Karnataka High Court
Narayana Y. Patil S/O Yallappa R. Patil vs Maruthi Y. Patil S/O Yallappa on 28 August, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE C.R. KUMARASWAMY
REGULAR SECOND APPEAL No.2695/2005 (DEC)
BETWEEN:
NARAYANA Y. PATIL
S/O YALLAPPA R. PATIL
SINCE DECEASED BY HIS L.Rs
1. SMT. SHANTHA N. PATIL
W/O LATE NARAYAN Y. PATIL
AGED ABOUT 42 YEARS
2. SANDEEP N. PATIL
S/O LATE NARAYANA Y. PATIL
AGED ABOUT 24 YEARS
3. SAPNA N. PATIL
D/O LATE NARAYANA Y. PATIL
AGED ABOUT 22 YEARS
4. RAKESH N. PATIL
S/O LATE NARAYANA Y. PATIL
AGED ABOUT 19 YEARS
5. ROSHAN N. PATIL
S/O LATE NARAYANA Y. PATIL
AGED ABOUT 24 YEARS
ALL ARE RESIDING AT ANJANEYA BADAVANE
3RD CROSS, HALE HARLAPUR,
POST-GUTTUR
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TALUK HARIHAR
DISTRICT DAVANAGERE ...APPELLANTS
(BY SRI. KALEEMULLAH SHARIFF, ADVOCATE)
AND:
1. MARUTHI Y. PATIL
S/O YALLAPPA
AGED ABOUT 50 YEARS
R/O D.NO.442, 3RD CROSS
HALEHARLAPURA, GUTTUR POST
HARIHAR TALUK, DAVANAGERE DISTRICT
2. YALLAPPA R. PATIL
S/O RAMACHANDRA RAO
AGED ABOUT 85 YEARS
R/O D.NO.442, 3RD CROSS
HALEHARLAPURA, GUTTUR POST
HARIHAR TALUK
DAVANAGERE DISTRICT ...RESPONDENTS
(BY SRI. MAHESH R. UPPIN, ADVOCATE FOR R-1)
(R-2 IS SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED U/S
100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 18.10.2005 PASSED IN R.A.NO.267/2002 (OLD
NO.112/2002) ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) HARIHAR ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE
DATED 30.03.2002 PASSED IN O.S.NO.260/1990 ON
THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.)
HARIHAR.
THIS RSA IS COMING ON FOR DICTATING
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
This Regular Second Appeal is filed under Section 100 of CPC against the Judgment and Decree dated 18.10.2005 passed in R.A.No.267/2002 (Old No.11/2002) on the file of the Civil Judge (Sr.Dn.) Harihar allowing the appeal and setting aside the judgment and decree dated 30.03.2002 passed in O.S.No.260/1990 on the file of the Add. Civil Judge (Jr. Dn.) Harihar.
2. Sri. Maruthi Y.Patil and Sri. Narayana Y.Patil are the sons of Sri. Yallappa R.Patil. The plaintiff is an employee in Kirloskar factory at Harihar and he is drawing a salary to the tune of Rs.1,600/-. The defendant No.1 was formerly an employee at Kirloskar Company at Harihar. He retired about 10 to 12 years back. The defendant No.2 is working in a private firm for the past 16 to 17 years. The plaintiff has been working in Kirloskar factory at Harihar for the past 15 years. The plaintiff as well as the defendants have got 4 their own independent source of earning. The plaintiff's another brother Parashuram Y. Patil is also working in Kirloskar factory since 24 years. Thus, each and every member of the family has got independent source of income by means of their respective employment. The said Parashuram Y. Patil was residing in a rented house with his family at Shimoga Extension I Cross, Harihar. There is no joint family property at Harihar belonging to the plaintiff and defendants family.
3. The plaintiff is the absolute owner of the suit schedule property. The plaintiff purchased the site bearing Nos.19, 20 and 21 totally measuring 90' x 40' situated at Haleharlapura Hanagawadi Pandhayat jurisdiction of Harihar Taluk. However, latter the plaintiff sold ½ site in Site No.20 and full site of Site No.21 are sold by the plaintiff to one Basappa of Byadagi town and M. Lakshmikanth of Davanagere and retained site No.19 and ½ site in site No.20. The purchasers have not changed the Khata in their names. 5 The original sale deed dated 16.08.1978 having purchased the above said three sites, is deposited in the Housing Development Financial Corporation, Bangalore. As the plaintiff was already working in Kirloskar Company, he has saved money to purchase the site. After purchase of the site, the plaintiff got changed the Khatha of the above said three sites namely, Site Nos.19, 20 and 21 in his name. At present, the sites in question comes under the jurisdiction of Hanagawadi Mandal Panchayat. The plaintiff intended to put up construction of a house in the year 1980. But he had insufficient funds. He sold site No.21 to one Basappa of Byadgi for consideration amount of Rs.3,500/-. With that amount he put up a foundation in site Nos.19 and
20. The plaintiff had obtained licence from Guttur Group Panchayat as per licence bearing No.HBL.7/78-
79. After putting up the foundation the plaintiff again felt for the need of money for further construction. Therefore, the plaintiff was constrained to sell site with foundation in Site No.20 to one M.Lakshmikanth of 6 Davanagere for a sum of Rs.5,500/- in the year 1983-
84.
4. The plaintiff has raised loan from Housing Development Finance Corporation (HDFC) to the tune of Rs.16,000/-. Besides from the above loan, the plaintiff also obliged to draw Rs.14,000/- from his S.B.Account at Bank of Maharashtra, Harihar Branch. The plaintiff withdraw a sum of Rs.7,600/- from his Provident Fund. He also raised hand loan of Rs.21,000/- from Sri.K.V.Mamadapur under two pronotes dated 16.06.1983 and 13.03.1983.
5. The plaintiff has completed the building in the year 1984. The defendants were living in a rented house. The father and brother of the plaintiff namely, defendant Nos.1 and 2 came and requested the plaintiff to accommodate them for sometime in his house. So, on humanitarian consideration, he permitted the defendants to live in his house. The plaintiff extended the construction in the year 1989. He also obtained the 7 licence as per licence dated 06.02.89/88-89 from the Mandal Panchayat. He also raised Rs.4,000/- from Karnataka Bank during September 1988. The plaintiff again raised Rs.10,000/- from the Provident Fund Loan. The plaintiff issued a notice to the defendants through his Advocate on 11.06.1988 to which reply, rejoinder were sent. The defendants denied the plaintiff's title to the suit house in their occupation i.e. to the eastern half portion.
6. The cause of action for the suit arose on or about 11.06.1988 when the plaintiff got issued a legal notice and subsequently on 05.07.1988 when the defendants gave reply to the said notice and also on 13.07.1988 when rejoinder was issued to the above said reply and subseqeuntly on 16.08.1988 the defendants issued reply to the rejoinder at Haleharlapura, Harihar Taluk. Therefore, the plaintiff has sought to declare the owner of the suit schedule property namely, 442 and 443 measuring 30' x 40' along with site measuring 15' x 8 40' situated at Haleharlapura Village and also to recover the possession of the eastern half portion of the house of the plaintiff.
7. The defendant No.1 adopts the written statement filed by the defendant No.2.
8. The defendant No.2 has filed the written statement in the Trial Court as under:-
The averment made in written statement is denied. The plaintiff has joined the job in Kirloskar Company just about 10 years back and at the initial stage, he was getting wages of Rs.70.00 per month as a fresh recruitee. The defendant No.1 has served in Kirloskar factory at Harihar. He has retired and he got retirement benefit of Rs.65,000/-. The defendant No.2 was also serving in private firm and getting salary of Rs.1,600/- per month. The family of the defendant No.1 had no ancestral property. Since, the landlord of the defendant No.1 were insisting the defendants to vacate his rented house, the plaintiff and the defendants 9 thought of purchasing three suit plots for each of them.
But, the said plots were purchased in the name of the plaintiff as he was unmarried and with a intention that he should get marry with a bride of good family, who make enquiry about the family property. When the landlord of the defendant No.1 asked them to vacate his house, the defendants and the plaintiff thought of constructing the house on suit sites even by selling ½ of the sites purchased by them. As a result, the ½ of the suit site were sold to Basappa M. Laxmikant.
9. The defendant No.1 had received huge amount by way of retirement benefits. This defendant who has saved money from his earnings, has invested 75% of the amount in purchasing and constructing the suit sites. The plaintiff is addicted to bad vices. The pronotes for Rs.20,000/- dated 16.06.1983 and 13.03.1983 are fabricated. The plaintiff had no right, whatsoever over the suit sites.
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10. The plaintiff has requested the elders and through them requested the defendants to give his share in the suit schedule property. The elders advised the defendants to give share in suit schedule property, though he has no right whatsoever over the suit site. The suit property has been divided into two parts, by construction of huge partition work. The defendants have secured electricity in their own eastern portion and the plaintiff has taken electricity in his western portion. The plaintiff cannot claim ownership, over the entire suit schedule properties and contended that he is the absolute owner of the same.
11. The defendant No.1, who has invested all his earnings saved and amount of Provident Fund, Gratuity etc. and has invested the same for the purchase of the suit site and construction of suit house. Therefore, he was constrained to file Criminal Miscellaneous Petition under Section 125 of CPC, claiming maintenance for himself and his wife i.e. against his sons and the 11 necessary interim maintenance order was passed directing the plaintiff, to make payment of maintenance amount. There is no cause of action. The Court below has no pecuniary jurisdiction. The rejoinder is filed by the plaintiff that the defendant might have created the memo of partition dated 12.04.1987. The allegation that the plaintiff requested the panchas to persuade defendants to agree to give up their right of ownership over the eastern portion of suit schedule property, received Rs.20,000/- and as a result of the same another deed dated 24.12.1986 came into existence is totally false. The defendant Nos.1 and 2 are in permissive possession and they are enjoying the amenities.
12. The trial court has raised the following issues as arising from the pleadings.
1) Whether the plaintiff proves that suit schedule property is his self-acquired property as the same is constructed by dint 12 of his hard labour and heavy expenses as averred in plaint para No.5?
2) Whether the defendants prove that they have invested in purchasing and constructing of the suit sites and plaintiff has no right over the sites as stated in WRITTEN STATEMENT para No.7 and 8?
3) Whether the defendants prove that as per memo or partition dated:12.4.1987 elders gave western portion to the plaintiff and retained eastern portion?
4) Do defendants prove that another deed dated 24.12.88 came to be executed and plaintiff forfeited his right over the eastern portion as he did not pay the amount as contended in para No.8?
5) Whether this court has no pecuniary
jurisdiction?
6) Whether the court fee paid is proper?
7) Whether the plaintiff is entitled for declaratory relief as sought?
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8) Whether the plaintiff is entitled to possession of eastern half portion of the house?
9) What order or decree?
The trial court has answered the above mentioned issues as under:
Issue No. 1:- In the negative.
Issue No. 2:- In the affirmative.
Issue No. 3:- In the affirmative.
Issue No. 4:- In the affirmative.
Issue No. 5:- The court has pecuniary
jurisdiction.
Issue No.6:- Yes, the court fee paid is proper.
Issue No. 7:- The plaintiff not entitled to any
relief as sought.
Issue No. 8:- ---- do ----
Issue No. 9:- As per final order.
13. The plaintiff was examined as PW.1 and other four witnesses were examined as PWs.2 to 5. EX.P.1 to P.118 were marked on his side. The defendants were also examined as DWs.1 to 5. In 14 support of the case of the defendants, defendants have marked Exs.D1 to D6.
14. The trial court has observed that in the year 1973 plaintiff joined to the Mysore Kirloskar Factory as a trainee. At that time he has obtained Rs.60/- per month as stipend. In the year 1974 plaintiff was joined as a temporary machine operator and wage fixed was Rs.3.80 paise + Dearness Allowance. Plaintiff's appointment was confirmed on 27.12.1975 and the wage fixed for him per day was Rs.4/-. Plaintiff has admitted that his salary per month in the year 1978 was Rs.270/-. EX.D2 is the service certificate of Y R Patil dated 13.07.1978. Father of the plaintiff received retirement benefit of Rs.1,00,000/-. PW.1 has admitted that he was suffering from skin disease and he was taking treatment in the hospital at Indagala, Dharwad District. PW.2 has stated that he was a mediator of the sale transaction of site Nos.19, 20 and 21 in respect of sale deed dated 16.08.1978. He was also an attesting 15 witness to the sale deed. PW.2 has stated that the suit schedule property was purchased by the defendant No.1 in the name of plaintiff. Plaintiff did not have sufficient source to purchase plot Nos.19, 20 and 21. Plaintiff lived separately from their parents and defendant No.2 before his marriage. Plaintiff's father retired from Mysore Kirloskar Factory at the time of purchasing the suit site Nos.19, 20 and 21 on 16.08.1978. Plaintiff himself has admitted that his father has received a sum of Rs.1,00,000/- from his factory at the time of his retirement. All the documents produced by the plaintiff and defendant and oral evidence reveals that the site Nos.19, 20 and 21 purchased by defendant No.1 and construction was made by plaintiff and defendant Nos.1 and 2.
15. The trial court has observed that PW.1 has admitted that panchayath was held between himself and defendants on 12.4.87 regarding the suit schedule property. He further admits that he has signed the 16 panchayath document, but he has further stated that his signature was taken under undue influence and misrepresentation. He has also not made any complaint to that effect. PW.1 has not adduced sufficient evidence to prove that his signature obtained by the panchayathdar on 12.4.87 by means of undue influence and misrepresentation. The defendant adduced sufficient evidence regarding the agreement dated 24.12.1988. DWs.1 to 5 were supporting the deed dated 24.12.1988 as per the EX.D1. PW.1 has admitted that he has produced a copy in case Crl. Misc. No.1/88 on the file of the JMFC, Harihar. DW.5 has deposed that he was a panchayathdar. The trial court came to the conclusion that as per DW.1 the panchayath is held on 24.12.88 and the evidence of PW.1 shows that he was hiding the real facts. The memorandum of partition itself is not the partition of the parties and it does not require registration. Therefore the trial court dismissed the suit of the plaintiff. Feeling aggrieved by the same 17 the plaintiff preferred a regular appeal before the Court of Civil Judge (Sr. Dn.), Harihara.
16. The lower appellate court has raised the following points:
1. Whether the impugned judgment and decree passed by the trial court is arbitrary, capricious, perverse and oppose to the well established principles of law?
2. Is there sufficient reason to interfere in the order of the learned trial court?
3. What decree and order?
17. The lower appellate court at para 15 of its judgment has mentioned that plaintiff, defendant No.1 and one Parasuram are the sons of defendant No.1. It also reveals that they are having their own independent source as they are working in Harihar Mysore Kirloskar factory and as well as in private firm also. According to the pleadings as well as the evidence placed on record the lower appellate court observed that defendant No.1 18 was not having any ancestral property. It is also admitted that the plaintiff was getting a salary of Rs.1,600/- p.m. Defendant No.1 was working in a private firm since 16 to 17 years. Parashuram is also eldest brother of plaintiff who is also working in Kirloskar factory since 24 years.
18. The lower appellate court at para 16 has mentioned that plaintiff from his own source of income has purchased site Nos.19, 20 and 21 totally measuring 90' x 40' situated at Haleharlapur, Hanagawdi Panchayath. The lower appellate court has also observed that in order to construct his house he has obtained licence and modified plans in the year 1984 and 1989 as per EX.P.1, EX.P6, and EX.P.16.
19. The lower appellate court at para 17 has mentioned that according to his evidence as and when he was in need of money in order to construct his house, he had sold half portion in site No.20 and site No.21 in favour of one Basappa of Byadagi who is now 19 residing at Harihar and M Laxmikanth of Davangere by obtaining consideration amount executed the sale deeds as per EX.P.73 and P.74. In order to show that he has invested huge amount he has produced EX.P.72 and P.75 for purchase of cement under Government Quota by paying the amount. EX.P.5 is the estimation. It is in the name of plaintiff. EX.P.16 is the letter of mortgage which is in favour of H.D.F.C. EX.P.17 is another letter to show that plaintiff has obtained loan from Maharastra Bank. EX.P.18 is notice for receipt of provident fund. EX.P.19 to 21 are the pronotes for raising the loan and as well as receipt for payment of the said loan. EX.P.22 is the second phase of construction in the year 1989 that is licence granted by the Mandal Panchayath. EX.P.23 is the modified plan. EX.P.25 is the completion certificate. EX.P.24 is letter issued by Maharastra Bank for raising loan by the plaintiff to the tune of Rs.10,000/-. So all these documents establish that the plaintiff has independently purchased site Nos.19, 20 and 21 which 20 are situated within the limits of Guthur Grama Panchayath. He has also exercised his independent rights by executing sale deeds as per EX.P.73 and EX.P.74 in favour of one Basappa of Byadagi and as well as Laxmikanth of Davangere. In order to show that he is the owner of the suit schedule property, in the katha and house list extract the name of plaintiff is mentioned. He has also produced the tax paid receipts. Plaintiff has raised loan from HDFC, Bank of Maharastra, from Provident Fund Office as well as from private persons in order to construct the house and in order to support this fact he has produced relevant documents which are marked in the evidence.
20. The lower appellate court at para 18 has observed that the question before it is according to defendants the said properties have been purchased by the defendant No.1 after his retirement has invested his retirement amount of Rs.65,000/-when they were living in joint family. So the defendants contend that they are 21 having a share in the suit schedule property. Further the case of the defendant is that they have also invested the amount for construction purpose and as per the memorandum of partition, the western portion has been fallen to defendant No.2 and as the plaintiff is unable to pay Rs.20,000/- as per another deed, the plaintiff has relinquished his right and therefore the plaintiff is not having any right over the property. The defendant No.1 has absconded for more than 7 years. From the perusal of cross examination of PW.1, the trial court has arrived at a conclusion that when the plaintiff and defendants were in joint family, the suit schedule property have been purchased in the name of the plaintiff and hence plaintiff and defendants are having joint right over the suit schedule property and on that assumption only the learned trial court has dismissed the suit of the plaintiff. From the perusal of the entire cross- examination of PW.1 he never admitted the alleged partition which is marked at EX.D1. Moreover the said EX.D1 is xerox copy of partition memo which is objected 22 at the time of confrontation during the cross- examination of PW.1. Apart from that the signature of plaintiff which is marked at EX.D1(a) is also disputed by the very plaintiff and he has unequivocally stated in his evidence that the said signature is not at all concerned to him, when the said document itself is questioned in the cross examination, the burden is cast upon the defendant to prove the said document by producing the original partition deed.
21. The lower appellate court at para 20 has mentioned that here in this case the defendants have not taken much pain to produce the original document by themselves or by calling some other person in whose possession the original document is. When the said original document is not forthcoming, it clearly goes to show that EX.D1 xerox copy of partition memo is itself is not admissible in the evidence. Apart from this the learned trial court has not at all glanced its eyes to verify the said document. The said document itself is 23 not visible one. At page No.2 of the said document some of the lines are not at all visible and those lines cannot be read easily. Apart from this on page No.3 one half line is struck off. Therefore there is no explanation either by the defendant or by his witnesses in respect of striking of the sentences.
22. The lower appellate court has observed at para 21 when the plaintiff himself has denied the said document, it clearly goes to show that EX.D1 is not at all concerned to this suit schedule property, apart from this there is no records to show that father of the plaintiff or defendant No.2 or defendant himself have invested the amount in respect of purchase of site Nos.19, 20 and 21.
23. The lower appellate court at para 22 has observed that according to the pleadings of the defendant, the plaintiff has relinquished his right over the suit schedule property as he was unable to pay Rs.20,000/- to the defendants. Except averments made 24 in the written statement no iota of evidence has been produced by these defendants in respect of relinquishing the rights over the suit schedule property by the plaintiff. When the property is more than worth Rs.100/- in respect of immovable property, there should be a registered relinquishment deed as per Section 17(b) of the Indian Registration Act. When these materials are not forthcoming from the side of defendants, i.e., respondents, it clearly goes to show that these defendants have not at all invested any amount while purchasing site Nos.19, 20 and 21. More over there is no deed at all in respect of partition and as well as relinquishment deed relinquishing the right in respect of suit schedule property by the plaintiff. Under these circumstances it clearly goes to show that there is no partition at all between the plaintiff and the defendants in respect of the suit schedule property and as well as the plaintiff has not executed any relinquishment deed in favour of the defendant.
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24. The lower appellate court at para 23 has mentioned that it is an admitted fact that the defendants are residing in the suit schedule property. But when the defendants failed to establish their own rights over the suit schedule property, it clearly goes to show that they are in possession of the said property with permission of the plaintiff. From the records produced by the plaintiff it clearly goes to show that the plaintiff has produced the suit schedule property in his own name and he has already become the owner of the said properties. Apart from this when the plaintiff has sold some portion of site No.20 and 21, at that time if the defendants were having right over the said properties, they ought to have been objected for the said alienation. At that time these defendants have not raised their little finger. So it clearly goes to show that the plaintiff has exercised his own independent right in respect of said properties i.e., he has alienated the said properties independently. If the defendants have invested the amount for construction of the house 26 property, certainly they ought to have been produced some of the receipts for purchase of materials in their name. But the defendants have not at all produced any piece of documents for purchase and construction of house materials.
25. The lower appellate court at para 24 has mentioned that plaintiff was major and was having his own source of income as per EX.P.60 to P.62 which are certificates issued by M K Limited, Harihar. In those documents, the salary of the plaintiff is clearly mentioned. So clearly goes to show from the savings of his salary and as well as by obtaining loans from various financial institutions and from private persons, he has purchased the property and as well as constructed the house property. Therefore the lower appellate court was of the opinion that the plaintiff is the owner of the suit schedule property and certainly he is entitle to get the same from the defendants. 27
26. The lower appellate court at para 25 has observed that at the time of purchase of the property plaintiff was a major and he is having his own income. Therefore as per the provisions of Benami transactions Act, the property should go in the name of the purchaser only. There is no bar to purchase the property by any joint family member in his name from his own source of income. If one of the joint family member has purchased the property from his own source of income without aid of nucleus fund, it clearly goes to show that the said property is self-acquired property even though the family is in joint. Therefore the lower appellate court set aside the judgment and decree dated 30.03.2002 passed by learned Addl. Civil Judge (Jr. Dn.), Harihar and the suit of the plaintiff has been decreed. Further it declared that the plaintiff is the owner of the suit schedule property. Besides it was directed that the defendants and their family members should hand over the possession of eastern half portion 28 of the house to the plaintiff within three months. If the defendants failed to do so, the plaintiff is at liberty to evict the defendants with due process of law.
27. Aggrieved by the same the defendant No.2 has preferred this Regular Second Appeal.
28. I have heard the learned counsel from the appellant as well as the learned counsel for the respondent. I have perused the trial court records as well as the appellate court records.
29. The substantial question of law framed by this Court is as under:
"Whether the lower appellate court was justified in reversing the findings of the trial court that the suit schedule property is a joint family property, though stood in the name of the plaintiff as all of them constitute a joint family and in declaring that it is a self acquired property of the plaintiff?"29
30. Learned counsel for the appellant submits as under:
The impugned judgement and decree is illegal.
The reason assigned by the lower appellate court is not proper. The lower appellate court has exceeded its appellate jurisdiction in reversing the judgement and decree of the trial court. The lower appellate court has committed an error of law in not properly appreciating the material placed on record as well as the evidence. It is the case of the first defendant that on 30.06.1978 after his retirement he received Rs.60,000/- as his service benefit. Out of the said amount the first defendant has purchased three sites bearing Nos.19, 20 and 21 for Rs.1,000/- under the sale deed dated 16.08.1978. Plaintiff was suffering from disease namely Leprosy. Therefore, his marriage prospects were blur.
Therefore with the sympathy father of the plaintiff purchased the property in his name. since the plaintiff was suffering from contigineous disease he was living in 30 a separate room. The plaintiff did not had sufficient fund to purchase the property. The finding of the court below that father of the plaintiff was absconding is not proper. Petition under Section 125 of the Cr.P.C. was filed by the father of the plaintiff and it was allowed and maintenance amount was awarded against all the three sons. The material witness is PW.1. He was examined on behalf of the plaintiff. At the time of purchasing the suit properties the plaintiff did not had sufficient fund. The father of the plaintiff contributed funds for the purchase of the suit properties. Learned counsel for the appellant relies on the judgement in the case of Madan Lal Vs. Ram Prasad (deceased by L.Rs) reported in AIR 2002 Rajasthan 99.
" Hindu Law - H.U.F.- Joint family business-Plot purchased by a coparcener in his name - Sanction plan for construction, electric connection in his name - Also himself shown as sole owner in I.T. proceedings, inducted tenants, obtained loan by mortgaging property - However, failed to 31 prove his independent source of income and that money required for purchasing plot and making construction was not from joint family business- Title in property cannot vest in him alone but continues in joint family."
31. Attention of this court was also invited to para 19 and 20 of the said ruling, which reads as under:
" 19. The learned counsel for the appellant- plaintiff also tried to submit that he raised the construction over the plot in dispute. The learned counsel for the respondent- defendant pointed out that the plaintiff in para No.4 of the plaint, very specifically submitted that, the above plot was purchased by the plaintiff from his own income and also in para No.5 stated that he invested Rs.12,000/-. The plaintiff has not given any explanation from where he got this amount. Therefore, the evidence of the plaintiff with respect to getting money from his wife and in-laws deserves to be rejected. The Court below found the evidence of the plaintiff and his witnesses not sufficient to 32 prove the fact of raising construction by the plaintiff.
20. A bare perusal of the documentary evidence, the entries placed by the plaintiff, it is clear that the plaintiff failed to prove that the house was constructed by the plaintiff and his evidence is not worth relying. There are serious contradictions in the evidence of the plaintiff, rather say, the plaintiff is not a witness of worth reliance. He also failed to produce in-laws to prove that any payment was made to the plaintiff by the in-laws for raising construction of the house, therefore, the plaintiff failed to prove that the house was constructed by the plaintiff from his own income."
32. Learned counsel for the respondent submits as under:
The defendant No.1 - father of the plaintiff has not entered the witness box. He has not filed independent written statement.33
33. There is no substantial question of law involved in this case. In support of his contention he relies on the ruling in the case of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi reported in (2009) 3 SCC
287.
" Civil Procedure Code, 1908 - Section 100 - Substantial question of law - What is - Issue whether property is joint Hindu family property held, is a question of fact and not a substantial question of law."
34. It is undisputed fact that the properties in question were purchased by the plaintiff and the sale deed stands in the name of the plaintiff. He further submits that since the property stands in the name of the plaintiff, the presumption is that he is the absolute owner of the property. The burden cast upon the defendant to point out that the property in question is a joint family since he has raised this point. Defendant admits that there is no nucleus to purchase the property in question. Defendants have not produced any documents to show that they have contributed any 34 amount for the purchase of suit schedule properties. DW.1 admits in his evidence that plaintiff alone has paid the kandayam and not the defendant No.1 or defendant No.2. Relying on the sale deeds and the evidence of the plaintiff with regard to borrowing of the loan amount from different financial institutions and also withdrawal of the amount from the provident fund the lower appellate court arrived at a conclusion that the plaintiff is the owner of the suit schedule property. Plaintiff has also sold half portion of the property and the defendant did not object for the same.
35. I have read the evidence adduced by both the parties. It runs about 150 pages. There were about five witnesses examined on behalf of the plaintiff and there were about five witnesses examined on behalf of the defendant.
36. The relief sought in this case is grant of declaratory relief. In a declaration suit to maintain 35 declaration under Section 34 of the Specific Reliefs Act following essentials must be established.
1. The plaintiff is a person entitled to any legal character or to any right as to the property.
2. The defendant is a person denying or interested to deny the plaintiff's title to such character or right.
3. The declaration sought for is the declaration that the plaintiff is entitled to a legal character or a right to a property and whether the plaintiff is able to seek further relief than the mere declaration of title, he must seek such relief.
37. In a suit for declaration of a right or towards the property the plaintiff must allege in the plaint that he has got a valid right towards a legal character or a perfect title over the property in respect of which the declaration is sought. Further the plaintiff must allege in the plaint that the defendant has denied the plaintiff's right or title to the property. 36
38. The gist of the evidence is as under:
"The Parties have led evidence on the aspect pertaining to non joinder of necessary party viz., Parsuram Patil, borrowing of loan by the plaintiff, non existence of ancestral property, vouchers produced by the plaintiff for having spent the amount for construction. The parties have also led evidence relating to illness suffered by the plaintiff, sale of a potion of the property by the plaintiff, earning of the plaintiff as on the date of sale and also subsequent days. The plaintiff have denied in his evidence that he has executed the partition deed. He also denies that signature found on the partition deed were obtained due to undue influence. Secondary evidence was also led in respect of partition deed and photo stat copy of the partition deed was marked. Defendant No. 1 have led evidence about instituting criminal petition for maintenance against all his three sons."
39. The plaintiff has instituted a suit to declare him as the owner of the suit schedule property. Evidence adduced by the parties as if it is a partition suit though the suit filed by the plaintiff is for declaration to declare him as an owner of the suit schedule property. There is evidence to the effect that 37 father of the plaintiff was retired from the service of Mysore Kirloskar Electric Factory and he has also received the retirement benefits. There is also evidence to the effect that on sympathy father of the plaintiff contributed his amount in favour of plaintiff to purchase the property. There is also evidence to the effect that PW.1 joined the Kirloskar Electric Company as a trainee and later on he was absorbed as a permanent employee on 27.12.1975. During 1978 the plaintiff's salary was Rs.270/- p.m. The consideration amount for purchase of site Nos.19, 20 and 21 was Rs.1,000/- for each site and in all Rs.3,000/-. The suit schedule property was purchased on 16.08.1978. Whereas the appellant became a permanent employee of the Kirloskar Electric Company during 27.12.1975. Ex.P.55 is the letter of Mysore Kirloskar Company, Harihar, issued to M Y Patil saying that he has been selected to undergo training at its establishment as an operative trainee for a period of one year w.e.f. 15.03.1973 and he will receive stipend of Rs.60/- per 38 month. EX.P.56 is the employment order issued by the Managing Director, Mysore Kirloskar Ltd., It is dated 19.3.1974 and it indicates that Maruthi Y Patil was employed in the company as temporary machine operator w.e.f. 21.3.74 during that period of employment, he was entitled to a basic wage of Rs.370/- per working day plus Dearness Allowance. EX.P.57 is the order of appointment dated 25.12.1974 as a machine operator. EX.P.59 is the memo dated 08.12.1975 wherein its contents disclose that M Y Patil has been informed that his work progress and conduct are found satisfactory and his appointment was confirmed as a machine operator w.e.f. 27.12.1975 (Grade III B wage at Rs.4). From the contents of EX.P.59 it is clear that service of the M Y Patil was confirmed way back on 08.12.1975 with a wage of Rs.4/- per day. The consideration amount as mentioned in the sale deed is Rs.1,000/- for each site and the sale deed in question was executed on 16th August, 1978.
39
40. The first defendant is the father of the plaintiff. He has not been examined either by the plaintiff or by the defendant. It is the case of the second defendant that first defendant contributed amount for the purchase of the property in the name of plaintiff. It is undisputed fact that there was no ancestral property. The retirement benefit earned by the defendant No.1 was alleged to have been given by the father of the plaintiff to his third son. Except oral evidence there is no documentary evidence to show that father of the plaintiff gave money to him to purchase the suit schedule properties in the name of the plaintiff. Though it is the contention of the learned counsel for the appellant that the property in question was purchased by the father in the name of his third son, but to establish this fact the father of the plaintiff has not been examined. There is an evidence to the effect that father of the plaintiff is absconding. The defendant No.2 has failed to establish that the father of the plaintiff 40 purchased the property in the name of the plaintiff since he did not examine the material witness namely, DW.1. Even the DW.1 has not filed any independent written statement. He simply adopted the written statement of the defendant No.1.
41. Though the substantial question of law was framed by this Court as stated earlier, but the fact remains that the plaintiff has instituted a bare suit for declaration to declare that he is the owner of the suit schedule property. Neither the plaintiff nor defendant have sought for partition of the suit schedule property. The relief sought by the plaintiff is only declaring that he is the absolute owner of the property based on the sale deed i.e., EX.P3 - sale deed. The plaintiff has established his right over the suit schedule property by producing the EX.P3 sale deed. Though the defendant has denied the interest of the plaintiff's title, but there is no acceptable evidence in this regard. The defendants were not able to establish that there was partition of the joint family properties. Besides there is nothing wrong 41 for the father to purchase the property in the name of he plaintiff through his self acquired funds. The retirement benefit of the father i.e., defendant No.1 can be utilised as he desires so. Such being the case the contention of the defendant No.2 that it is a joint family property is difficult to accept. More over this is not a suit for partition of the joint family properties. Therefore, in my view the lower appellate court was justified in reversing the finding of the trial court.
In view of the above discussion, I pass the following :
ORDER This Regular Second appeal is dismissed.
SD/-
JUDGE LB/YKL