H. Arun Kumar Alva vs Subash Chandra Naik

P.V.Balakrishnan, J

RFA No.443/2018 is filed by the defeated defendants 1 to 5, 7 & 8 challenging the judgment and decree passed in O.S.No.17/2016 by the Sub Court Kasargod. RFA No.445/2018 is filed the non suited plaintiffs 1 to 5, 7 & 8, aggrieved by the judgment and decree passed in O.S.No.20/2015 by the Sub Court, Kasargod.

O.S. No. 20/2015 is a suit for partition and O.S.No.17/2016 is a suit for specific performance. Both suits were jointly tried by the trial court, by taking O.S.No.17/2016 as the leading case. The plaintiffs in O.S.No.20/2015 are defendants 1 to 8 in O.S.No.17/2016. Defendants 2 to 5 in O.S.No.20/2015 are the siblings of defendant No.1 and they are not parties in O.S.No.17/2016. The 6th defendant in O.S.No.20/2015 is the husband of the 2nd defendant, and he is is the 9th defendant in O.S.No.17/2016. It is the 2nd defendant in O.S.No.20/2015 who is the plaintiff in O.S.No.17/2016.

These suits pertain to a dispute between two branches of a family, one among them being the legal heirs of Sumathi Naik and Sadashiva Naik and other being the legal heirs of Muthakke Alva and Santha Alva.

Plaintiff in O.S.No.17/2016 belongs to the branch of Sumathi Naik and Sadashiva Naik. It is her case that the plaint A schedule property was fully occupied by the tenants with whom there were unending litigations. Hence, it was agreed by the other co-owners to sell the plaint A schedule property to her for Rs.60,00,000/-. The share of the defendants' branch was fixed at Rs.35 Lakhs excluding her share of Rs.5 Lakhs. Pursuant to the agreement, the 9th defendant who is her husband took various steps to vacate the tenanted premises. Defendant No.9 succeeded in it and he took vacant possession of the structures from the tenants of the A schedule property. Plaintiff handed over the entire agreed consideration for the sale of 'A' schedule property to the defendant No.9, who in turn paid it to the other co-owners. Thereupon, all the other co-owners executed powers of attorney authorising defendant No.9 with powers, right and authority to deal with the property. Accordingly, defendant No.9, constructed a commercial complex by name “Ullipady Chambers” by utilising the plaintiff's funds and the same is described in plaint 'B' schedule. Pending the execution and registration of a formal sale deed of A schedule property in favour of plaintiff, defendant No. 9, as constituted attorneys of co-owners, executed an agreement dated 24/4/2001 inter alia; confirming the receipt of the entire agreed sale consideration from the defendants, having put the plaintiff in exclusive possession of the A schedule property by all co-owners and having agreed to execute and register sale deed for the A schedule property in her favour. Thereafter, four shop rooms in the new building, which were sold to the respective tenants, were also re-purchased by the plaintiff. Subsequently, when disputes arose between the parties, defendants 1 to 8 filed O.S No.20/2015 seeking partition of A & B schedule properties. Plaintiff has fulfilled her part of the contract and she is always ready and willing to perform the same and the defendants have failed and neglected to perform their part of the contract and execute the sale deed. Hence, she filed the suit for specific performance.

The defendants 1 to 8 in O.S.17/2016 (plaintiffs in O.S. No.20/2015), who are the legal heirs of Muthakke Alva and Shanta Alva, denied the existence of an agreement in 1996 in between the co-owners to sell the property, the receipt of share of sale consideration to the tune of Rs.35,00,000/- and of having given consent to sell, convey and transfer A Schedule property to the plaintiff for Rs.60 Lakhs. It was contended that the plaint A schedule property and the building situated therein were administered by their father for more than 40 years and when disputes arose with the tenants, had entrusted the plaintiff's husband (9th defendant) to administer the property and proceed with the litigation. Accordingly, they along with other co-owners executed powers of attorney in favour of the 9th defendant, with trust and faith and without receiving any consideration. When they realised that the plaintiff and the 9th defendant mismanaged the property, committed fraud and concocted documents to grab A schedule property, they, by letter dated 12/09/2011 revoked the powers of attorney executed by them. The purported agreement for sale dated 24/01/2001 is a sham document and they have no knowledge about it, till the copy of the same was produced in O.S.20/2015. Neither the plaintiff nor her husband invested any money for the improvement of the B schedule property and hence, in these circumstances, they filed O.S.No.20/2015 seeking partition of the properties.

The evidence in this case consists of the oral testimony of DW1 and DW2 and documentary evidence Exhibits A1 to A41 and and Exts.B1 to B19. The trial court on appreciation of the evidence on record, by a common judgment dismissed O.S.20/2015 and decreed O.S.17/2016 .

Heard both sides and perused the records.

The points that arises for consideration in these appeals are;

i) Whether the plaintiff in O.S.17/2016 is entitled to specific performance of Ext.A23 agreement ?.

ii) If not, are the plaint schedule properties partible?

iii) Are the plaintiffs in O.S.20/2015 entitled for partition of the plaint schedule properties? If so, the shares?

iv) Whether the impugned common judgment and decrees passed by the trial court are correct and whether they require any interference?

v) Reliefs and costs.

We will hereinafter refer the parties according to their status in O.S.17/2016, for easy reference. It is the case of the plaintiff that when all the co-owners decided to sell the plaint A schedule property, the plaintiff being desirous of purchasing the same, entered into an oral agreement with them. It is her case that they agreed to sell, convey and transfer the plaint A schedule property to the plaintiff for Rs.60,00,000/- and the share of the defendants' branch was fixed at Rs.35,00,000/-. It is the further case of the plaintiff that consequent to the agreement, the plaintiff handed over the entire agreed sale consideration to defendant No.9, who in turn paid it to the other co-owners. It is also her case that consequent to the payment, all the co-owners executed powers of attorney authorizing and empowering defendant No.9 with authority to manage, sell lease, etc. of the A schedule property and on that basis, defendant No.9 executed Ext.A23 agreement for sale on 24/4/2001 in favour of the plaintiff.

On the other hand, the contesting defendants would contend that no such oral agreement existed and no payment of the sale consideration was made as alleged by the plaintiff. It is also their case that even though they have executed powers of attorney in favour of the 9th defendant during 1996-97 period, the same were cancelled on 12/9/2011 vide Ext.B3 since, the 9th defendant in collusion with the plaintiff mismanaged the property and misappropriated the income derived from it.

While appreciating the contentions referred above and the evidence on record, at the outset itself we may say that there is absolutely no convincing evidence available to show the existence of an oral agreement for sale between the parties. It is very pertinent to note that in spite of having set up a case of oral agreement for sale, the plaintiff has not stepped into the box to depose her version and there is absolutely no explanation forthcoming for the same. Similar is the case with regard to the alleged payment of sale consideration made by the plaintiff to the contesting defendants, through the 9th defendant. As stated earlier, the plaintiff has not stepped into the box to depose her version. She also did not choose to examine her husband(D9) through whom the consideration allegedly changed hands. Further, it is also not believable that such a huge sum was parted by the plaintiff, without obtaining any documents. At this juncture we would take note of the fact that the general powers of attorney executed by the contesting defendants allegedly, after receiving the sale consideration, also is totally silent regarding the receipt of consideration. The plaintiff is relying upon Ext.A42/B1 to support her contention regarding payment of sale consideration to the contesting defendants. A perusal of the afore document would go to show that it is allegedly an extract from the income tax returns filed with the Income tax Authorities, balance sheets and other records of the plaintiff. It is attested by DW1, her Chartered Accountant. The said document is relied on to prove the payment of Rs.35 Lakhs. The second page of the said document would go to show that the same is only a photocopy of the statement of expenditure allegedly signed by the plaintiff and attested by DW1. At this juncture, it is to be taken note that DW1 during cross examination has stated that Ext.B1 is the extract taken by him and that the certified copies of the documents to the extent allowable under the Income tax Act and the certified copies of the returns can be obtained from the Income tax Department. But the evidence on record shows that no such documents have been produced by the plaintiff and again, there is no explanation forthcoming for the same. Hence, considering the afore circumstances, including the fact that the documents based on which Ext.B1 was prepared has not been produced, we are of the view that no reliance can be placed upon Ext. B1/Ext.A42. Ergo, we find that the plaintiff has failed to establish her case regarding the oral agreement for sale and payment of sale consideration to the other co-owners. Ext.A23 agreement is executed by the 9th defendant on the strength of the powers of attorney, in favour of his wife, the plaintiff. It is founded on the alleged oral agreement. The oral agreement and passing of consideration have already been held against, by us. If so, the plaintiff cannot succeed in getting a decree of specific performance on the basis of Ext.A23 agreement, which again is not proved as required by law.

In the light of our afore findings, the next question to be considered is whether the plaint schedule properties are partible and if so, the shares to which each are entitled. While considering the afore question it is very pertinent to note that, none of the contesting defendants have denied the execution of the general powers of attorney in favour of the 9th defendant during 1996-1997. The powers of attorney authorises him to manage the property, carry out construction works, demolish the existing structures, sell, lease, mortgage, etc. The evidence on record reveals that on the basis of the afore powers of attorney, the 9th defendant has assigned four shop rooms in the plaint B schedule building “Ullipady chambers” in favour of four tenants by name Sarvothama Pai, Mohammed Thaj, P.G.Venkateshwara and P.G.Narayana. Subsequently, they have assigned their entire rights over the shop rooms to the plaintiff as per Exts.A24 to A27 documents executed in 2003 and 2007 and she is the absolute owner thereunder. Therefore, the property covered by Exts.A24 to A27 documents will not be available in the common pool for partition.

Moving further, it is the specific case of the plaintiff that B schedule building has been constructed by her with the help of the 9th defendant, by utilising her own funds. DW2 during cross examination has specifically admitted that the contesting defendants have not contributed any amount to the construction of a new building in the suit property and that they have no contention that the 9th defendant has constructed the new shopping complex in the suit property by utilising the income derived from the property. He specifically stated that the building now exiting in the suit property is not constructed from out of the income of the property. At this juncture at the sake of repetition, we may say that the contesting defendants have not disputed the execution of general powers of attorney in favour of the 9th defendant and the same authorises the 9th defendant not only to look after and manage the property, but also to carry out any construction work after demolishing the existing building /structures and to lease out the constructed building. The relevant clause in the powers of attorney is extracted hereunder.;

“1. To look after and manage the schedule property ; to improve; to undertake, commence and carry-out any construction work or plantation; and if necessary, to demolish the existing building/structures thereon, and also to lease out the constructed building existed and going to exist in the schedule property.”

It is on the basis of this authority, as an agent of other co-owners the 9th defendant has obtained Ext.A20 possession certificate, vacated the tenants, demolished the existing structures, constructed a new building, without any objections from the part of the contesting defendants. We take note of the fact that the first sign of resentment/objection from the side of the contesting defendants came only in 2011 when they issued Ext.B3 notice dated 12/9/2011 cancelling the powers of attorney. In short, we may say that the plaint B schedule building was constructed by the 9th defendant utilising the funds of the plaintiff, only on the basis of the authority granted in his favour as an agent, by the other co-owners under the powers of attorney which was in vogue during that time. The new construction so effected, necessarily forms part of the co-ownership property. If so, the plaintiff cannot claim any exclusive right over the building and can only obtain contribution of its value from the other sharers. Ergo, considering the afore facts and circumstances, we are of the view that, even though the plaint B schedule property, except the properties covered by Exts.A24 to A27 are partible, the plaintiff will be entitled to contribution regarding the value of the building.

The upshot of the afore discussions is that the plaintiff in O.S.17/2016 is not entitled to relief of specific performance as sought for. On the other hand, it is found that the plaint A schedule property and the B Schedule property, excluding the properties covered by Exts.A24 to A27 are partible. The plaint A and B schedule properties except the afore excluded properties are liable to be partitioned into 11 equal shares and plaintiffs 1 to 5 and 7 and 8 together and defendants 1 to 5 in O.S. No.20/2015 are entitled to one share each. The plaintiff in O.S.17/2016(the 2nd defendant in O.S.No.20/2015) will also be entitled to contribution of the value of the building from the other sharers, in the same proportion as above. The said amount would be a charge on the share of the respective sharers.

In the result, RFA No.443/2018 and RFA 445/2018 are allowed as follows;

i) The common judgment and decree dated 30/6/2018 in O.S.20/2015 and O.S.No.17/2016 passed by the Sub Court, Kasargod are set aside.

ii) O.S. No.17/2016 will stand dismissed.

iii) O.S. No.20/2015 is allowed and a preliminary decree partitioning the plaint A & B schedule properties, except the properties covered by Ext.A24 to 27 documents, into 11 equal shares is passed and the plaintiffs 1 to 5 and 7 and 8 together and defendants 1 to 5 are allotted one share each.

iv) The 2nd defendant in O.S. No.20/2015 will be entitled to contribution of the value of the plaint B schedule building in the same proposition as stated in clause (iii) above. The said due of each sharer will be a charge on the share of the respective sharer.

v) Equities shall be considered in the final decree proceedings.

vi) Considering the facts and circumstances of this case and especially the relationship between the parties, costs made easy.