Regular Second Appeal dismissing appeal against First Appellate Court decree. Court held First Appellate Court did not commit any error in re-appreciating evidence and concluding property was joint family property purchased with father's funds, thus dismissing the appeal against the share decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.315 OF 2017 (PAR)
BETWEEN:
MUKESH KUMAR AGARWAL S/O S.C. GUPTA AGED ABOUT 54 YEARS RESIDING AWT NO.1 ALLALASANDRA GATE BELLARY ROAD, YELAHANKA BENGALURU 560 065.
…APPELLANT
(BY SRI R B SADASHIVAPPA, ADVOCATE FOR SMT.RAJESHWARI M, ADVOCATE)
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
AND:
[SINCE DECEASED, THE APPELLANT AND RESPONDENT Nos.2 TO 4 BEING CHILDREN OF RESPONDENT No.1, THEY ARE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT
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No.1 AND THEY ARE ALREADY ON RECORD] [AMENDMENT CARRIED OUT AS PER COURT ORDER DATED 31.07.2018]
…RESPONDENTS
(BY SRI H N SHASHIDHARA, SR. ADVOCATE FOR SRI H S SUHAS, ADVOCATE FOR R2; SRI K N NITHISH, ADVOCATE FOR SRI K V NARASIMHAN, ADVOCATE FOR R2 & R4)
THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.02.2016 PASSED IN R.A.NO.34/2015 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND ETC.
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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This appeal is filed challenging the judgment and decree dated 25.02.2016 passed in R.A. No.34/2015 by the Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru.
learned counsel appearing for the respective parties.
before the Trial Court that the plaintiff/respondent No.1 that defendant Nos.1 to 3 are the sons and defendant No.4 is the daughter of the plaintiff and there is no dispute with regard to the relationship between the parties. It is contended in the plaint that in the year 1983, the plaintiff intend to purchase an agricultural property for his joint family. Since there was a bar to purchase the same under the Land Reforms Act, the plaintiff purchased the same in the name of defendant No.1 who is none other than the
eldest son of the plaintiff who construed to be the kartha of the family immediately after the plaintiff. The plaintiff further contended that defendant No.1 had attained majority at the time of the purchase of the suit schedule property and defendant Nos.2 to 4 are the minors by that time. It is contended that he had purchased the suit schedule property from his steel business income by paying entire sale consideration. The plaintiff and defendants are the joint owners and in joint possession of the suit schedule property and enjoying the same jointly. Hence, entitled for 1/5th share in the suit schedule property. It is also his contention that there was some misunderstanding in the family and hence, defendant No.1 had left Bangalore and was settled in Munbai since 1989. Later, in and around 2003, he had returned to Bangalore and was not having cordial relationship with the plaintiff and the other defendants. Though, initially, defendant No.1 agreed to partition the suit schedule property, but he did not heed to the request of the plaintiff and other defendants. Though defendant No.1 had no absolute right
to sell, mortgage or part with the possession over the suit schedule property, trying to alienate the property without the consent of the plaintiff. Hence, the plaintiff is entitled for the relief of partition in the suit schedule property.
the suit of the plaintiff in coming to the conclusion that defendant No.1 has proved that the suit schedule property is the self-acquired property and disbelieved the case of the plaintiff. Hence, an appeal was filed before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal and also on re-appreciation of both oral and documentary evidence placed on record comes to the conclusion that the plaintiff has proved that the suit schedule properties are the joint family properties and the plaintiff is entitled to 1/5th share in the suit schedule properties and the plaintiff is also entitled for decree for permanent injunction and set aside the order of the Trial Court in coming to the conclusion that the property is purchased by the plaintiff for the family and the property is not the self-acquired property of defendant No.1 as contended by him and granted 1/5th share in favour of the plaintiff and restrained defendant No.1 from alienating the suit schedule property in any manner. Being aggrieved by the judgment and decree of
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the First Appellate Court, the present appeal is filed before this Court.
the said ground is also urged in this appeal in ground No.3. It is contended that the First Appellate Court committed an error in considering oral evidence instead of very documentary evidence of sale deed which clearly discloses that the properties are purchased in the name of the appellant and granted 1/5th share to the plaintiff and the very approach of First Appellate Court is erroneous. The counsel also would vehemently contend that the Trial Judge in paragraph 14 of the judgment held that initially, the burden is on the plaintiff to establish that the suit schedule properties are the joint family properties and
only the plaintiff has to discharge the initial burden, then only the burden shifts on defendant No.1. The proposition of law is correct but the manner in which the evidence is appreciated is not correct. The counsel also would vehemently contend that the First Appellate Court erred in coming to the conclusion that appellant is aged about 20
years at the time of purchase of the suit schedule properties and presumed that how at that age, he could mobilize a sum of Rs.93,000/- and comes to the conclusion that the father of the appellant i.e., the plaintiff provided the funds to the appellant to purchase the property. The First Appellate Court given more importance to the oral evidence and not on the documentary evidence wherein the documentary evidence clearly discloses that the property was purchased by defendant No.1. The First Appellate Court grossly erred in re-appreciation of the evidence available on record and the very approach of the First Appellate Court is erroneous and the perverse finding was given that the Trial Court has not considered the material on record. The counsel also read the judgment of
the Trial Court and contend that the Trial Court in detail discussed the material on record and in paragraph 15 it is held that the documents at Ex.P1 to P3 do not disclose anything about purchase of the property by defendant No.1 out of the income of joint family income on behalf of the joint family and also in detail discussed the document which have been produced by the plaintiff in paragraph 15 for having paid the sale consideration and also in paragraph 16 taken note of the documents which have been produced by the plaintiff and comes to the conclusion that the said documents will not comes to the aid of the plaintiff. But the First Appellate Court committed an error in reversing the said finding hence, the very approach of the First Appellate Court is erroneous and fails to take note that no material is placed before the Trial Court for having given the fund in favour of defendant No.1 while purchasing the property and the said fact has been considered by the Trial Court and hence, the approach of the First Appellate Court is erroneous wherein the First Appellate Court assumed the things and decreed the suit.
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The observation made by the First Appellate Court with regard to the benami transactions is also erroneous wherein in paragraph 12, the First Appellate Court relied upon the judgment reported in (1996) 7 SCC 55 and committed an error and said judgment is not applicable to the facts of the case on hand.
the Apex Court reported in (2004) 7 SCC 233 in the case
of VALLIAMMAL (D) BY LRS vs SUBRAMANIAM AND
OTHERS wherein the Apex Court held that presumption has to ownership of property purchased, onus to prove the same as benami whom lies law presumes the purchaser to be the owner of the property purchased onus to prove that he is not the real owner but a benami holder lies on the person who pleads the same and also tests to be adopted to ascertain the same and evidence held that the plaintiff failed to prove that purchase money had been provided by him and to show any justification for purchasing the property benami in the name of wife. The counsel referring
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this judgment would vehemently contend that in the case on hand the son purchased the property and nothing is placed on record and also onus on him to prove the same.
the Apex Court reported in (1999) 4 SCC 243 in the case of PAWAN KUMAR GUPTA vs ROCHIRAM NAGDEO and
brought to notice of this Court to the principle held in the judgment that onus to prove the nature of the transaction, on whom lies on the person who alleges the recitals in the sale deed to be untrue and not on the person who was mentioned in the sale deed as the purchaser for consideration. The counsel also brought to notice of this Court to the principles laid down in the judgment with regard to the purchasing of the property with money provided by one’s father, would not render the transaction a benami one, words “paid or provided” interpretation of have to be read disjunctively, each tagged with the word “consideration”. The word provided in Section 2(a) of the Benami Transactions (Prohibition) Act cannot be construed
in relation to the source or sources from which the real transferee made up the funds for buying the sale consideration. The words “paid or provided” are disjunctively employed in the clause and each has to be tagged with the word “consideration”. The counsel referring this judgment would vehemently contend that the First Appellate Court committed an error in coming to the other conclusion that the property belongs to the joint family and the purchase is made by the father for the joint family.
Commissioner seeking the permission to purchase the property wherein it is stated that the applicant is unemployed and he has no source of income. The applicant’s father has given him about Rs.45,000/- and he has been deriving about Rs.450/- by way of interest per mensem. The applicant and his father have differences of opinion and the applicant has therefore decided to become a cultivator and intends to purchase the land and sought for the permission. The counsel also brought to notice of this Court to the document at Ex.D17 wherein the Tahsildar has submitted a report consequent upon the application given by the applicant to the Assistant Commissioner wherein also stated that applicant says that his monthly income is Rs.450/- and this works out to Rs.5,400/- per year. He further says that his father has given him Rs.45,000/- and he is silent as to whether he has been released his rights over his father’s property. Based on the documents at Ex.D16 and D17 permission was accorded to purchase the property.
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to the document at Ex.D1 that is the sale deed wherein also a reference was made that defendant No.1 obtained the permission from the concerned department mentioning the LRF number to purchase the property and these documentary evidence are not considered by the Trial Court while discussing the same. The First Appellate Court even in the absence of appellant herein in detail discussed the material placed before the Court. The counsel brought to notice of this Court to the document at Ex.P28 i.e., the returns submitted by the plaintiff i.e., the father of defendant No.1 wherein he has categorically stated that he had paid the amount of Rs.20,000/- to defendant No.1 and also document at Ex.P30 also shows that the plaintiff had paid the amount of Rs.40,000/- and the same is shown in the returns as balance as on 24.10.1984. The counsel referring these documents would vehemently contend that even subsequent to the purchase also the amount was given to defendant No.1 to the tune of Rs.20,000/- and Rs.40,000/-. The counsel also brought to notice of this
Court to the document at Ex.D9 wherein defendant No.1 himself has declared his income as Rs.11,945/- from M K Steel Corporation and filed the returns showing his balance as on 04.11.1983 and sister also made the payment of Rs.20,000/- to him. When defendant No.1 claims that he was having the business which he started in the year 1981 itself and in the year 1983 he declared his income only Rs.11,945/- i.e., M.K. Steel Corporation, how he had mobilised the funds to the tune of Rs.93,000/- for having purchased the property and nothing is stated and his own document at Ex.D9 which shows his income as Rs.11,945/- that too on 04.11.1983 and the Trial Court has not considered this document also and passed a perverse order and the same has been set aside by the First Appellate Court on re-appreciation of both oral and documentary evidence placed on record.
respondent Nos.3 and 4 in his arguments he would vehemently contend that the address mentioned in the
plaint, in the regular appeal and also in the present appeal is one and the same but notice issued by the Court as well as RPAD is not served as contended but on perusal of RPAD it discloses that the same was returned with an endorsement as ‘refused’. The counsel also would vehemently contend that sale deeds clearly disclose that the property was purchased on 20.07.1983, 19.09.1983 and 20.10.1983 and total sale consideration was Rs.93,000/-. Though the counsel contend that defendant No.1 started the business in the year 1981, he has not explained the source for having purchased the property and the counsel would vehemently contend that Ex.D16 to D18 are not considered by the Trial Court and he also adopts the arguments of the counsel for respondent No.2.
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notice and hence, by extending the interim order called the Trial Court records and thereafter heard the arguments and posted the matter for judgment.
son of plaintiff and the Court has to look into the documents of sale deeds which stands in the name of defendant No.1 and Trial Court comes to the conclusion that nowhere it is mentioned that sale consideration is paid under Ex.P1 to P3 sale deeds out of the income derived from steel business of father. The Court cannot expect the fact that who had paid the money i.e., whether it is the son or the father and the Court only to see that whether sale consideration has been paid to the vendor of the property but the Trial Court failed to take note of the document at Ex.D9 wherein his income is noted even after subsequent of purchase of property as Rs.11,945/- and nothing is discloses for having paid the amount of the sale consideration in respect of Ex.P1 to P3 by him and the Trial Court while considering the document of the plaintiff comes to the conclusion that nothing is stated in the returns filed by plaintiff that he had paid the money. The Trial Court also fails to take note of the fact that documents at Ex.D16 to D18 wherein also defendant No.1 himself has declared before the Assistant Commissioner
that in the undisputed point of time while seeking the permission to purchase the property under Ex.P1 to P3 he is unemployed and he is not getting any income and his income is only Rs.450/- as interest of the amount given by the father and also he categorically stated in his application that he has received an amount of Rs.45,000/from the father and the same is also for the purchase of the property and he himself has declared that he has received the amount from the father and documents at Ex.P28 and P30 clearly disclose that father had paid the money and same was declared in the income tax returns in the years 1984 and 1985 and all these documents are not considered by the Trial Court and only relied upon the document of ‘P’ series at Ex.P1 to P3.
before the Court and he was not cross-examined and hence, taken as no cross. The Trial Court ought to have been considered the documents of both the plaintiff as well as the defendants and nothing is discussed with regard to the documents of Ex.D16 to D18 which have been produced before the Trial Court through the witness who has been examined as DW4 and the same was considered by the First Appellate Court on re-appreciation. The First Appellate Court in detail discussed the very pleading of the plaintiff where he has categorically pleaded that he had purchased the property in the name of defendant No.1 and who is the only son who attained the age of majority at the time of purchase of the property in the year 1983. It is also important to note that defendant No.1 was aged about 20 years at the time of purchasing the property and sale consideration is to the tune of Rs.93,000/- and when his own document at Ex.D9 discloses that his income is only Rs.11,945/- and document also discloses that he has received the money from his sister also and the same is also evident from his own document at Ex.D9. When such
material is available before the Trial Court, the Trial Court not considered those documents and only comes to the conclusion that Ex.P1 to P38 documents will not comes to the aid of the plaintiff in order to come to the conclusion that the amount was invested by the father to purchase the property. The First Appellate Court also on reappreciation of both oral and documentary evidence placed on record comes to the conclusion that he was aged about 20 years but he claims that he was doing business from 1976 at that time he was aged about 13 years and also witnesses DW2 and DW3 who have withstood the cross-examination and PW2 and PW3 who have given the evidence on behalf of plaintiff and DW3 is the attesting witness to the said document and all of them have deposed that plaintiff only invested the money for purchasing of the property.
categorically admitted in the cross-examination that his father was doing steel business but he did not know the same and once he admits that his father was doing steel business and on the other hand, he says that he did not know the same and he also admits that his family was doing steel business and though he claims that property purchased by him is reflected in his tax returns and he has produced the said tax returns but nothing is found in the returns for having purchased the same out of his income and also categorically admits that it might be true that his brother and sister was minor when the property was purchased and he was only the major at the time of purchasing the property and all these admissions given by DW1 and the same was not considered by the Trial Court and the same has been considered by the First Appellate Court. First Appellate Court having re-considered both oral and documentary evidence placed on record summed up in paragraph 41 that the plaintiff has proved his case that he has invested the money for the family and defendant No.1 was aged about 20 years at the time of purchase and
application at Ex.D16 given by defendant No.1 himself before the Assistant Commissioner clinches the issue and goes to show that he had no income of his own. Having considered both oral and documentary evidence placed on record and though the counsel for appellant contend that documentary evidence prevails considering Ex.P1 to P3 and at the same time the other documents at Ex.D16 to D18, P28, P30, D9 also clinches the issue involved between the parties that father only invested the money that too when the son was staying along with him in the year 1983.
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Court rightly considered both oral and documentary evidence placed on record and the finding of First Appellate Court cannot be a perverse finding but the Trial Court only considered the document at Ex.P1 to P14 and comes to the erroneous conclusion that the plaintiff has made out the case and the First Appellate Court rightly applied the judicious mind and also given anxious consideration to both oral and documentary evidence placed on record and also considered the question of fact and law and rightly reversed the finding of the Trial Court and granted the relief of 1/5th share in favour of the plaintiff as sought in the plaint. Hence, I do not find any ground to admit the appeal and to frame substantial questions of law.
father had executed a Will prior to his death and the same is subject to proof if any testamentary document executed by the plaintiff in respect of his share. The parties can claim the same before the FDP Court with regard to the enlargment of the share is concerned.
ORDER
The second appeal is dismissed.
Sd/JUDGE
SN
3 issues framed by the court
Whether the First Appellate Court correctly re-appreciated evidence to conclude the property was joint family property purchased with father's funds despite the son being the registered purchaser.
Whether the appellant was properly served notice given the returned endorsement on the court record.
Whether the plaint has mature grounds to decree 1/5th share of the suit property in favour of the plaintiff.
Colour shows how this judgement treated each authority
(1996) 7 SCC 55Referred¶52
Valliammal (D) BY LRS vs Subramaniam And OthersReferred¶55
(2004) 7 SCC 233 · Who else cites this
Pawan Kumar Gupta vs Rochiram NagdeoReferred¶62
(1999) 4 SCC 243 · Who else cites this
1 provisions across 1 enactments
Mukesh Kumar Agarwal
Suresh Chandra Gupta
Ravi Agarwal
Anil Agarwal
Usha Agarwal
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
