Smt. Gowramma Vs Smt. Hemalatha Y N

SRI MAHESH Y T S/O LATE THYAGARAJ, AGED ABOUT 41 YEARS, RESIDING AT NO 940, MAHESHWARAMMA NILAYA, NEAR OLD PRIMARY SCHOOL, OKKALIGARA BEEDI, YELAHANKA, BENGALURU NORTH, BENGALURU - 560 064.

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SMT. MAMATHA T D/O LATE THYAGARAJ, AGED ABOUT 36 YEARS, RESIDING AT NO 940, MAHESHWARAMMA NILAYA, NEAR OLD PRIMARY SCHOOL, OKKALIGARA BEEDI, YELAHANKA, BENGALURU NORTH, BENGALURU - 560 064.

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…APPELLANTS

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(BY SRI. KRISHNA B.J, ADVOCATE)

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HC-KAR

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AND:

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SMT. HEMALATHA Y N W/O LATE MURALI T, AGED ABOUT 38 YEARS, C/O SURESH BUILDING, NO. 1289, 1ST MAIN, GANDHINAGAR, YELAHANKA, BENGALURU - 560 064.

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Y.M. HITESH S/O LATE MURALI T, AGED ABOUT 16 YEARS, C/O SURESH BUILDING, NO 1289, 1ST MAIN, GANDHINAGAR, YELAHANKA, BENGALURU - 560 064.

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Y.M AMRUTHA S/O LATE MURALI T, AGED ABOUT 12 YEARS, C/O SURESH BUILDING, NO. 1289, 1ST MAIN, GANDHINAGAR, YELAHANKA, BENGALURU - 560 064.

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…RESPONDENTS

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(BY SRI. NARENDRA BABU B.K, ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.02.2023 PASSED IN OS NO. 4879/2017 ON THE FILE OF THE XXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU PARTLY DECREEING THE SUIT FOR PARTITION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:27035 RFA No. 1065 of 2023

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is filed by defendants No.1 to 3 assailing the preliminary decree drawn in O.S.No. 4879/2017 granting 1/4^th share to each of the plaintiffs. The said decree is under challenge.

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For the sake of convenience, the parties are

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referred as per their ranks before the Trial Court.

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3. The family tree of the family is as under:

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Y.M. Thyagaraj (dead) - Gowramma. M

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(Wife) (Defendant No.1)

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Mahesh Y.T Murali .T - Hemalatha .Y.N Mamatha T. (Defendant No.2) (dead) (Wife) (Plaintiff No.1) (Defendant No.3)

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Y.M.Hitesh Y.M.Amrutha

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(son of Murali) (Plaintiff No.2) (daughter of Murali) (Plaintiff No.3)

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This partition suit is filed by the widow and children of one Murali, who is the second son of propositor

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Y.M.Thyagaraj. The plaintiffs contend that the suit schedule property was purchased by propositor Y.M.Thyagaraj from the erstwhile owner, namely, Smt. Basamma, under a registered sale deed dated 03.11.2003 for valuable sale consideration. The plaintiffs specifically assert that propositor Y.M.Thyagaraj constructed a residential house on the vacant property and rented it out for Rs.15,000-00 per month. The propositor Y.M.Thyagaraj is reported to have died on 19.05.1015, leaving behind the plaintiffs and defendants. The plaintiffs specifically averred that they, along with the defendants, constitute an undivided joint hindu family and there is no division till today. The plaintiffs' primary grievance is that the defendants are collecting rents generated from the suit schedule property and their legitimate share in the rents is not paid by the defendants despite repeated requests. Hence, the present suit is filed.

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Defendant No.1 – Smt. Gowramma, widow of the propositor, Y.M. Thyagaraj filed her written statement

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and categorically denied the entire set of averments made

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in the plaint. She asserted that her late husband had independently purchased the vacant site and that the construction thereon was undertaken using loans raised from various individuals. Defendant No.1 specifically contended that a sum of Rs.30,00,000/- was borrowed from multiple persons for construction purposes, a substantial portion of which remains outstanding. It was further alleged that her son, Murali, had accepted a sum of Rs.5,00,000/- partly in cash and partly by cheque in full settlement of his rightful share. Additionally, Defendant No.1 claimed that a further sum of Rs.50,000/- was paid

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to Plaintiff No.1 through cheque. She also stated that her husband had been diagnosed with cancer and an amount of Rs.12,00,000/- had been incurred towards his medical treatment. According to her, the liabilities are yet to be discharged and can be cleared only through the rent derived from the suit schedule property and the income earned by Defendant No.2. She further claimed that the

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remaining portion of the tenements is generating only Rs.13,000/- per month, which is barely sufficient to meet

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the defendants’ essential needs. Hence, she prayed for dismissal of the suit.

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The trial court, having considered the rival contentions, framed appropriate issues for adjudication and permitted both parties to lead oral and documentary evidence. Upon appreciation of the entire material on record, the trial court answered Issue No.3 in the negative and held that the defendants failed to establish that the construction on the suit schedule property was carried out by Defendant No.1 through her brother, Muniyappa, or through any financial contribution from Defendant No.2. While answering Issues Nos.1 and 2 in the affirmative, the trial court concluded that the plaintiffs were entitled not to a 1/3rd share as claimed, but to a 1/4th share in the suit schedule property. Aggrieved by the said judgment and decree, the defendants have preferred this appeal before this Court.

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Heard the learned counsel appearing for the

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defendants and the learned counsel for the plaintiffs. Perused the records.

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Learned counsel for the defendants, reiterating the grounds urged in the memorandum of appeal, vehemently contended that the trial court erred in not properly appreciating the rebuttal evidence placed on record. Referring specifically to the evidence led by the defendants, he submitted that Murali, husband of Plaintiff No.1 had already received a sum of Rs.5,00,000/- towards his legitimate share, and therefore, the present partition suit is not maintainable. In the alternative, he argued that even assuming the plaintiffs are entitled to a share, the evidence clearly demonstrates that the defendants constructed the additional floors by availing bank loans. In support of this plea, reliance was placed on Exs.D2 and D3. It was argued that the trial court completely ignored this crucial rebuttal evidence.

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In response, learned counsel for the plaintiffs

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contended that the plaintiffs have been collecting rents and that certain portions of the property were leased out, and the proceeds were utilized to raise additional construction. He further submitted that, in any case, the constructions in question were undertaken during the lifetime of the propositor Y.M. Thyagaraj and not through any subsequent loan arrangements by the defendants. Therefore, the plea raised by the defendants is untenable, and the appeal deserves to be dismissed.

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Having heard the counsels, this Court has independently appraised the pleadings of the parties. oral and documentary evidence produced by the plaintiffs and defendants. The following points would arise for concentration:

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1. Whether the findings recorded by the trial court on issue No.3 that the defendants have failed to prove that the construction made in the suit schedule was with the assistance of

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funds mobilized by defendant No.1 through her brother Muniyappa and contribution made by defendant No.2 suffers from perversity?

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2. Whether defendants by adducing rebuttal evidence have succeeded in substantiating that the additional floors were constructed by availing loan from the ICICI bank which was later transferred to the DHFL bank as evidenced at Ex.D3?

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3. What order?

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Findings on points No.1 and 2:

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Though the defendants have taken a specific defence in their written statement that they had availed loans to the tune of Rs.30,00,000/-, a careful reading of the pleadings reveals that no material particulars regarding the alleged hand loans have been furnished. The written statement is bereft of any details such as the names of the lenders, the dates on which such amounts were borrowed, the amounts received from each lender,

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the purpose for which the funds were utilized, or any acknowledgment or documentation evidencing such hand loans. The vague assertion of having borrowed Rs.30,00,000/- does not meet the requirement of specific pleadings as mandated under Order VI Rule 2 of the Code of Civil Procedure, 1908.

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However, during the course of evidence, the defendants sought to substantiate their claim by placing on record certain documents relating to institutional loans. A housing loan sanctioned by ICICI Home Finance is marked as Ex.D2. A perusal of the said document reveals that ICICI sanctioned a sum of Rs.6,24,971/-, which was disbursed to the defendants, and the equated monthly installment (EMI) was fixed at Rs.5,930/-. Subsequently, this loan was taken over by another financial institution Dewan Housing Finance Corporation Limited (DHFL) and a fresh loan of Rs.15,36,018/- was sanctioned in favour of the defendants. The tenure of the DHFL loan was fixed at 15 years, with an EMI obligation of Rs.15,775/- per

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month. While these documents may evidence the

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existence of institutional loans, they fall short of substantiating the claim of Rs.30,00,000/- as pleaded.

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More significantly, at paragraph 11 of the written statement, the defendants have themselves acknowledged not only the existence of these loans but also that they had executed lease agreements in respect of portions of the suit schedule property and inducted tenants therein. This unequivocal admission by the defendants assumes relevance in the context of the plaintiffs’ claim for partition and mesne profits. For clarity, paragraph 11 of the written statement is reproduced below:

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"11. The plaintiff has conveniently not pleaded anything about these legal debts of the family. The plaintiff is liable to share all these legal liabilities along with the defendants before claiming any share in the suit property. The defendants has produced all the documents evidencing the borrowing of the loans and also the lease agreements relating to the persons who are in occupation of the suit property as tenants."

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A careful reading of the pleadings, particularly paragraph No.11 of the written statement, reveals a categorical admission on the part of the defendants that they had inducted tenants into the suit schedule property during the pendency of the proceedings. The defendants have further admitted that the leased portions include those developed through funds allegedly borrowed by way of loans. However, despite such admissions, the defendants have failed to disclose or produce any particulars relating to the rent collected from the tenants. This omission is significant, particularly in light of their claim that they are entitled to reimbursement of the costs incurred in putting up the construction.

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It is a settled principle that a co-owner who undertakes construction on joint family property is entitled to seek compensation from the other co-owners, provided such construction is duly established and the accounts relating to the expenses and income arising therefrom are

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fully disclosed. In the present case, although the defendants may have had a legitimate claim for contribution towards the cost of construction, they were duty-bound to disclose complete details of the rental income generated from the tenanted portions of the property, particularly from the year 2017 onwards. Despite admitting that they were in possession of lease deeds, the same were not produced before the trial court, nor were the particulars of the rent collected furnished during trial.

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In this background, the contention of the defendants that the plaintiffs must contribute towards the outstanding housing loan liability incurred for construction cannot be accepted in the absence of proper disclosure of the income generated from the suit schedule property. This Court is of the considered view that any claim for contribution towards construction costs by the defendants will have to be assessed in the final decree proceedings. At that stage, the total amount of rent collected by the defendants from the leased portions, including the security

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deposits received, must be accounted for. Only after adjusting such income can any residual liability, if any, be determined and apportioned among the parties, including the plaintiffs.

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Although the trial court rightly held that the defendants had failed to establish that the construction was undertaken solely by Defendant No.1 with the assistance of her brother Muniyappa and with financial contribution from Defendant No.2, the rebuttal evidence placed on record does show that a housing loan was availed. Documents marked as Exs.D2 and D3 indicate that loans were sanctioned by ICICI Home Finance and subsequently by DHFL. However, there is no evidence on record to show who repaid the equated monthly instalments (EMIs). In the absence of any such financial records or details of how the rent was utilised for repayment of the loan, the claim of the defendants remains unsubstantiated. It was incumbent upon the defendants not only to furnish details of rent collected but

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also to produce accounts demonstrating how such income was appropriated, particularly whether it was utilised for servicing the housing loan.

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In light of these crucial omissions and admissions made by the defendants in paragraph No.11 of their written statement, this Court is of the considered view that while the defendants may seek contribution from the plaintiffs towards the cost of construction, such a claim must necessarily be preceded by a full and transparent accounting of the rental income received from the suit schedule property. The feasibility of partition, and any adjustment towards construction costs, shall be worked

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out in the final decree proceedings, subject to the defendants furnishing complete and verifiable records relating to the rents collected, security deposits received, and the manner in which such amounts were utilised.

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Accordingly, and with the above observations,

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this Court answers Point No.1 in the negative and Point No.2 in the affirmative.

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The appeal stands dismissed, subject to the liberty reserved in favour of the defendants to substantiate their claim for contribution during the final decree proceedings, strictly in accordance with the observations made hereinabove. The defendants are also directed to furnish, during the said proceedings, the particulars of the security deposits received from tenants at the time of executing lease deeds .

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SD/(SACHIN SHANKAR MAGADUM) JUDGE

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HDK List No.: 1 Sl No.: 15 CT: BHK

Smt. Gowramma v. Smt. Hemalatha Y N

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Smt. Gowramma v. Smt. Hemalatha Y N

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