Karnataka High Court
Sri Ponnuswamy vs Sri K Ganeshan on 31 January, 2014
Bench: K.L.Manjunath, Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF JANUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
REGULAR FIRST APPEAL NO.2190 OF 2010(PAR)
BETWEEN:
Sri Ponnuswamy
S/o late Periyaswamy
Aged about 90 years
R/at No.73/C, Housing Unit,
Kollambalyam,
Erode - 638 002. ...APPELLANT
(By Sri K.K.Vasanth, Advocate)
AND:
1. Sri K.Ganeshan
Aged about 66 years
2
S/o late P.Kannuswamy
R/at No.Old No.6/44
New No.44, Sri Ambal Nilayam
Basappa Road, Shanthinagar
Bangalore - 560 027.
2. Sri Chandrashekharan
Aged about 61 years
S/o late P.Kannuswamy
Since deceased by his LRs
2(a) Smt.C.Nirmala
Aged about 58 years
W/o late Chandrashekharan
2(b) Sri C.Raghu
Aged about 35 years
s/o late Chandrashekharan
2(c) Sri C.Karthi
Aged about 28 years
S/o late Chandrashekharan
2(d) Smt.Meeradevi
Aged about 30 years
S/o late Chandrashekharan
All are R/at No.Old No.6/44
New No.44, Sri Ambal Nilayam
Basappa Road, Shanthinagar
Bangalore - 560 027.
3. Sri Sukumaran
Aged about 58 years
S/o late P.Kannuswamy
3
R/at No.Old No.6/44
New No.44, Sri Ambal Nilayam
Basappa Road, Shanthinagar
Bangalore - 560 027. ...RESPONDENTS
(By Sri Y.K.Narayana Sharma, Advocate)
*****
This RFA filed under Section 96, R/w O-XLI, Rule
1 of CPC, against the Judgment and decree dated
15.01.2010 passed in O.S.No.3949/2003 on the file of
the XXII Addl. City Civil Judge, Bangalore, dismissing
the suit for the partition and separate possession.
This RFA coming on for admission this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
The unsuccessful plaintiff has filed this appeal challenging the judgment and decree passed by the XXII Additional City Civil Judge, Bangalore, dated 15.01.2010, passed in O.S.No.3949/2003. 4
2. Heard the counsel for the parties.
3. The appellant/plaintiff filed the suit for partition and separate possession claiming half share in the plaint schedule properties. Two properties situated in Bangalore i.e., item no.1 at Vittal Nagar and item no.2 at Shanthinagar are the subject matters of the suit. The appellant is the paternal uncle of the defendants. The defendants are the sons of Kannuswamy, who was the elder brother of the plaintiff. The plaintiff, Ponnuswamy and Kannuswamy were the two children of Late Periyaswamy. According to plaint averments, Periyaswamy the father of the plaintiff was the kartha of the joint family. The plaintiffs father died 18 years prior to the suit. His elder brother Kannuswamy also died 16 years prior to the suit living behind him, the defendants as his sole legal heirs. It is the specific case of the plaintiff that his father 5 Periyaswamy originally hails from Kollambalyam village in Tamil Nadu, where he had ancestral properties. He sold the same in the year 1950-1951. Out of the sale consideration received from the aforesaid ancestral properties, he established his textile business in handloom at Vittal Nagara, Chamarajpet, Bangalore and also at Thiruvarur in Tamil Nadu.
4. According to the plaintiff, he always assisted his father in his business and the family had a very good business and out of the income from the business, his father Periyaswamy purchased item no.1 in the name of his elder brother Kannuswamy, under registered sale deed dated 13.12.1956. The plaintiff was exclusively involved in marketing and sale of clothes and silk sarees, while Kannuswamy was incharge of the administration and finances of the business. Out of the profits of the family business, suit item no.2 was purchased by Kannuswamy and also one more property 6 at Kilaiyur village in Tamil Nadu. All these properties were purchased in the name of Kannuswamy out of the joint family business and family also was running a business in the partnership firm known as 'M/s.Kannuswamy and Company'. Though the said company was named after Kannuswamy, the business was established by his father Periyaswamy the plaintiff and his brother were partners in the aforesaid firm.
5. It is also the case of the plaintiff that there was a huge loss in the family business and the brothers were unable to discharge the liability. In the circumstances, Kannuswamy was authorized to sell the Kilaiyur property and by selling the said properties debts were cleared. His brother Kannuswamy did not have any independent business of his own or income and for the sake of convenience, the plaintiff had to set- up a business at Erode and he was looking after the business in Bangalore and Erode together. Contending 7 that he is also entitled for half share in the suit property, the suit came to be filed for partition and separate possession.
6. The defendant nos. 2 and 3 contested the suit. According to them, the suit properties are self- acquired properties of their father and that the plaintiff has filed a false and frivolous suit after the death of Periyaswamy and Kannuswamy, only to knock off the defendant's property. They denied any alienation made by his father in Kilaiyur village. According to them, they did not have any knowledge of any sale made by his father. It is the specific case of the defendants that their grandfather, Periyaswamy died in the year 1979 and their grandmother died on 12.07.2002.
7. It is also contended by the defendants that their father Kannuswamy purchased suit item no.2 in the year 1958 and constructed a house by mortgaging 8 the same to L.I.C. in order to loan from L.I.C. Their father Kannuswamy was enjoying the suit properties as his absolute properties. The plaintiff did not claim any right over the suit properties during the life time of their father and he is estopped from making any claim now. They also denied the sale of property at Kollambalyam village by their grandfather.
8. According to them Kannuswamy started the business in the year 1944 at Tamil Nadu, with the financial assistance given to him by his father-in-law and later he discharged the loans advanced by his father-in-law. According to them, their father also established the business at Erode and Thirovarur at Tamil Nadu. Later the plaintiff joined Kannuswamy at Erode in the business. In the year 1950-51, Kannuswamy shifted his business to Bangalore and started his weaving factory at Okalipuram at Bangalore along with one Murugesh Mudaliar. Later on, he 9 established his own independent weaving factory at Vittal Nagar and opened a shop at Raja Market, Avenue Road, Bangalore. Subsequently their grandfather Periyaswamy and the plaintiff, Ponnuswamy opened the business, 'M/s.Kannuswamy and Company' in the year 1954 and the same was registered as partnership firm on 29.02.1956 and later on the plaintiff retired from the firm on 12.06.1958 by releasing himself from the firm. Therefore, they contend that the plaintiff has no right to claim any share in the plaint suit property.
9. Based on the pleadings, the following issues were framed by the court below:
"i. Whether the plaintiff proves that the suit schedule properties constitute of both ancestral and joint family properties acquired from the nucleus of the ancestral property of plaintiff and defendants?10
ii. Whether the plaintiff proves that he is entitled for partition and separate possession of ½ share in the schedule properties?
iii. Whether the plaintiff proves that the defendant should be directed to render the accounts?
iv. Whether the defendants prove that suit properties are the separate properties of P.Kannuswamy?
v. Whether the defendants prove that the suit as brought without seeking for the relief of declaration is not maintainable?
vi. Whether the valuation of suit made is incorrect and CF paid is not proper?
vii. Whether the suit is bad for non-joinder of necessary parties?
viii. What decree or order?"11
10. To prove their respective contentions, the plaintiff got himself examined as PW-1 and he relied upon Exhibits-P1to P6. The defendant was examined as DW-1 and he relied upon Exhibits D1 to D28. The Trial Court held issue nos.1, 2, 3, 5 to 7 in negative and issue no.4 in affirmative. Ultimately, the suit filed by the plaintiff came to be dismissed holding that the suit properties are self-acquired by late Kannuswamy. This judgment and decree is called in question in this appeal.
11. We have heard Shri.K.K.Vasanth, learned counsel for the appellant and Shri.Y.K.Narayana Sharma, learned counsel for the respondent.
12. Though several grounds are urged in the appeal memo, at the time of arguments, the learned counsel for the appellant has canvassed the following points only:
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According to him the defendants who contend that the suit properties are self-acquired properties of Kannuswamy, have to discharge the burden placed on them. According to him Kannuswamy did not had any independent business income. It is his case that when the ancestral properties situated in Tamil Nadu has been sold by Periyaswamy, Ponnuswamy and Kannusamy, the Trial Court was required to hold that out of the sale consideration received by the father of the appellant, the business was established both in Bangalore and Erode and any property acquired out of such income are required to be considered as the properties acquired out of joint family income.
According to him, the appreciation of the evidence by the court below is perverse and liable to be set-aside.
13. Per contra, the learned counsel for the respondent, Shri.Y.K.Narayana Sharma, submits that 13 the trial court was justified in holding that the suit properties are self-acquired properties of the respondent's father. According to him, when the appellant has approached the Court stating that the suit properties are the joint family properties acquired out of the joint family income, the appellant is required to prove that there was a joint family income and that the joint family business was being run by Kannuswamy and out of such income, the suit properties were acquired in the name of Kannuswamy on behalf of the joint family. According to him, the initial burden placed on the plaintiff has not been discharged by them.
14. The Trial Court has given a clear cut finding that there was no joint family business or joint family consisting of Periyaswamy, Ponnuswamy and Kannuswamy. The finding of the trial court is also that Periyaswamy did not had any ancestral property. If 14 Periyasway has sold any property either in Kollambalayam or other places in Tamil Nadu, the appellant cannot be permitted to contend that the properties sold by Periyaswamy as his ancestral property. Therefore, he contends that when initial burden has not been discharged by the plaintiff, the question of calling upon the defendants to prove the negative will not arise at all.
15. According to him Kannuswamy was running the business on his own and the business run by Kannuswamy was not a joint family business. It was a partnership business only for two years. The plaintiff who joined the firm in the year 1954 got himself retired from the firm in the year 1958. Therefore, a retired partner cannot contend that the properties acquired by Kannuswamy as joint family properties. He further contends that the very fact that the suit is filed 16 years after the death of Kannuswamy only shows that the 15 plaintiff in order to knock off the valuable rights of the defendants, as an afterthought filed the suit on false and frivolous ground. Therefore, he requests the Court to dismiss the appeal.
16. Having heard the counsel for the parties, the following points would have to be considered by this Court in this appeal:
"i) Whether the plaintiff proves that the suit schedule properties were acquired in the name of Kannuswamy out of the joint family income? And
ii) Whether appreciation of evidence by the Trial Court is perverse and liable to be se-aside?"
17. The relationship between the plaintiff and defendants are not in dispute. The dispute is in regard to the mode of acquisition of property by late Kannusamwy, the father of the defendants. According to 16 the plaintiffs both the properties were acquired by Kannuswamy out of the joint family business income of the plaintiff and the defendant's father. Therefore, the burden is heavy on the plaintiff to show that there was a joint family business and such business was being managed by Kannuswamy and even if the said business was not managed by Kannuswamy, that out of the income from such business, the suit properties were purchased in the name of Kannuswamy.
18. Item no.1 of the plaint schedule property is the Vital Nagar property purchased on 13.12.1956. Subsequently, item no.2, was purchased in 1958. The plaintiff does not dispute that he became one of the partners of 'Kannuswamy and Company' along with his brother Kannuswamy vide registered partnership deed dated 29.02.1956 and got released himself on 12.06.1958. When he admits that he was a partner of the firm 'Kannuswamy and Company' between 17 29.06.1956 and 29.02.1958 any property acquired prior to he joining as a partner he was required toclaim the share in such properties while retiring from the partnership firm. When he got himself retired in the year 1958 without retaining any claim on any one of the suit properties he cannot now contend that he has a share in the property. Before he joining as a partner, Kannuswamy was running the business at Bangalore and also at Erode. There is nothing on record to show that the business run by Kannuswamy was established out of the contribution of the joint family. Even if the plaintiff contends that Periyaswamy, Ponnuswamy and Kannuswamy were living together. At best, he may contend that they were residing together and they may be members of a joint family but there cannot be any presumption that there were a joint family properties and liable for partition.
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19. Item no.1 was acquired prior to the plaintiff joining the firm. Item no.2 was acquired in the year 1958 after the plaintiff retired from the partnership business. It has also come in the evidence that for the purpose of construction of the house on suit item no.2 Kannuswamy had obtained loan from LIC of India and the property was mortgaged. The loan has been discharged by him. If it is to be joint family property, the plaintiff would not have allowed Kannuswamy to avail loan from LIC in his individual capacity treating it as a self-acquired property of Kannuswamy.
20. We have also seen Exhibit-D25 and D26. Exhibit-D25 is a mortgaged deed dated 10.05.1966 executed by Kannuswamy alongwith Periyaswamy and Ponnuswamy. The recital of Exhibit-D25 clearly shows that Kannuswamy was the absolute owner of the mortgage property. Mortgage property is suit no.1 at Vital Nagar. When the plaintiff and his father 19 Periyaswamy in the mortgage deed have acknowledged the absolute ownership of Kannuswamy in respect of suit item no.1 and similarly, suit no.2 also discloses the very same recitals and when these two documents were executed in the year 1966 and 1967, respectively, according to us it is not open for the plaintiff to contend that the suit no.1 is acquired out of the joint family income.
21. Exhibit-D26 was executed by the plaintiff, his father and Kannuswamy for borrowing loan by mortgaging the property. If it is a joint family property there was no impediment for the plaintiff and his father to contend that all the three persons who are mortgaging the property are the absolute owners. When the plaintiff and his father have stated in the mortgage deed that it is the absolute property of late Kannuswamy, after 40 years, the plaintiff cannot be 20 permitted to contend that he is also having share in the suit property.
22. In addition to that, as rightly pointed out by Shri.Y.K.N.Sharma, when Kannuswamy died 16 years prior to the suit, the plaintiff have laid a claim in the suit schedule property only as an after thought. As stated supra, no documents are produced to show that item nos.1 and 2 were purchased out of the joint family income, in order to treat them as joint family properties. In the circumstances, the trial court after considering the oral and documentary evidence has come to the conclusion that the plaint schedule properties are self- acquired property.
23. On going though the same this Court does not find any ground for interference with the well- reasoned findings of the trial court. Accordingly, both 21 the points formulated are answered against the appellant. In the result, the appeal is dismissed.
24. Parties to bear their costs.
Sd/-
JUDGE Sd/-
JUDGE JJ