Partly allowed

Sri Aristatal M v. Mr Edison Plato

Karnataka HC19 Mar 2024RFA/717/2011

Case brief

AI extract

What is this about?

Plaintiff appealed dismissal of his suit for possession of a residential house standing in his name. Holding that admissions and documentary evidence showed the father paid the sale consideration and contributed to construction, the High Court held the property joint, moulded relief, and granted a preliminary decree for half share each to the brothers.

What did the court decide?

Judgment and decree modified by preliminary decree granting half share each to plaintiff and defendant No.1; interim application for additional documents allowed.

Sri Aristatal M Vs Mr Edison Plato — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:11242 RFA No. 717 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 717 OF 2011 (POS)

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BETWEEN:

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SRI ARISTATAL M, S/O LATE A MUNISWAMY, AGED ABOUT 58 YEARS, R/AT.NO.1216, 4^TH CROSS, HAL 3^RD STAGE, BANGALORE - 560 075.

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…APPELLANT

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(BY SRI UDAYA HOLLA, SR.ADVOCATE FOR SRI CHANDRASHEKARA S AND VIVEK HOLLA, ADVOCATES) AND:

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Digitally signed by BELUR RANGADHAMA NANDINI Location: HIGH COURT OF KARNATAKA

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MR EDISON PLATO, S/O.LATE M MUNISWAMY, AGED ABOUT 59 YEARS, R/AT.NO.1216, 4^TH CROSS, HAL 3^RD STAGE, BANGALORE - 560 075.

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…RESPONDENT (BY SRI C PATTABIRAMAN, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96, R/W, O-41, OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.04.2011 PASSED IN O.S.25631/2007 ON THE FILE OF THE XXVI-ADDL. CITY CIVIL JUDGE, MAYO HALL. BANGALORE, DISMISSING THE SUIT FOR POSSESSION.

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THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The plaintiff is in appeal invoking Section 96 of

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the Code of Civil Procedure, challenging the dismissal of suit for possession and for consequential injunction.

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The suit property is a residential house.

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Defendant No.1 is the brother of plaintiff and defendant No.2 is said to be the tenant of the portion of the premises. The plaintiff claimed to be the absolute owner of the suit property on the premise that the suit property was allotted to him on 18.12.1975. Later on 06.04.1977, the lease cum sale agreement was executed by the Bengaluru Development Authority in favour of the plaintiff.

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The plaintiff claims to have constructed the building by raising loan by entering into an agreement with the builder. The plaintiff has pleaded that as he was working as a Government employee, as an official quarters was allotted to him, he allowed his brotherdefendant No.1 who did not have his accommodation, to occupy a portion of the suit property on temporary basis.

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Plaintiff further claims that on 15.12.1988, the regular sale deed was executed in his favour and his request to defendant No.1 to deliver the possession was not acceded. Hence the suit is filed.

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Defendant No.1 contested the suit. Defendant

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No.2/tenant vacated the premises during the pendency of the suit.

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Defendant No.1 took a stand that the property belonged to plaintiff’s and his father A. Muniswamy. The sale transaction is in the plaintiff's name and the father of the plaintiff and defendant No.1 paid for purchase as well as construction. Since the father of the plaintiff and 1^st defendant was a Government employee nearing the age of superannuation, the property was purchased in the name of the plaintiff as it would be easy to avail loan facility.

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The Trial Court held that the plaintiff is not the absolute owner of the suit schedule property. The Trial Court has held that the property belonged to the father of the plaintiff and 1^st defendant and dismissed the suit.

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NC: 2024:KHC:11242 RFA No. 717 of 2011

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Learned Senior counsel Sri Udaya Holla for the

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plaintiff/appellant would contend that there is presumption that the plaintiff is the absolute owner as all the property records including title deeds are in the name of the plaintiff. Heavy burden cast on the defendant No.1 to prove otherwise is not established. No acceptable documents are produced by first defendant to hold that property belonged to plaintiff’s father.

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It is also urged that Ex.D.1 relied on by the Trial Court which is said to be a declaration made by the plaintiff to his father admitting that the suit property belongs to his father to dismiss the suit. Learned Senior counsel urged that the signature on Ex.D.1 is not the signature of the plaintiff and Dw1 admitted it in the cross examination, the Trial Court wrongly relied on the said document to dismiss the suit.

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It is also urged by the learned Senior counsel that

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the alleged diaries maintained by the plaintiff's father at Ex.D.37 and Ex.D.37a - do not establish the plea that the

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plaintiff’s father owned the property. He also urged that the recital in the lease cum sale agreement and the sale deed would establish that the plaintiff alone is the owner.

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It is also his further contention that the 1^st defendant has not produced any materials to show that the 1^st defendant or his father have contributed to purchase the property in the name of the plaintiff. It is his further submission that the documents produced by the plaintiff particularly the additional documents produced before this Court under Order XLI Rule 27 of the Code of Civil Procedure would reveal that the plaintiff applied for permission to construct the building, applied for loan and mortgaged the property and had entered into an agreement with builder and carpenter. These documents would establish the fact that the plaintiff is the real owner of the property and the transaction was not a benami transaction as contended by defendant No.1.

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1. Learned counsel for respondent No.1 defendant No.1 referring to the admissions of the plaintiff

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in the cross-examination and also to the documents produced on behalf of the defendant No.1 would urge that the defendant No.1 has established that the suit property was purchased primarily by the father of the plaintiff and the 1^st defendant has also made contribution while constructing the building.

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This Court has considered the contentions

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raised at the Bar and perused the records.

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The point for consideration is; whether the Trial

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Court is justified in holding that the plaintiff is not the absolute owner of the suit schedule property and that the defendant No.1 is having a share in the suit schedule property?

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There is no dispute that the lease cum sale agreement and registered sale deed stand in the name of the plaintiff. There is a presumption that the property belongs to the plaintiff. However, the said presumption is rebuttable. The question is, "whether first defendant has rebutted the presumption?"

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At this juncture, it is necessary to refer to the

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cross-examination of PW1. The relevant portion of the cross-examination reads as under:

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"At the time of purchase my father invested Rs.14,540/- but it is not my amount".

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16. The aforementioned admission is categorical and unambiguous.

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It is also relevant to note the admission relating

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to contribution made in respect of construction of the building in the suit property. The said evidence reads as under:

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"I spent Rs.3-4 lakhs for construction of ground floor. I raised Rs.40,000/- loan from office. I also took loan from others. My father also contributed some amount for construction. My father contributed about 1 lakh rupees."

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18. The plaintiff claims to have purchased the property from Bangalore Development Authority under the registered lease cum sale agreement dated 06.04.1977. However as noticed, plaintiff has admitted

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that entire consideration amount is paid by his father. There is also an admission that plaintiff’s father also contributed for construction of the building.

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19. Though, the plaintiff states that he has borrowed loan from his employer and also from other sources and he has put-up a construction, he could not reveal the names of other lenders.

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20. In the aforementioned background, the Court has to consider whether any other documents or the evidence that would corroborate the stand of the defendant No.1.

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The defendant has also taken a stand that apart from their father, the defendant no.1 has also contributed for the purchase of the property and the construction of the residential house. The defendant has relied upon Ex.D1-the declaration said to have been executed by the plaintiff stating that the property belongs to the father of the plaintiff and the first defendant. The signature on the said document is seriously disputed by the plaintiff.

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This Court has perused the signature on Ex.P6 which is a registered lease cum sale agreement in the name of plaintiff. The Court has also considered the disputed signature at Ex.D1(b) on the disputed declaration said to have been made by the plaintiff. On perusal of the aforementioned two signatures, it is apparent that the signatures differ. However, what is to be noticed is the Ex.P6 is the registered lease cum sale agreement of the year 1977 and Ex.D1 is said to be of the year 1988. Thus, there is a 11 years’ gap between the two documents. The registered sale deed of 1988 in the name of plaintiff is also produced and the said documents also bear the signatures of the plaintiff. It is always safe to compare the signatures from the documents which are executed around the same time with the disputed signature. Since Ex.D1 and Ex.P1 are of same year, this Court is of the view that the signatures on these two documents are to be compared. On comparison of the signatures from these two documents, it can be noticed that there is quite a

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resemblance on the disputed signature at Ex.D1(b) and the signatures on Ex.P1.

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As already noticed that the plaintiff’s admission in the cross-examination referred to above are unambiguous. Thus, it is more probable that the plaintiff must have signed Ex.D.1 making a declaration that the suit property belonged to his father.

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As already noticed, the plaintiff has admitted that his father has paid around Rs.1.00 lakh for construction on the building in the suit property. It is not the case of the plaintiff that he has repaid the said amount to his father.

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It is relevant to note that the 1^st defendant apart from producing Ex.D1, also produced letters said to have been addressed by the father to the family members. Those letters are marked at Ex.D2 to 6, 39 and 40 are sent to the address where the defendant no.1 was residing i.e. the residential house located in the suit property. The

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contents of the said letters would reveal that the letters are addressed to all the family members in general. In those letters, references have been made relating to the construction and the payments made by the plaintiff's father. It is also relevant to note that the defendant No.1 has also produced two diaries said to have been maintained by the father which are marked at Exs.D37 and D38. These entries in the diaries would also reveal that the father has made payment to the son i.e., plaintiff towards the repayment of the loan borrowed by the appellant-plaintiff. It is stated that the plaintiff has raised loan of Rs.40,000/- in the year 1985. The entries in the diary which are marked at Exs.D37 and 38 would reveal that the plaintiff used to receive monthly instalments every month from his father and he used to sign for having received the said amount. These entries are also the entries made after 1984-85. Though, there is no expert’s opinion on the signatures appearing on the diaries, it is relevant to note that in the cross-examination, the plaintiff has not chosen to dispute the contents of the

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diaries as well as the signatures appearing in the said diaries. Under these circumstances, this Court is of the view that the entries in the diary seem to be credible when viewed in the light of the admission of pw1 in the crossexamination where he has stated that the father has invested the amount to purchase the property in the year 1977.

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Learned counsel for the defendant No.1 also brought to the notice of this Court that the father owned two sites and those two sites are purchased in the name of defendant No.1 and the father has requested defendant No.1 to transfer one of the sites in the name of the plaintiff and asked the plaintiff to record the name of defendant No.1 to the extent of 50% share in the suit property. The defendant No.1 has also stated in his examination-in-chief that his brother - plaintiff refused to accept one of the sites standing in the name of defendant No.1 on the premise that the said property is far away from his office. It is further stated by defendant No.1 that he sold the site and transferred Rs.3,00,000/- in the name

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of the plaintiff and he had also given the particulars relating to the transfer of the said amount through Bank. This evidence is again not disputed by the plaintiff. This is one of the circumstances which would indicate that the father was capable of owning the properties from his own funds and for some reason, the suit property was purchased in the name of the plaintiff.

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It is also brought to the notice of this Court by the learned counsel for defendant no.1 that defendant No.1 has produced the receipts for having transferred certain amounts to the account of his father. Those receipts are marked at Exs.D-10 to D-29. Out of these documents though suggestion is made stating that in two receipts, the amount mentioned are altered, it can be safely held that all the receipts are issued by the concerned Bank and the receipts bear the seal of the Bank. Though there is overwriting in two receipts on the amount mentioned, the inference coming from these documents cannot be brushed aside merely because the

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NC: 2024:KHC:11242 RFA No. 717 of 2011

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overwriting in two receipts as the altered amount in those receipts too small. There is no suggestion to that effect that the receipts do not bear the seal of the bank.

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Thus, on overall appreciation of the evidence on record and the receipts produced, this Court is of the view that amount is contributed by the plaintiff's father as well as defendant No.1.

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The inferences emerging from the letters addressed by the plaintiff's father would also lead to the conclusion that the plaintiff's father has taken an active role in construction of the building and has also paid the amount for the construction of the building.

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It is also forthcoming in the cross-examination that the plaintiff did not reside in the suit house. It has been admitted in the cross-examination that he was residing in a rented house and after the official quarters was allotted to him, he moved to the quarters and he did not stay in the suit property.

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It is also relevant to note that the handwriting of the plaintiff's father in the letters addressed by the

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plaintiff's father is not in dispute. All those letters have been sent either in inland letters or through post card. And even the letter addressed by the defendant No.1 to the father updating the progress of the construction of the suit house is also forthcoming from the record.

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It is not the case of the plaintiff that those letters are ante dated and created for the purpose of establishing the defence raised in the written statement. The seal on the postal letters are not disputed. Those seals would clearly indicate that the letters have been addressed at the undisputed point of time.

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Considering all these circumstances, this Court would attach more credibility to the evidence led by defendant No.1 including Ex.D1 the declaration by the plaintiff. Even if it is held that Ex.D1 is not proved for some reason, then also there are enough materials to prove that the property was purchased by the father or at least from the contribution made by the father of the plaintiff and first defendant.

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NC: 2024:KHC:11242 RFA No. 717 of 2011

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Learned senior counsel appearing for the

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plaintiff-appellant would rely upon the judgments of the Hon'ble Apex Court in the cases of:

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(i) Tilak Raj vs. Vidhya Devi and others reported in 2005 SCC Online J & K 11.

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(ii) D.S.Lakshmaiah and another vs. L Balasubramanyam and another reported in (2003) 10 SCC 310.

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(iii) Smt.Radhamma and others vs. H.N.Muddukrishna and others reported in 2005 SCC Online Kar 612.

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(iv) Parimal vs. Veena alias Bharthi reported in (2011) 3 SCC 545.

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(v) Rangamall vs. Kuppuswamy and another reported in (2011) 12 SCC 220.

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(vi) Thiruvengadam Pllai vs. Navaneethammal and another reported in (2008) 4 SCC 530.

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(vii) Anil Rishi vs. Gurubaksh Singh reported in (2006) 5 SCC 558.

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This Court has considered the aforementioned

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judgments. There is no dispute over the principle that the

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presumption in favour of the plaintiff relating to his title over the suit property as the property stands and title

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deeds are in his name. The burden is on defendant no.1. The question is whether defendant no.1 has discharged the burden.

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This Court has already assigned reasons as to how the rebuttable presumption in favour of plaintiff's title is rebutted by defendant No.1.

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For the reasons already discussed, this Court is of the view that the documents placed before the Court as well as the admission of the plaintiff in the crossexamination would lead to the conclusion that the defendant No.1 has rebutted the presumption and has established that the suit property is the joint property of the plaintiff and first defendant.

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The additional documents produced by the plaintiff are also considered and taken on record. These documents do not help the plaintiff to set aside the impugned judgment and decree. Since the defendant No.1 has established that his father paid entire sale consideration amount, the documents between the builder

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and the plaintiff or the carpenter and the plaintiff do not take the plaintiff too far. Since the property records stood in the name of the plaintiff it is quite possible that the agreements between the plaintiff, builder, and carpenter are also in the name of the plaintiff.

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The Trial Court has assigned valid reasons to dismiss the suit. This Court does not find any error in the judgment and decree passed by the Trial Court in holding that the plaintiff is not the exclusive owner of the suit property.

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However, it is to be noticed that though the plaintiff has filed a suit for possession claiming that he is the absolute owner of the property, for the reasons already recorded above, this Court is of the view that the property is the joint property of the plaintiff and the first defendant and their father. Now the father is no more. Thus, the plaintiff and defendant No.1 would have half share each in the suit property. This being the position, this Court is of the view that instead of driving the plaintiff to file a suit for partition, the relief is to be moulded, by

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granting a preliminary decree for half share in the suit property in favour of the plaintiff and for the remaining half share in favour of defendant No.1.

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Accordingly, the judgment and decree dated

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06.04.2011 passed in O.S.No.25631/2007 on the file of XXVI-Addl. City Civil Judge, Mayo Hall, Bangalore are

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modified.

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Hence the following:

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ORDER

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(i) The appeal is allowed-in-part.

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(ii) The judgment and decree dated 06.04.2011 passed in O.S.No.25631/2007 on the file of XXVI-Addl. City Civil Judge, Mayo Hall, Bangalore are modified.

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(iii) The plaintiff is entitled to half share in the suit property and so also defendant No.1.

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(iv) Registry to draw preliminary decree accordingly.

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(v) Interim application for production of additional documents is allowed.

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CHS/List No.: 1 Sl No.: 22

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Sd/JUDGE

Sri Aristatal M v. Mr Edison Plato

Case brief

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Sri Aristatal M v. Mr Edison Plato

Case brief

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