Allowed

Sri v. Prakash v Sri K v Jayadeva

Karnataka HC9 Dec 2020RFA/1670/2012

Case brief

AI extract

What is this about?

In a first appeal regarding a suit for partition, the High Court of Karnataka set aside the trial court's dismissal. Relying on Section 45 of the Transfer of Property Act, the court held that since the sale deed named both brothers for consideration without specifying shares, they are entitled to equal interests absent proof to the contrary. The court decreed that the appellant is entitled to a ha

What did the court decide?

The impugned judgment and decree of the trial court are set aside, and the plaintiff is decreed to be entitled to a half share in the schedule property.

Sri v Prakash Vs Sri K v Jayadeva — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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REGULAR FIRST APPEAL NO. 1670/2012

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BETWEEN:

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Sri.V.Prakash S/o K. Veerabhadrappa Aged about 52 years Residing at No.648 10^th ‘E’ Main, 6^th Block Rajajinagar, Bangalore-10.

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...Appellant

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(By Sri.Ravishankar for Mr.M.Shiva Prakash, Advocate)

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AND:

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Sri. K.V.Jayadeva S/o K.Veerabhadrappa Aged major R/at II Floor, Old No.14 & 15 New No.23, 1^st Main Road Sheshadipuram Bangalore-560020.

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…Respondent (By Sri.M.Erappa Reddy, Advocate ) This RFA is filed under Section 96 of CPC, against the Judgment and Decree dated 30.06.2012 passed in O.S.No.3087/2007 on the file of the XXII-Addl. City Civil

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Judge, Bangalore, dismissing the suit for partition and separate possession.

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This RFA Coming on for further hearing this day, the Court delivered the following:

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JUDGMENT

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Appeal is directed against the Judgment and Decree dated 30.06.2012 passed by the learned XXII Additional City Civil Judge, Bangalore City in OS No. 3087/2007, wherein the suit of the plaintiff for partition and separate possession came to be dismissed.

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In order to avoid confusion and overlapping, parties are addressed in accordance with their ranking, as stood before the Trial Court.

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In the nature and circumstances of the case, it is necessary to mention the names of the parties as stated in the cause title of the original suit:

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Plaintiff - Sri V. Prakash

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The plaintiff in OS No. 3087/2007 claimed that

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the property assigned with khatha No. 23/3 was purchased under a registered sale deed dated 17.01.1985 by him and the defendant. Both are full brothers. The property is situate in the 1^st main road, Seshadripuram, Bangalore measuring East to West 41 ½ feet and North to South 30 feet. The plaintiff further states that it was a joint purchase and sale consideration was shared by both the plaintiff and the defendant and from all the angles, they are having equal rights, title and interest, etc., It is also claimed by the plaintiff that the property was jointly developed by the plaintiff and the defendant, by demolishing the old structure and constructing cellar, ground, first and second floor. The defendant exercising his option, opted to reside in second floor along with his family. The entire first floor was retained by the plaintiff. The parties came to mutual understanding to the effect that the ground and cellar portions would be shared equally by letting out and getting the rents to be distributed. The defendant inducted Tata Tele Services Limited in the ground floor and other portion to Lifetime Health Care Private

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Limited on a monthly tenancy and the defendant was authorized to collect the rents. The plaintiff is entitled for half share in the cellar and ground portion in the schedule property.

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The defendant entered appearance denied the purchase of the schedule property and joint contribution of the sale consideration. The defendant states that the plaintiff was not even an earning member and there was no question of he developing the property. The defendant alone developed the property. He was having exclusive possession over the schedule property. There was an oral partition of the property under the partition deed dated 14.11.1993. The plaintiff was given first floor and the defendant continued to collect the rentals from the tenants of all other

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accommodations.

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It is also contended that the father of the plaintiff and the defendant requested the defendant to get the sale deed registered between them. By honouring the words of

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the father, the defendant agreed to get the sale deed in the joint names of plaintiff and himself.

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Learned Trial Judge on the basis of pleadings and contentions of both the parties, framed the issues in respect of co-ownership, share in the schedule property, mesne profits, ascertaining the nature of the property, title, relinquishment of all rights of the suit schedule property by

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the plaintiff and also estoppel against the plaintiff, which are as under:

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“1. Whether the plaintiff proves that suit property belongs to the co-ownership of plaintiff and defendant?.

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2. Whether the plaintiff is entitled for a share in the suit property?

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3. Whether the plaintiff is entitled for mesne profits?

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4. Whether the defendant proves that suit property is his self acquired property?

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5. Whether defendant proves the partition dated 14.11.1993?

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6. Whether the defendant proves that the plaintiff has relinquished all his rights in the suit property?

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7. Whether the defendant proves that plaintiff is estopped form claiming partition in the suit property?

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8. Whether court fee paid is insufficient?

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9. What decree or order?”

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Before the Learned Trial Judge, plaintiff got

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examined himself as PW-1 and got marked documents at Ex.P1 to Ex.P6. On the contrary, the defendant is examined as D.W.1 and got examined another witness as DW-2 and got marked Ex.D1 to Ex.D7 in support of his defense.

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Upon conclusion of trial, learned trial Judge

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dismissed the suit. The same is challenged by the plaintiff in this appeal.

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Learned counsel for the appellant

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Mr. Ravishankar for Mr. Shivaprakash submitted that the documentary evidence provided by the plaintiff makes it crystal clear that the entire schedule property belonged to the plaintiff and the defendant. It is also stated that the property that was in dilapidated condition was purchased in the year 1985 and later it was demolished and constructed portions over the schedule property i.e., of cellar, ground floor, first floor and second floor. Learned counsel for the plaintiff would

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submit that in ordinary course, it goes without saying that the co-owners are entitled for equal half in the total property.

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Learned counsel for the respondent/defendant is

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absent.

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It is a first appeal under Section 96 of Code of Civil Procedure. By the evidence of the plaintiff who is examined as PW-1 is that the property was purchased jointly by both of them and without explaining the contents of Exhibit D3, the document was prepared and the signature of the plaintiff was obtained. In this connection, memorandum of oral partition is denied by the plaintiff. The defendant contended that the properties were divided equally and it is so stated therein. Ex.D3 is not legible. However the relevant portion is extracted herein below:

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“And whereas on settlement, the commercial complex constructed upon the schedule a property was divided amongst the First Party and the second party and the First party therein was allotted the Basement, Ground, and second floors of the commercial complex along with the proportionate undivided share and interest in schedule A property and the second party herein was allotted the First Floor of the commercial

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complex constructed on the schedule “A” Property along with the proportionate undivided share and interest therein.”

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Ex.D3 imposes a condition of partition. In overall

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context and circumstances of the case, it is to be noted that this suit is basically not a traditional partition suit which would normally be filed based on joint possession. Though the plaintiff and the defendant are siblings, it is not that they are claiming partition by virtue of joint possession. The plaintiff is claiming partition which in literally means to ‘cut’ or to ‘divide’ the property in two halves.

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The evidence of the defendant who is examined as DW-1 is that the schedule property bearing Old No. 14 and 15, New No. 23, 1^st main road, Seshadripuram, Bangalore measuring East to West 41 ½ feet and North to South 30 ½ feet was purchased by him from Smt. Sarojamma under registered sale deed dated 17.01.1985 for a valuable consideration of Rs.1,20,000/-. The said sale deed is preceded by a sale agreement. The sale consideration was

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paid by him at the time of registration and under the sale agreement, an advance amount of Rs.55,000/- was paid.

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Under the Sale Deed, the agreement was handed over. The sale deed was obtained including his brother i.e., the plaintiff and the same was done at the instance of his father. The defendant further states that after purchase of the suit property demolishing the same, new construction was made consisting of basement, ground floor and two upper floors. He also obtained water, gas and electricity connection and invested huge amount. Thereafter the plaintiff prepared a Memorandum of Partition showing the properties allotted to their shares. The said memorandum of partition was dated 14.11.1993. Both himself and the plaintiff witnessed, signed that they have acted as per the partition and all the records were obtained. As of now, the building is a full fledged structure with basement, ground, first and second floor.

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It is stated that the municipal numbers allotted to the property as 23/1, 23/2, 23/3 and 23/4. The plaintiff is in possession and enjoyment of the respective 1^st floor and he

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received a sum of Rs.1,00,000/- as building advance in respect of the first floor for the said building. Earlier the same was allotted to the share of the plaintiff in the partition.

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The defendant further states that he is using the premises No. 23/4 which is the second floor as his residence. As per the lease deed dated 07.06.2006, he let out ground floor to M/s Tata Tele services and the plaintiff has given his signature as consenting witness. He has entered into an rental agreement with the tenants and totally in control of the property. He relies on the memorandum of partition. The shop bearing Municipal No. 23/1 which is the ground floor was let out to Lifetime Healthcare Pvt. Limited. Ex.D5 is the sale

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deed.

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In the overall context and circumstances of the case, the averments of the plaintiff is seriously opposed by the defendant regarding Joint purchase and Joint development except the fact that the plaintiff and the defendant No. 1 are brothers. The existence of the dilapidated structure in the year 1985 in its erstwhile shape bearing No.

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14 and 15, 1^st main road, Seshadripuram, Bangalore claimed to have been purchased by the defendant. However, the plaintiff claimed that it was a joint purchase with joint contribution by both the plaintiff and the defendant.

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The defendant contends that there was no joint purchase of the schedule property. On the other hand, he had entered into an agreement in respect of the schedule property for Rs.1,20,000/- and had paid a sum of Rs.55,000/- in advance and at the time of registration, the balance consideration of Rs.65,000/- was paid. That falsifies the ease of the plaintiff.

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The moot question would be whether the plaintiff is entitled for equal share in all aspects of the schedule property.

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In the meanwhile, the plaintiff claims that there was partition before the Panchayathdars as early as in 1993 as per Ex.D3, but is denied tooth and nail by the plaintiff, who says that the document is not acted upon and not entered

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into and the defendant has tried to shift the responsibility on the plaintiff for having prepared the draft. At the end of the day, the fighters are two brothers, one is the plaintiff and another is the defendant. The claim of the plaintiff is half share in its strict sense over the schedule property and in so far as the defendant is concerned, house out and out was constructed at his sweat and blood. On the other hand, out of courtesy and with respect to his father, he gives first floor to the plaintiff. It becomes an admitted fact that the plaintiff and the defendant are in possession of the first floor and the second floor respectively. In the meanwhile, the ground floor and other portion of the cellar are also there. The other portions are rented out by the defendant and collecting rent there from.

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Learned Trial Judge in its judgment finds that the half share means as found in the panchayath partition and that the plaintiff has to consign himself for just first floor. Learned Trial Judge during his finding has observed in para - 15 as under:

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“It is vehemently argued by the counsel for the plaintiff that in Ext.D.3, it is shown that stamp paper was purchased on 20.10.1993. In this connection, D.W.1 has been cross-examined by the counsel for plaintiff, wherein he has stated that it is purely a typographical error. Thin contention of the defendant taken in the written statement appears to be true also. Moreover, the plaintiff has not denied or disputed his signature found in Ext.D.3 as per Ext.D.3 (a). At the last page of Ext.D.3, plaintiff has put his signature for having received pay order for Rs.1,00,000/towards the advance amount of 1^st floor property. Even though plaintiff has taken a different stand in this regard, the fact that he has put his signature to the endorsement made at the last page of Ext.D.3 for having received pay order for Rs.1,00,000/- towards advance amount of 1^st floor property, gives a clear indication that there was division of property between plaintiff and defendant and in that connection only plaintiff has received advance amount towards the 1^st floor from the tenant.”

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23. Learned Trial Judge also observes in Paragraph 14

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of the Judgment as under:

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“ On the other hand, his evasive answers in his cross-examination coupled with clinching evidence clearly goes to show that he is trying to conceal true facts regarding division of suit property between him and defendant as per Ext.D.3 in the year 1993. Ext.D.1 is the khata extract, which is standing in the name of defendant. He has admitted that with regard to the other portions, khatha has been transferred to the name of defendant. But he remained silent when asked as

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to when such khatha was transferred in the name of defendant in regard to other portions as per the division between them. Even though he has tried to state that he had filed objection before the corporation authorities while bifurcation of khatha, not even a piece of paper is produced before this court to prove such contention”.

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As stated above, there must be some yardstick to purchase and state the demarcations. Ex.D5 is the sale deed simplicitor in favour of K.A.Jayadeva S/o Veerabhadrappa and Prakash S/o Veerabhadrappa. It is just sale deed, nothing but a transfer. Now the question that has come up for consideration is as to whether on facts, the defendant and the plaintiff should be confined to first floor and that the defendant who is in possession of the second floor is entitled for all right, title and interest and for other portions also.

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The menace of measuring ownership and other aspects of Apartment, wherein undivided right, title and interest over the built up area and the land area are in question for botheration herein. On the other hand, the property is transferred without naming the measurement will have to go equally in favour of purchasers. Here, it is

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necessary to mention Section 45 of Transfer of Property Act

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1882, which reads as under:

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"Joint transfer for consideration"

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“Where immovable property is transferred for consideration to two or more persons, and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.

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In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.”

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No doubt Ex.P1 satisfies the following transaction.

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It is the sale deed standing in the name of the plaintiff and the defendant for valuable consideration. But distinct shares

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are not separately mentioned therein, and then the result

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would be that they would be entitled for their equal shares. The defendant has produced the Panchayath Parikath as Ex.D3 stated to be ‘Memorandum of Oral partition’. There are two witnesses P.N. Shivakumar and Jayaprakash to the said document. DW-2 is the attester of said Ex.D3.

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The documents produced by the defendants are the khatha extract which is marked Ex.D1 in respect of property bearing No. 23/3. However the khatha what actually transpired while getting the khatha of the other portions.

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In the circumstances of the case, the partition deed sought to divide the property in pursuance to the sale deed. As I have stated earlier, it is not a regular kind of partition as it takes place among the co-parceners in the joint Hindu family. The present phenomena is two brothers, out of them one claims that the property was purchased jointly as stated. By going through the version and language of Section 45 of the Transfer of Property Act, no separate or uneven shares are conveyed under the sale deed. In the absence of any contradictory circumstances, the sale deed makes it clear

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that 50:50 in respect of the schedule property for a valuable consideration of Rs.1,50,000/-. In this connection, there is no specific evidence led by the defendant to say that he has wholly and solely contributed the entire sale consideration. On the other hand, his explanation is that the plaintiff is nothing but brother of the defendant, so that his name also came to be mentioned and the defendant has accepted. This explanation neither appears to be sound not appropriate.

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In so far as the Memorandum of partition is concerned, it does not refer to the details of khatha numbers of the other shares and holding of khatha of each of those portions. Moreover, there is no reliable and acceptable material to say that the defendant has alone contributed in respect of construction over the schedule property. It cannot be forgotten for a while that the defendant has been receiving rents from the tenant in the let out portions.

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In the overall context and circumstances of the case, in so far as the ground level is concerned, no other proof is required to hold that the plaintiff is a co-owner. In

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the same way, no convincing evidence is placed before the Court to hold that the share of the plaintiff is limited only to the first floor. In the absence of convincing circumstances, the learned Trial Judge erred in appreciating the facts and context of the matter and rejected the relief of partition as prayed for.

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The plaintiff is entitled for equal share at par with the defendant in the suit schedule property.

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I find that the appreciation of the evidence is not proper and calculation of shares is not done at par with the legal principles and equity. In the given circumstances, Impugned Judgment liable to be set aside.

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33. In the result, the appeal is allowed .

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The Judgment and Decree dated 30.06.2012 passed by

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the Trial Court in O.S. No. 3087/2007 is hereby set aside.

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The suit of the plaintiff in OS No. 3087/2007 is decreed holding that the plaintiff is entitled for half share in the schedule property.

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There shall be a separate enquiry for mesne profits.

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Sd/JUDGE

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mbb

Sri v. Prakash v Sri K v Jayadeva

Case brief

What is this about?

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Sri v. Prakash v Sri K v Jayadeva

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