Karnataka High Court
Sri D Shekar vs Smt M Rathna on 13 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MS.JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL No.25 of 2018 (PAR)
BETWEEN :
SRI.D.SHEKAR
S/O LATE DEVAPPA
AGED ABOUT: 58 YEARS
RESIDING AT NO.31
K.H.RANGANATHA COLONY
MYSORE ROAD
BENGALURU - 560 039. ... APPELLANT
(BY SRI.RAGHAVENDRACHAR.M, ADVOCATE)
AND:
SMT.M.RATHNA
W/O D.SHEKAR
AGED ABOUT : 49 YEARS
RESIDING AT MUNICIPAL NO.12
4TH 'A' MAIN ROAD
BYRAVESHWARANAGAR
MUDALAPALYA MAIN ROAD
2
OPP: SRI.VARASIDDHI VINAYAKA
TEMPLE, BEHIND CORPORATION OFFICE
BENGALURU - 560 038.
... RESPONDENT
(NOTICE TO RESPONDENT IS DISPENSED
WITH V/O DATED 13.01.2020)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE PASSED BY THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY (CCH-69)
DATED:23.09.2017 IN O.S.NO.4117/2016 AND ETC.
THIS REGULAR FIRST APPEAL COMING ON FOR
ORDERS, THIS DAY, NAGARATHNA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant herein was the plaintiff in O.S.No.4117/2016, while the respondent herein was the defendant in the said suit, who was placed ex parte therein. Appellant had filed the suit seeking partition and separate possession of his half share in the suit schedule property which is a residential house situated in Byaraveshwaranagar, Bangalore, shown in detail in the schedule to the plaint. By judgment and decree dated 23.09.2017, the said suit was dismissed by the LXVIII Additional City Civil and Sessions 3 Judge, Bengaluru City. Being aggrieved, plaintiff has preferred this appeal.
2. Briefly stated, facts are that, appellant is the husband, while the respondent is the wife. They were married on 24.03.1983 at Magagai Dondasa Kalyana Mantapa, Gavipuram, Guttahalli, Bengaluru. Initially, the relationship between them was cordial and harmonious. The appellant / plaintiff purchased a property bearing No.55, Muncipal No.55/3, 7th B1 Main road, RPC Layout, Railway Pipe Line, Chord Road, Bengaluru, measuring East to West 40 feet and North to South 30 feet, from its owner and vendor - P.N.V.Upadhya, in the name of his wife - respondent herein. According to the appellant - plaintiff, defendant had no independent source of income and the entire sale consideration for the purchase of the said property was paid by the appellant. Subsequently, construction was put up on the said site after obtaining sanctioned plan in the name of the defendant.
4
3. When the matter stood thus, defendant developed friendship with B.H.Narayanaswamy and her relationship with the appellant deteriorated. The aforesaid property was sold by her and the suit schedule property was purchased in the name of the defendant. Defendant deserted the appellant without any reasonable cause. Appellant sought for half share in the suit schedule property, but the defendant refused to part with the half share in the suit schedule property. Hence, plaintiff - appellant sought for half share in the suit schedule property.
4. In response to the suit summons and Court notices, defendant did not contest the same and she was placed ex parte. Plaintiff got himself examined as PW.1 by filing his affidavit in lieu of examination-in-chief and seven documents were marked as Exs.P1 to P7 and closed his side. As already noted, defendant did not appear in the suit and she was placed ex parte.
5
5. On hearing learned counsel for the appellant - plaintiff, the trial Court raised the following points for its consideration:-
"1. Whether the plaintiff proves that the property bearing No.55. Municipal No.55/3, 7th B1 Main Road, RPC Layout, Railway Pipe Line, Chord Road, Bengaluru, was purchased in the name of defendant, out of his (plaintiff's) earnings?
2. Whether the plaintiff proves that the suit schedule property has been purchased out of the sale proceeds of the property bearing No.55, Municipal No.55/3, 7th B1 Main Road, RPC Layout, Railway Pipe Line, Chord Road, Bengaluru?
3. Whether the plaintiff proves that he has got half share in the suit schedule property?
4. Whether the plaintiff is entitled for the relief sought?
5. What order or decree?"
6. The trial Court answered point Nos.1, 3 and 4 in the negative and point No.2 in the affirmative and dismissed 6 the suit by its judgment and decree dated 23.9.2017. Being aggrieved, the plaintiff has preferred this appeal.
7. We have heard learned counsel for the appellant - plaintiff and perused the material on record.
8. Appellant's counsel submitted that when the relationship between the appellant and the respondent who are husband and wife was cordial, appellant had purchased a house property in RPC Layout in the name of his wife - respondent / defendant. Subsequently, appellant invested on the said property for putting up a construction thereon. No doubt, the aforesaid property in RPC Layout was purchased in the name of his wife, but the funds for the said purchase was paid from the appellant as the defendant had no independent source of income to invest in the said property. But the respondent stayed away from the appellant, deserted him and developed an illicit relationship with other person. She sold the property purchased in her name in RPC Layout and purchased the suit schedule property which is located in 7 Byaraveshwaranagar, Bengaluru. Appellant/plaintiff sought for share in the suit schedule property as the said property was purchased by the defendant out of the sale proceeds of the house property of the RPC Layout which was purchased by the appellant in the name of the respondent. Therefore, the plaintiff has a share in the said property and he rightly claimed the same by filing the suit, when the respondent refused to partition the said property. He contended that the trial Court has not appreciated the case of the appellant in its proper perspective and erroneously answered Point Nos.1, 3 and 4 in the negative and Point No.2 in the affirmative and consequently, declined to grant half share in the suit schedule property to the appellant. He submitted that the appellant has a good case on merits and therefore, the appeal may be admitted.
9. Having heard the learned counsel for the respective parties, we find that there is no dispute that the appellant and respondent were married on 24.03.1983 and the appellant - husband of the respondent purchased the 8 house property bearing No.55, Municipal No.55/3, 7th B1 Main Road, RPC Layout, Railway Pipe Line, Chord Road, Bengaluru, in the name of the respondent - wife . Thus, she became the owner of the said property. Having regard to Section 14 of the Hindu Succession Act, 1956, even though appellant contends that the source of funds for the purchase of the said property was from him as the respondent had no independent source of income, the purchase of the said property in the name of the respondent - wife is in a sense a benami transactions. However, having regard to sub Section 2 of Section 3 of the Benami Transactions (Prohibition) Act, 1988, husband can purchase the property in the name of his wife or unmarried daughter and such a purchase shall be presumed to have been purchased for the benefit of the wife or the unmarried daughter, unless the contrary is proved.
10. In the instant case, the appellant has not been successful in proving that the property purchased in RPC Layout, Bengaluru, was not for the benefit of his wife. In fact, the sale deed was in the name of his wife - respondent herein. 9 Therefore, respondent was at liberty to sell the said property or to deal with the said property in the manner known to law.
11. In the instant case, respondent - wife sold the property bearing No.55, Muncipal No.55/3, 7th B1 Main road, RPC Layout, Railway Pipe Line, Chord Road, Bengaluru, and out of the sale proceeds has purchased the suit schedule property. The suit schedule property is also purchased in her name. The appellant in law has no right, title or interest in the suit schedule property as the respondent had the right to deal with the property bearing No.55 in RPC Layout and she sold the same and purchased the suit schedule property. In the circumstances, the trial Court was justified in declining to grant the relief to the appellant.
12. We do not find any infirmity in the judgment and decree of the trial Court. The trial Court, however, observed that the defendant - respondent herein could consent to provide a share in the suit schedule property to the plaintiff. We reiterate the said observation in this judgment also. 10
13. In the circumstances, we do not find any merit in the appeal. Hence, the appeal is dismissed reserving liberty to the appellant and respondent to enter into a settlement and the respondent is at liberty to grant share to the appellant, if so advised.
For the said purpose, appellant could seek the assistance of other persons in the family and well-wishers Subject to the aforesaid observations, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE VMB