AI Structured Summary
Not yet generated for this judgment
Judgment
Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned Counsel for the respondents.
The appellants were the plaintiffs before the court below. It is the case of the plaintiffs that the first plaintiff was the mother and the second plaintiff was the minor son represented by the first plaintiff She was the widow of late R. Shankar. Defendants 1 and 2 were the mother-in-law and father-in-law of the first plaintiff and Defendants 3 and 4 were the brother-in-law and the sister-in-law. Shankar is said to have died on 5.6.2002. He was working as the Deputy Manager in Spare Parts Department of M/s. Hindustan Machine Tools, Bengaluru. It was the claim that Shankar along with defendants 1 to 4 constituted a Hindu Joint Family and the house property was acquired by the family and that Shankar had substantially contributed in the acquisition of the site and for construction of a house by raising a loan through DCC Bank and Canara Bank, Vijayanagar, as well as the loan raised on his employer. Therefore, it was contended that substantial contributions had been made by Shankar towards the acquisition of the property and for construction of the same. It was also stated that Shankar had obtained a Life Insurance Policy and had also a savings account in UCO Bank and Canara Bank, which were more fully described in Schedule ''B'' to the plaint. The first defendant, the mother of Shankar was said to have been nominated as the beneficiary in the Life Insurance Policies. It was the grievance of the plaintiffs that their interests were not taken care of during the life time of Shankar and therefore it is in this background that they were before the court not only seeking maintenance, but an equal share, in the suit schedule properties and therefore, the plaintiffs had sought division of the properties and have laid claim to the same.
Though the defendants 1 to 5 and 7 had entered appearance through Counsel, defendant No. 6 was placed ex-parte. Defendant No. 7 did not choose file any written statement. The second defendant had filed a written statement contending that the suit was not maintainable and denied the plaint averments. It was specifically denied that the suit ''A'' Schedule property was the joint family property and that Shankar had any claim over the same. It was asserted that suit ''A'' Schedule property was the self acquired property of the second defendant, namely, the father-in-law of the plaintiff No. 1 and it was also asserted that the site was allotted to the second defendant by the Binny Mills Employees Society and when Shankar was 11 years old. The second defendant who was an employee of the erstwhile Binny Mills, had acquired the suit schedule ''A'' property in the year 1979. It transpires that though there was one other item of property at Chamarajapet, which was sold as on 6.7.1992, out of the income of the second defendant, a residential building was constructed on suit schedule ''A'' property. It was also asserted that the second defendant had not inherited anything from his ancestors. The second defendant had discharged the loan raised for construction of the property by selling the property at Chamarajapet and that Shankar had executed a will in favour of the first defendant as regards the items specified in suit schedule ''B'' to the plaint and hence it was contended that the plaintiffs were not entitled to any relief and sought for dismissal of the suit.
Defendants 1, 3 and 4 had filed a memo adopting the pleadings of the second defendant.
Defendant No. 5, a Manager of the Life Insurance Corporation of India, had stated that the disbursements of the amount covered under the two Life Insurance policies would be in terms of the judgment of the court. It is on this basis that the court below has framed the following issues:--
"1. Whether plaintiffs prove that suit A schedule is the joint family property of themselves and defendants 1 to 4?
Whether the second defendant proves that suit "A" schedule is his separate property?
Whether the defendants 1 to 4 prove that deceased KShankar executed will in favour of first defendant in respect of "B" schedule property?
Whether the plaintiffs are entitled for 1/3rd share each out of 1/5th share of late KShankar in "A" schedule property?"
The court below has answered issue No. 1, 3 and 4 in the negative and issue No. 2 in the affirmative and dismissed the suit. It is that which is under challenge in the present appeal.
The learned Counsel for the appellants would contend that it is evident on record that Shankar had obtained a loan jointly along with defendants 2 and 3 from the Life Insurance Corporation of India, by pledging his LIC policies and had contributed to the construction of the house in suit ''A'' schedule property and it was therefore incorrect in the trial court having held that there was no contribution made by Shankar towards the construction of the house. This is also borne out by the evidence of PW. 2, which the court below has overlooked.
It is pointed out that Shankar had received a large amount as provident fund and gratuity to the tune of a sum of Rs. 5,92,000/- from his employer, as stated by PW. 3, an officer of M/s. HMT Limited. It is also pointed out that Shankar was relieved from services from M/s. HMT Limited on 18.11.2000 and there was outstanding loan amount to the tune of Rs. 1,06,235/- which was cleared by a cheque drawn on Canara Bank on 16.4.2001 and this was shortly after Shankar had retired from service and therefore it was evident that this amount had come through Shankar though paid into the account of defendant No. 2 since he was retired from service long ago and had no source of income. This was the only presumption that can be drawn. The court below had arrived at a conclusion that the defendants alone had repaid the entire loan inspite of there being glaring circumstances and other material to indicate that Shankar had substantially contributed not only in the purchase, but also in the construction. Even though it was claimed that there was a bequest made by late Shankar in his will in favour of defendant No. 1, no such document was produced and an issue framed in that regard had been negatived. The learned counsel would also contend that the court below has accepted the contention raised by the defendants to the effect that Shankar was terminally ill prior to his death for a long time and that a huge amount of money had been spent and of all the retrial benefits that Shankar had obtained had been spent towards his treatment in a large sum of money exceeding Rs. 9,73,000/- and therefore, there was no money available for Shankar to have contributed in the construction of the property. This, the learned Counsel for the appellants would submit, is a wrong presumption as the medical expenses were reimbursed by the employer of Shankar and therefore, it is incorrect to have presumed that all the retrial benefits were spent towards the medical treatment. It is in this vein that the learned counsel would seek to contend that the court below has grossly erred in dismissing the suit and overlooking the material evidence on record while drawing presumptions without any basis thereon and hence seeks that the judgment and decree be set aside and the suit be decreed as prayed for.
The learned counsel for the respondents - defendants 1 to 4 on the other hand, would seek to justify the judgment of the court below and would contend that the site in suit ''A'' schedule has been acquired when Shankar, the husband of the plaintiff No. 1 was a small child and it could not therefore be said that he had contributed anything towards the purchase of the site. Though it was so claimed in the suit, this could not be sustained in the course of evidence. Insofar as any contribution having been made towards the construction of the house on the suit ''A'' Schedule property is concerned, it is not readily possible to accept the contention that the sum of Rs. 5,00,000/- which was said to have been received by way of provident fund, gratuity and other retirement benefits, were all contributed towards the construction of the house. There is no material evidence tendered in that regard. Even the amount received by way of retirement benefits was not immediately after the construction was on nor is it shown as the monies that were utilized in repayment of the loans that were outstanding. The mere receipt of such monies by itself would not establish that Shankar had contributed towards the construction of the house or in the discharge of loans that were raised towards the construction on the site. It is further pointed out that defendant No. 2, namely, the father of Shankar and the father-in-law of the plaintiff No. 1 had sold two items of property as per Exhibits D. 16 and D. 17 in the year 1991 and the recitals therein would clearly reflect that the properties were being sold in order to enable him to construct on the suit ''A'' schedule property and further, the loan transaction that was created to further raise funds for the construction was in the name of defendant No. 2. And his sons defendant No. 3 and late Shankar were co-obligants to the loan transactions. Therefore, it cannot be presumed that Shankar had borne the liability entirely and the loan was discharged by him in entirety from the funds that he had received in the course of employment. The sequence of events and the relevant point at which any such retirement benefits may have been received by Shankar cannot be reconciled for any such presumption being drawn. Further, Exhibit D. 19 is a statement furnished by defendant No. 2 to indicate that from time to time, amounts were debited from his Savings Bank Account and credited to the loan account maintained by the Life Insurance Corporation and this would show the direct contribution by defendant No. 2 from his funds in the discharge of the loan and hence, the contention on the part of the appellants that Shankar had substantially discharged the loans is not borne out by the record. Further, insofar as the medical reimbursement in a large sum of Rs. 9,73,260/- is not only medical expenses that was incurred in the serious illness suffered by Shankar and which was spread over several years, where if not for the defendants, his medical expenses would not have been met and the unaccounted medical expenses which they have discharged are not even claimed by the defendants. Hence, the learned Counsel would submit that the plaintiffs have miserably failed to make out any case and seeks that the appeal be dismissed.
On the basis of the rival contentions and from an examination of the record, it is not possible to categorically hold that Shankar had contributed towards the purchase and construction of the suit ''A'' schedule properties in any particular sum of money. Though there is tangential evidence of certain contributions being made, it is not categorically established. Therefore, to grant a share in favour of the plaintiffs on the basis of the material on record would not be justified. Insofar as the Life Insurance policies are concerned, though the nomination was in favour of defendant No. 1, it is on record that the plaintiffs have derived the benefit covered under the policies and to that extent, the plaintiffs cannot be said to be aggrieved. Notwithstanding this proposition, it was on a suggestion by this court that on humanitarian consideration, the defendants would still be obliged to provide for the welfare of the minor child, plaintiff No. 2, if not for the benefit of plaintiff No. 1, the defendants have come forward to voluntarily pay a sum of Rs. 5,00,000/- which was not acceptable to the plaintiffs in the interest of justice. However, in all fairness, this court in its opinion, finds that the offer is fair and just and on merits, the plaintiffs would not be entitled to such benefit at all. Hence, the same is held to be an appropriate relief in the facts and circumstances of the case.
The appeal is therefore allowed. The judgment and decree of the trial court stands modified, in that, the plaintiffs shall be entitled to a sum of Rs. 5,00,000/- which is offered in full and final settlement by the defendants 1 to 4. A sum of Rs. 4,00,000/- shall be kept in a fixed deposit in the joint names of the plaintiffs and Rs. 1,00,000/- shall be paid to the plaintiffs together for their benefit, within a period of 90 days.