S. Mahadevappa vs Puttalingaiah

The plaintiff in OS No. 6766 of 2006, on the file of XXII Additional City Civil Judge, Bangalore, has filed this appeal u/s 96 CPC, being aggrieved by the dismissal of the suit filed by him for the relief of partition and separate possession of the property described in the schedule appended to the plaint.

For the sake of convenience, the parties would be referred to as per their ranking in the family court.

The first defendant Shivamma is the mother of plaintiff and second defendant is his brother. Shivamma died during the pendency of the suit. Hence, plaintiff and the second defendant have been treated as the legal heirs of Shivamma. Defendants 3 and 4 are the tenants in the suit schedule property and hence they have been arrayed as proper parties.

The case of the plaintiff is that the suit schedule property was purchased in the name of the deceased first defendant Shivamma and that she did not have any independent income as such. It is his case, as projected before the trial court, that he had contributed finance to his mother in order to purchase the suit schedule property and to get the property released from the Bangalore Development Authority [BDA]. He is said to have helped his mother in putting up a residential house in the suit schedule property. With these pleadings, he had requested the court to grant 1/3rd share in the suit schedule property and to order for division of the same by metes and bounds.

The defendants 1 and 2 chose to file a joint written statement, denying all the material plaint averments. The plaintiff has been called upon to prove the contents of the plaint strictly. The case, as projected before the trial court by the defendants 1 and 2 is that the first defendant purchased the suit schedule property out of her own earnings and that she was able to put up a building after getting the property released from BDA. It is their case that Shivanna, father of plaintiff and second defendant and husband of first defendant, had also helped her financially and therefore the plaintiff does not have any right in the suit schedule property. It is the further case of the second defendant that the first defendant had executed a gift deed in his favour relating to the suit schedule property and therefore he has become the absolute owner of the same. With these pleadings, they have requested the court to dismiss the suit.

On the basis of the above pleadings, the trial court framed the following issues:

Whether the plaintiff proves that the suit schedule property was the property of late Shivanna, father of the plaintiff and 2nd defendant?

Whether the plaintiff proves that himself and the defendants are the members of the joint family and the suit schedule property is the joint family property?

Whether the defendants 1 & 2 proved that the suit schedule property is the self acquired property of the 1st defendant?

Whether the defendants prove that the 1st defendant had executed a gift deed dated 28.04.006 gifting away the suit schedule property in favour of the 2nd defendant?

Whether the plaintiff proves that he is entitled for 1/3rd share in the plaint schedule property?

Whether there should be an order as to the enquiry into the past and future mesne profits?.

What Order or Decree?

Plaintiff has been examined as PW1 and two other witnesses have been examined on behalf of the plaintiff. On behalf of the defendants, first defendant herself has been examined as DW1 and four other witnesses have been examined on their behalf. Five documents were exhibited on behalf of the plaintiff and as many as 16 documents have been exhibited for defendants.

The trial court has answered issues 1, 2, 5 and 6 in the negative and issues 3 and 4 in the affirmative. Consequently, the suit is dismissed by a considered judgment and decree dated 21-4-2009. It is this judgment and decree is called in question by the plaintiff in the suit on various grounds as set out in the memorandum of appeal.

Learned counsel for the appellant-plaintiff has vehemently contended that the trial court has lost sight of the important aspect that the deceased Shivamma had no means to purchase the suit schedule property and she had no financial capacity to put up a building therein. It is argued that the plaintiff was working as a helper in Kirloskar company and therefore he was helping his mother not only in purchasing the property but also in putting up a building therein. It is further argued that the trial court has adopted a wrong approach to the real state of affairs and has also not analyzed the evidence on the touchstone of intrinsic probabilities.

The learned counsel for the respondent has supported the judgment of the trial court contending that the trial court has properly analyzed the evidence and has applied proper provisions of law to the facts of the case.

After hearing the learned counsel for the parties, the following points arise for our consideration in this appeal:

i. Whether the court below is justified in holding that first defendant Shivamma was the absolute owner of the suit schedule property?

ii. Whether she has executed a gift deed in favour of the second defendant and if so, whether the defendants have proved that the execution of gift deed is in accordance with law?

iii Whether any interference is called for by this court? If so, to what extent?

Re: Point (i):

Admittedly, the plaintiff has not been able to prove that there was joint family property and out of the income derived from the property, the suit schedule property was purchased in the name of first defendant. On the other hand, the plaintiffs case is that he was contributing financially to his mother and out of such contribution, the first defendant purchased the suit schedule property by paying Rs. 300/- to BDA and later on got the property released from BDA. No acceptable evidence is placed on record to this effect. It is'' not the case of the plaintiff that Shivamma was only a name lender and that the amount was contributed by him and his father and therefore she had become a trustee on behalf of the plaintiff and second defendant and their father. In the light of non-production of acceptable material in regard to the financial contribution said to have been made by the plaintiff to enable deceased Shivamma to purchase the suit schedule property, it is not worth to look into as to whether Shivamma had her own income to purchase the property. Even otherwise, it is to be seen that Shivamma''s husband was a government employee and retired in 1986. If at all any financial help was given, it was Shivanna. He did not challenge the acquisition made on Shivamma in any manner. Accordingly we answer the point (1) in the affirmative.

Re: Point (ii):

Being the absolute owner of the property in question, Shivamma had every right to deal with the property in any manner she liked. Ex. D12 is a registered gift deed executed by Shivamma in favour of second defendant. Whoever relies upon a gift deed, such a person is expected to prove the same at least by examining one of the attestors, as it is a compulsorily attestable document, as per Section 68 of the Indian Evidence Act, 1872. Attestors have been examined. In spite of a thorough cross-examination by the learned counsel for the appellant-plaintiff, nothing has been culled out from their mouth to discard their deposition. Suffice to state that the trial court has properly analyzed oral and documentary evidence in regard to proof of Ex. D12, which has been produced from the lawful custody.

It is also to be seen that both defendants 1 and 2 have filed a common written statement and the first defendant, being absolute owner of the suit schedule property, has supported the case of her son, who is the second defendant. In this view of the matter, the trial court has not committed any illegality or perversity in the matter of appreciation of evidence, particularly, in regard to acquisition of title by Shivamma and transfer of the property in favour of second defendant through a valid document of conveyance. Hence, the trial court is justified in holding that Ex. D12 has been proved in accordance with law. We answer point (ii) accordingly.

Re: Point (iii):

In view of our answer to points (i) and (ii), we hold that no interference is absolutely called for and the appeal is liable to be dismissed.

ORDER

Appeal is dismissed by upholding the judgment of the trial court. There is no order as to costs.