2009 and 18.01.2012 and admits the signature made by in-laws of PW1 and PW1 while selling the said property in favour of Manjunath and he is in possession. He admits that defendant No.1 only requested to come and give evidence and accordingly he is giving evidence at the instance of 19 defendant No.1 and he admits that he is not aware of who is providing education to the minor plaintiff.
20. The other witness is PW3 who is also the friend of PW2 and his affidavit is also in the line of evidence of plaintiff and PW2 in his chief evidence and in the cross- examination, he admits that he himself, father of the PW1 and Adiveppa i.e., PW2 were present at the time of panchayat, but he cannot tell in which year panchayat was held and also he cannot even tell the same approximately. But he admits that defendant No.1 doing his business along with his father and all are living together. He also admits that defendant No.1 only requested him to come and give the evidence before the Court. He is not aware of personal relationship between the PW1 and the defendant No.1. He categorically admits that if any differences arise there is a Vaishya community at Hospet and those people will solve the problem. He also admits that he is having acquaintance with PW2 and PW2 is having more acquaintance with the plaintiff's family.
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21. On the other hand, defendant No.3 himself examined as DW1 and he re-iterates the averments of the written statement in his affidavit. In his evidence, he admits that 2nd defendant is working as business Manager at Goa company and both of them have invested money together and gave the money by way of cash. Both of them are income tax assesee. The defendant No.2 was getting salary of Rs.80,000/-. They verified the records before purchasing the property. It is also his evidence that the property was sold by defendant No.1 for his financial commitment and also in order to perform the marriage of 1st defendant's sister, but not given any public notice before purchasing of the property. It is also his evidence that other properties are also sold by the family. It is also his evidence that all of them are living together. DW1 admits that defendant No.2 was present and others were not there at the time of negotiation. It discloses that wife is also having consent and she is having small child and hence, she is not witness to the sale deed. It is admitted that house was vacant at the time of purchase, since brokers have shown only the empty house 21 and also surrounding the suit schedule properties, there are houses. It is suggested that the defendant No.1 was addicted to bad vices and the same was denied. It is suggested that defendant No.1 not taking care of the mother of the plaintiff i.e., PW1 and the said suggestion also denied.
22. Having reassessed both oral and documentary evidence available on record and also in keeping the grounds urged in the appeal and respective submissions of the counsels, we have given anxious consideration to the material available on record. It is not in dispute that the property was allotted to father of the defendant No.1 in the family partition and also the very same property is allotted in favour of defendant No.1 in the partition in the year 2001.
23. The Trial Court having considered both oral and documentary evidence, answered the issue No.1 in coming to the conclusion referring the document of 28.11.2001 since partition document is marked as Ex.P1 and suit property was allotted to the share of defendant No.1, rightly comes to the conclusion that the suit schedule property is an 22 ancestral property and hence we do not find any error committed by the Trial Court in answering issue No.1 as affirmative.
24. The other issues are with regard to issue Nos.2 to 6 have considered together and the contention of plaintiff that the defendant No.1 neglected to maintain and look after her and plaintiff and the defendant No.1 intentionally to defeat his right has alienated the suit schedule property in favour of defendant Nos.2 and 3 and suit schedule property which was sold is not binding on the plaintiff. It is also the contention of the defendant No.1 in the written statement that it is only a nominal sale deed. It is the contention of the defendant Nos.2 and 3 that they are the bonafide purchasers and they have purchased the property for valuable sale consideration.
25. Having reassessed the evidence of the PW1, though it is contended that defendant No.1 neglected her and her son, an admission given by the PW1 is clear that though panchayats were held regarding the differences 23 between them and her uncle was participated in the panchayat, but her uncle has not been examined before the Trial Court, instead of that PW2 who is working with defendant No.1 and his father was examined.
26. The other witness is PW3 who is also the friend of PW2. Both PW2 and PW3 have given an admission that at the request of defendant No.1 only they came and gave evidence before the Court. Hence their evidences cannot be believed and those witnesses are also interested witnesses of plaintiff. It is important to note that it is the allegation against the defendant No.1 that he executed the sale deed without any permission and not for the family benefit. But, the fact is that PW2 and PW3 came and gave the evidence before the Court at the instance of defendant No.1. It is also important to note that defendant No.1 in the written statement contended that it is only a nominal document and sham document and he has not steps into the witness box.
27. The counsel appearing for the appellant also would vehemently contend that no sale consideration has 24 been paid. On perusal of the sale deed, it is clear that there is a recital for having received the sale consideration and the very contention that no receipt and no material for having paid the consideration cannot be accepted. The very document of the sale deed discloses for having passed the sale consideration.
28. It is also important to note that it is the contention of the plaintiff that he has not taken care of her and also the child. Even it is stated that he did not come and see the child after she gave birth to the plaintiff, the same is against the material available on record. The PW1 categorically admits that immediately after the marriage, she has joined the matrimonial house. It is also important to note that her child is admitted to Kidz School. There is an admission on the part of PW1 that the said admission application was signed by her husband and the document is confronted as Ex.D1 and she admits the signature of her husband available in exhibit D1 as exhibit D1(a). 25
29. It is also important to note that it is the contention that he was addicted to bad vices. But, no complaint was given and no case has been filed against him and categorically admitted that he never break her hand and legs and no such assault was made against PW1. It is also important to note that there is an admission in the cross- examination of PW1 that while admitting to School, phone number of her husband was given and also in the School application of plaintiff, her husband address was given and also details of residing along with her husband and parent-in-laws was given in the School admission applications. These admissions are very clear that defendant No.1 had signed the School application. The PW1 categorically admits that they took the signature of defendant No.1. If that is the case, if he is not taking care of them, what made them to obtain signature of defendant No.1 and all these material goes against the case of the plaintiff which was pleaded in the plaint.
30. It is also important to note that the present sale in the year 2010 and prior to that there was a sale on 26 05.08.2009 and the same was repurchased on 09.09.2010 i.e., subsequent to the sale made by this suit schedule property that was in the month of May-2010 and the same was resold again in the year 2012. Though PW1 is not signatory to the particular sale deed made in favour of defendant Nos.2 and 3, the same has been explained in the evidence of DW1 that by that time, she gave birth to a child and she has not signed the sale deed. The fact that father- in-law, mother-in-law and herself were parties to the sale deed dated 18.01.2012 i.e. subsequent to the sale made in favour of defendant Nos.2 and 3 is very clear that all of them are having cordiality. The PW2 who works with defendant No.1 and his father also categorically admits that all of them are living together and doing the business jointly i.e., father of defendant No.1 and defendant No.1 are also doing the very same business. When such admissions are given, the case of the plaintiff is far away from the truth and the admissions goes against her own pleading made in the plaint with regard to the conduct of defendant No.1. It is also the claim of DW1 that both DW2 and DW3 have 27 invested their money and purchased the property. They are the bonafide purchasers.
31. It is also important to note that except this sale, no other sale has been questioned by the plaintiff inspite of admission of other sale. It is also important to note that other than this sale deed, they sold the property in 2009 and in 2012. The father, the mother and also the plaintiff are witness to the sale deed dated 18.01.2012. The said sale deed is subsequent to the sale made in favour of defendant Nos.2 and 3. Hence, it is clear that the defendant No.1 and plaintiff have colluded each other and filed the present suit.
32. It is also important to note that the property which was sold in the year 2009 and repurchased in the year 2010 subsequent to the sale made in favour of defendant Nos.2 and 3 and the property once again sold on 18.01.2012 is having knowledge with all the family members and particularly when the sale deed was made in the year 2012 in favour of one Manjunath including wife and in-laws of PW1 are also signatories to the said document. When such 28 material available before this Court, it is nothing but a collusive suit filed by the PW1 wife and defendant No.1.
33. We have already pointed out that the defendant No.1 secured the witnesses PW2 and PW3 to give evidence before the Court to support the case of PW1. When he took the specific contention that it is a sham document and nominal one, he has to step into the witness box and prove the same. But, he has not entered into the witness box. The Trial Court rightly taken note of the said fact into consideration and in paragraph No.25 has drawn the adverse inference relying upon the judgment of the Supreme Court.
34. It is also important to note that when the defendant No.1 has made allegation that the sale made by him in favour of defendant Nos.2 and 3 is a nominal sale and no consideration has been paid and he never entered the witness box, instead of that he secured the PW2 and PW3 and examined them to support the case of PW1. Hence, it is clear that it is a collusive suit filed by the wife as well as defendant No.1. The Court has to take note of conduct of 29 defendant No.1 in stating one thing in written statement and supporting the case of plaintiff requesting PW2 and PW3 to give evidence against him before the Court, the same has been also taken note of by the Trial Court by considering issue Nos.2 to 6 whether the sale was not within the knowledge of the plaintiff or not.
35. It is also important to note that when the sale deed was made in favour of defendant Nos.2 and 3 in the year 2010 itself and what made the PW1 if she is not having any cordial relationship with her in-laws and also with her husband to sign the document of the year 2012 while reselling the property in favour of one Manjunath along with all family members. Hence it is clear that all of them were cordial and living together and only with an intention to defeat the sale made in favour of defendant Nos.2 and 3, the present suit is filed. The Trial Court taken note of all these factors into consideration and even while answering additional issue No.1 also in paragraph No.27, the Trial Court taken note of when other sale was not questioned by the plaintiff on behalf of the minor plaintiff and non-inclusion 30 of all the properties and also not questioning the other sale, it is clear that it is a collusive suit.
36. The Trial Court has not committed any error in appreciating both oral and documentary evidence and well reasoned order has been passed and taken note of conduct of PW1 as well as the defendant No.1 who has not stepped into the witness box in order to prove his allegation against defendant Nos.2 and 3 and Trial Court rightly comes to the conclusion that defendant Nos.2 and 3 are the bonafide purchasers of the suit property and defendant No.1 fails to prove that sale transaction is only a nominal transaction as security. The very contention of the appellant's counsel that no sale consideration has been passed cannot be accepted. The very document of sale deed itself is clear that sale deed was executed having received the sale consideration by cash and sale consideration also being passed. There is a recital in the said document itself and apart from that even other transaction of sale is also cash transaction and not the transaction by way of Cheque or demand draft. 31
37. The PW1 categorically admitted that she has not given any complaint and also not filed any case for maintenance against her husband. It is emerged that if any difference between the husband and wife, the Vaishya community will take care of the same. No such complaint was given to the said Society and the same is also admitted by PW2 in the cross-examination and PW2 and PW3 though support the case of PW1 and they are interested witnesses i.e., PW2 is working with the defendant No.1 and his father. The PW3 is the friend of PW2 and their evidence is also clear that they came and deposed before the Court at the instance of defendant No.1. When the defendant No.1 was able to secure PW2 and PW3, what prevented him to enter into the witness box, no explanation for the same. The Trial Court rightly drawn the adverse inference and no error has been committed by the Trial Court in dismissing the suit.
38. Having considered both oral and documentary evidence and also by giving anxious consideration to the same, we are of the opinion that there is no merit in the appeal to reverse the finding of the Trial Court and Trial 32 Court has given well reasons while dismissing the suit. Hence, answered the point as negative.
39. In view of the discussions made above, we pass the following:
ORDER The appeal is dismissed.
No Cost.
Sd/-
JUDGE Sd/-
JUDGE RHS