Dismissed

Mr.S.Lakshmanan v. Mr.S.Balasubramanyam

Karnataka HC16 Mar 2023RFA/1830/2017

Case brief

AI extract

What is this about?

This appeal against an ejectment decree was dismissed. The High Court upheld the Trial Court's decision, relying on a registered relinquishment deed executed by the appellant and his mother, finding them entitled to vacant possession of the property.

What did the court decide?

The appeal was dismissed with costs, and the impugned judgment and decree dated 06.09.2017 were confirmed.

Mr.S.Lakshmanan Vs Mr.S.Balasubramanyam — Property and Title | Karnataka HC (2023)

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1 - RFA No. 1830 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA REGULAR FIRST APPEAL NO. 1830 OF 2017 (EJE)

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BETWEEN:

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MR.S LAKSHMANAN, S/O LATE SETHURAM LYER, AGED ABOUT 61 YEARS, RESIDING AT NO.1114, 10^TH MAIN, 5^TH CROSS, PRAKASH NAGAR, BANGALORE - 560 021

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…APPELLANT

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(BY SRI: K.P. JAYASIMHA, ADVOCATE)

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AND:

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Digitally signed by SUNITHA GANGARAJU Location: High Court Of Karnataka

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MR. S BALASUBRAMANYAM, AGED ABOUT 76 YEARS, S/O LATE SETHURAM IYER RESIDING AT NO.1114, 10^TH MAIN, 5^TH CROSS, PRAKASH NAGAR, BANGALORE - 560 021

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MR VISWANATHAN, S/O LATE SETHURAM IYER AGED ABOUT 68 YEARS, RESIDING AT NO.1114, 10^TH MAIN, 5^TH CROSS, PRAKASH NAGAR, BANGALORE - 560 021

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MR. R. RAGHURAMAN, S/O LATE S. RAMACHANDRAN AGED ABOUT 30 YEARS, RESIDING AT NO.1114, 10^TH MAIN, 5^TH CROSS, PRAKASH NAGAR, BANGALORE - 560 021

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…RESPONDENTS

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(BY SRI: V.F. KUMBAR, ADVOCATE FOR R1 TO R3)

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RFA No. 1830 of 2017

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED; 06.09.2017 PASSED IN OS.NO.4170/2012 ON THE FILE OF THE XXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR EJECTMENT AND VACANT POSSESSION.

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THIS R.F.A, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The defendant in O.S No.4170/2012 on the file of the learned XXX Additional City Civil and Sessions Judge, Bengaluru city (hereinafter referred to as 'trial Court' for brevity), is before this Court impugning the judgment and decree dated 06.09.2017 decreeing the suit of the plaintiffs holding that they are entitled for decree of ejectment of the defendant and for the vacant possession of the suit schedule property and directed the defendant to vacate and handover the possession of the suit schedule property in favour of the plaintiffs within two months from the date of judgment and decree and also with a direction to hold enquiry regarding mesne profits.

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For the sake of convenience, the parties are referred

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to as per their rank and status before the Trial Court.

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RFA No. 1830 of 2017

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Brief facts of the case are that, plaintiff Nos.1 to 3 have filed the suit O.S No.4170/2012 before the trial Court against the defendant for his ejectment from suit schedule property with a direction to quit and hand over the possession of the property measuring 390 sq.ft situated on the 2^nd floor of the residential premises bearing No.1114, 10^th main, 5^th cross, Prakashnagar, Bengaluru, with the boundaries mentioned therein.

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It is contended by the plaintiffs that suit schedule property is a residential house consisting of ground, I and II floor, totally measuring 1,200 sq.ft. having super built up area of 2,500 sq.ft. described in the schedule, which was originally purchased by Sri. S. Sethuram Iyer, father of the plaintiffs in the year 1959. The said site which was a revenue site was reconveyed in the favour of one Siddaramaiah by the BDA in the year 1971. Sri. Sethuram Iyer died 25.04.1975 leaving behind him, his wife Smt. V.G.Parvathi Ammal and six sons who have jointly inherited the property. The possession certificate was issued by BDA in favour of Smt. V.G.Parvathi Ammal on 26.10.1977 and subsequently, executed the absolute

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RFA No. 1830 of 2017

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sale deed on 01.02.1995 in her favour and khata was mutated in her name.

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It is contended that the ground floor of the building was constructed during 1979 by the joint contributions of first, third and fourth sons of Sethuram Iyer and Smt. V.G.Parvathi Ammal. The first and second floor was built during 1989 with the joint contributions of all the sons except the 5^th son who was not having any avocation and also by borrowal of the fund from the Bank. The second son S. Prithvipathi left the house during 1978 and was living separately.

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It is contended that the suit schedule property was mortgaged in favour of Sir M. Vishveswaraya Co-operative Bank, by Smt. V.G.Parvathi Ammal being the principal borrower along with her sons except S.Lakshman who had no source of income at that time and Smt.Vijaya w/o S. Muralikrishnan, i.e., the wife of 6^th son as co-borrowers/guarantors to borrow the loan of Rs.3,50,000/-. Another loan of Rs.3,00,000/- was also borrowed from the lender. Thus in all Rs.6,50,000/- was borrowed for settling the liabilities incurred by S.Lakshman, S.Muralikrishnan i.e., 5^th and 6^th sons. The said outstanding

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RFA No. 1830 of 2017

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was remained uncleared. In the meantime, S. Muralikrishnan demanded his share in the suit schedule property. Therefore, the memo of understanding was entered into on 18.03.2002 which was followed by a family arrangement/settlement wherein the defendant agreed to release his share of suit schedule property in lieu of his share of the loan payable to Bank/lenders and Prithvipati agreed to release his share of the property for a nominal consideration in favour of the plaintiffs. Accordingly, release/relinquishment deed dated 19.03.2002 was came to be executed by Smt. V.G.Parvathi Ammal, Prithvipathi and by Lakshman i.e., defendant, relinquishing their right over the schedule property. Therefore, the plaintiff Nos.1 to 3 have become absolute owners in possession and enjoyment of the suit schedule property and they were paying all the dues to make the schedule property free from encumbrance.

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It is contended that, the plaintiffs have allowed the defendant who is their brother to stay in a portion of 2^nd floor of the building of the suit schedule premises without any rent, since he was not having any means for his livelihood. Gradually, the defendant started creating nuisance and picking

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RFA No. 1830 of 2017

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up quarrel with the plaintiffs and their family members. The plaintiffs wanted vacant possession of the schedule property and accordingly, demanded the defendant to vacate and hand over the schedule property while the defendant refused to vacate, the plaintiffs issued the legal notice on 05.07.2011 demanding the defendant to vacate and hand over the possession of the premises. The defendant has neither replied nor complied with the demands made in the legal notice.

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It is contended that the plaintiffs wanted to develop the property by reconstructing the same for better utilization. The valuation of the property as on the date of the filing of the suit was Rs.2,34,000/-. Hence, the plaintiffs filed the suit for ejectment of the defendant with damages of Rs.500/- per day from the date of suit till handing over the possession of the property.

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The defendant has appeared before the trial Court and filed his written statement denying the contentions taken by the plaintiffs. It is admitted that the suit schedule property consists of ground, I and II floor in all measuring 1,200 sq.ft having super built up area of 2,500 sq.ft. It is also admitted

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RFA No. 1830 of 2017

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that the said property was originally purchased by the father of the plaintiffs and defendant by name Sethuram Iyer in the year 1959 and the same was reconveyed by his favour by BDA in 1971. It is also admitted that Sethuram Iyer died in 1975 leaving behind his wife and six sons who have jointly inherited the property. The defendant admitted that the BDA had issued the possession certificate in favour of Smt. V.G.Parvathi Ammal and executed absolute sale deed dated 01.02.1995 and the khatha stands in her name. The defendant denied the contention of the plaintiffs that the building was constructed as stated by the plaintiffs. It is admitted that the property was mortgaged in favour of Sir M Vishweshwaraiah Co-operative Bank, but denied the other contentions taken by the plaintiffs.

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It is contended by the defendant that the schedule property totally measures 1,200 sq.ft which was acquired by his father Sethuram Iyer from the BDA and after his death his wife Smt. V.G.Parvathi Ammal and six sons inherited the same. Accordingly, they were joined together and borrowed loan of Rs.3,50,000/- from Sri. M.Vishveshwaraiah Cooperative Bank in the name of Smt. V.G.Parvathi Ammal. The said loan was acquired by all the family members.

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RFA No. 1830 of 2017

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It is contended that the defendant and his mother were residing in a portion of the 2^nd floor. The plaintiffs have neglected to maintain their mother. During 2002, the members of the family decided to allot the entire 2^nd floor in favour of the defendant and accordingly, the defendant relinquished his right over the remaining extent of the property in favour of the plaintiffs and his mother Smt. V.G.Parvathi Ammal. The plaintiffs have taken the signatures of the defendant on certain documents and also forced to execute the document style as memorandum of understanding and relinquishment deed. The defendant was under the impression that he was given a share in the schedule property. Later the mother of the defendant executed the sale deed dated 15.07.2011 in respect of her 1/4^th share in the property. After the death of Smt. V.G.Parvathi Ammal the defendant gifted the said 1/4^th undivided share in favour of his wife Smt.Anitha . Therefore, Smt.Anitha is the absolute owner in possession of 1/4^th undivided share in the property. She is the necessary party to the proceedings.

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RFA No. 1830 of 2017

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It is contended that the defendant was shocked to know the contents of the plaint. It is stated that the plaintiffs have manipulated the memorandum of understanding dated 18.03.2002 and created the release deed dated 19.03.2002. Those documents were never acted upon. It is stated that the defendant is a B.Com graduate and was working in a private business. He was forced to close down the business because of heavy expenditure thereafter, he joined the private organization. Therefore, it is clear that the defendant was never under financial stress at any point of time. The fact that the plaintiffs and other members of the family used to borrow money from the defendant to meet their family necessity. The defendant had helped the plaintiffs by providing financial assistance. The defendant had no necessity to relinquish his right over the schedule property. The plaintiffs have not obtained any right under the relinquishment deed and they are not entitled to evict the defendant. Therefore, the defendant prayed for dismissal of the suit.

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On the basis of these pleadings, the trial Court framed the following issues for consideration:

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RFA No. 1830 of 2017

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Issues

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”1. Whether plaintiffs prove that the defendant is in permissive possession of the suit property under them?

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2. Whether the suit is bad for non-joinder

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of necessary party namely Smt. R. Anitha?

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3. Whether the suit relief is not property

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valued?

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4. Whether the plaintiffs are entitled for suit relief?

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5. What order or Relief the plaintiffs are

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entitled to?"

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Plaintiff No.1 examined himself as PW.1 and got marked Exs.P.1 to 13 in support of his contention. The defendant examined himself as DW.1 and got examined DWs.2 and 3 and got marked Exs.D1 and 2 in support of their contention. The trial Court after taking into consideration all these materials on record, answered issues No.1 and 4 in the affirmative, issue Nos.2 and 3 in the negative and decreed the suit of the plaintiffs with costs directing the defendant to vacate and hand over the possession of suit schedule property in favour of the plaintiffs within two months.

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RFA No. 1830 of 2017

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Being aggrieved by the same, the defendant has preferred this appeal.

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Heard Sri. K.P.Jayasimha, learned counsel for the appellant and Sri. V.F.Kumbar, learned counsel for respondent Nos.1 to 3 and Perused the materials on record including the Trial Court records.

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Learned counsel for the appellant contended that the plaintiffs and defendant are brothers. The schedule property is admittedly a joint family property . There was no necessity for the defendant to relinquish his right over the property, however the plaintiffs concocted the document as relinquishment deed dated 19.03.2002. The mother of the defendant executed the registered Will as per Ex.D.1 and the defendant executed the gift deed in favour of his wife as per Ex.D.2. Under such circumstances, it is the wife of the defendant, who is the absolute owner of the schedule property and the plaintiffs are not having any share. Learned counsel for the appellant conceded that there is a registered relinquishment deed dated 19.03.2002, produced as per Ex.P.12. Looking at the relationship between the parties and on humanitarian ground,

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RFA No. 1830 of 2017

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he prays for allowing the appeal and to dismiss the suit of the plaintiffs.

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Per contra, learned counsel for the respondent opposing the appeal submitted that the contention of the plaintiffs is supported by registered documents. Ex.P.12 is admitted document which is registered release deed executed by the defendant and others in favour of the plaintiffs. The mother of the plaintiffs and defendant have relinquished right over the property under Ex.P.12. Under such circumstances, the mother of the plaintiffs had no subsisting right to execute the Will as contended by the defendant. Similarly, the defendant who had relinquished his right over the schedule property was also not having subsisting right to bequeath the same in favour of his wife. Under these circumstances, Ex.D1 and 2 are sham documents relied on by the defendant. No right is created under these documents in view of Ex.P.12. The trial Court considered the oral and documentary evidence in proper perspective and came to the right conclusion there are no reasons to interfere with the impugned judgment and decree. Accordingly, prays for dismissal of the appeal.

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RFA No. 1830 of 2017

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In view of the rival submissions made by the learned counsel for both the parties, the point that would arise for my consideration is:

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"Whether the impugned judgment and decree passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"

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My answer to the above point is in the 'Negative' for the

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following reasons:

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REASONS

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The contentions of the plaintiffs regarding acquiring of the schedule property by their father and execution of the sale deed in favour of their mother by the BDA are all admitted. It is the specific contention of the plaintiffs that under Ex.P.12, the defendant and their mother Smt. V.G.Parvathi Ammal relinquished their right over the schedule property in favour of the plaintiff Nos.1 to 3 and thus, the plaintiffs have become the absolute owners of the same. The defendant while filing the written statement admitted the relinquishment deed produced as per Ex.P.12, but contended that his signatures were obtained by the plaintiffs on the document and that he was under the impression that his share is allotted in the schedule

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RFA No. 1830 of 2017

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property. PW.1 was cross examined at length, by the learned counsel for the defendant , but nothing has been elicited by him in support of the contention taken by the defendant. Defendant is also examined in the case. From the evidence of the defendant, also it cannot be held that Ex.P.12 is a concocted document created only to defraud the defendant or his mother. The recitals in Ex.P.12 disclose that it is a release deed executed by the defendant, his mother Late Smt. V.G.Parvathi Ammal, Murali Krishna and Prithvipathi, who are the brothers of the plaintiffs and defendant.

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The defendant has never challenged Ex.P.12. Till date he has not taken any step to annul the same. Under such circumstances, he can not avoid Ex.P.12 to contend that he is having a share over the schedule property when plaintiffs are successful in proving Ex.P.12. The contention of the defendant that his mother Smt. V.G.Parvathi Ammal executed the registered Will as per Ex.D.1 and that he bequeathed his share over the schedule property in favour of his wife Smt. Anitha, as per gift deed Ex.D.2 is of no consequence. After execution of the release deed, Smt. V.G.Parvathi Ammal and the defendant would not have any subsisting right over the schedule property

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15 - RFA No. 1830 of 2017

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to make a bequeath in favour of others. When the plaintiffs are proved to be the owners of the schedule property, they are entitled to seek eviction of the defendant. Under these circumstances, they are entitled for a decree directing the defendant to vacate and hand over the possession of the schedule property. I have gone through the impugned judgment and decree passed by the trial Court , it has taken into consideration the oral and documentary evidence and arrived at a right conclusion. I do not find any reason to interfere with the same. Hence, I answer the above point in the Negative. In the result, the appeal is liable to be dismissed.

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Hence, I proceed to pass the following:

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ORDER

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(i) The appeal is dismissed with costs.

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(ii) The judgment and decree dated 06.09.2017 passed in O.S No.4170/2012 on the file of the learned XXX Additional City Civil and Sessions Judge, Bengaluru city, is hereby confirmed.

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RFA No. 1830 of 2017

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Registry to send back the Trial Court records along with

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copy of this judgment.

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In view of the dismissal of the main appeal, pending I.A

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stands disposed of.

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Sd/JUDGE

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SKS

Mr.S.Lakshmanan v. Mr.S.Balasubramanyam

Case brief

What is this about?

What did the court decide?

Mr.S.Lakshmanan v. Mr.S.Balasubramanyam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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