H N Yogaraja vs Smt Prathima
2022 Latest Caselaw 2653 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                           AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                 M.F.A.No.7790/2016 (FC)

BETWEEN :

H.N.YOGARAJA
S/O NEMAYYA INDRA,
AGED ABOUT 49 YEARS,
PRESENTLY R/AT BYAKODU POST,
KUDARURU VILLAGE, SAGARA TALUK,
SHIMOGA DISTRICT-577 401                        ...APPELLANT

               (BY SRI B.V.GANGI REDDY, ADV.)

AND :

SMT.PRATHIMA
D/O JAYAVARMA INDIRA,
AGED ABOUT 40 YEARS,
JUNIOR ENGINEER (CIVIL),
R/AT MANGALURU MAHANAGARA PALIKE,
LALBAGH, MANGALURU-575003.                  ...RESPONDENT

             (BY SRI P.P.HEGDE, SENIOR ADV. A/W
                   SRI NIRANJAN H.Y., ADV.)

     THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURT ACT, 1984, AGAINST THE JUDGMENT AND
DECREE DATED 05.02.2016 PASSED IN M.C.NO.5/2015 ON THE
FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, DAKSHINA
KANNADA, MANGALURU, ALLOWING THE PETITION FILED
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UNDER SECTION 13(1)(ia) OF THE HINDU MARRIAGE ACT, FOR
DISSOLUTION OF MARRIAGE.

      THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:



                    JUDGMENT

This appeal is directed against the judgment and

decree dated 5.2.2016 passed in MC.No.5/2015 on the

file of the Family Court, Dakshina Kannada, Mangaluru,

insofar as the Family Court holding that the respondent

is having equal right in Sy.No.513, measuring 9.28

acres situated at Kudurur village, Karur Hobli, Sagar

Taluk, and in giving direction to alienate the subject

property, thereby sharing the sale proceeds in 50:50

ratio between the appellant and the respondent herein.

2. Succinctly stated the facts are that the

respondent had filed petition in MC.No.5/2015 under

Section 13(1)((ia) of the Hindu Marriage Act, 1955 ('Act'

for short) for the relief of decree of divorce and for the

property equivalent to the expenses incurred for

development and for purchase of the schedule property

or the present market value of the property relating to

the expenses incurred.

3. The marriage solemnized between the parties

was registered on 17.2.2001 before the Registrar of

Marriages, Bantwala. The respondent was selected as a

Junior Engineer having cleared the KPSC examination

in the year 2005 and she was posted to Manvi

Municipality. The respondent alleged that the appellant

was staying idle at home and was harassing her

suspecting her chastity. It was contended that while she

was working in Kundapur, the property to an extent of

9.28 acres of land Sy.No.513, situate at Kudururu,

Karuru Hobli, Sagar Taluk, (subject property) was

purchased in the name of the appellant, wherein she

along with her mother together had invested Rs.10.32

lakhs. It was further submitted that on 20.1.2012, the

appellant in the presence of witnesses has executed an

agreement agreeing to sell the subject property and out

of the sale proceeds it would be distributed among them

in the ratio of 50:50 and also refund the amount of

Rs.3,35,000/- obtained from the mother of the

respondent herein. The value of the subject property

would be now more than Rs.80.00 lakhs, 75% of the

amount was invested by her for acquiring the subject

property and as such, she is entitled to the same. On

the ground of cruelty, the respondent sought for

dissolution of her marriage with the appellant.

4. On service of notice, the appellant appeared

through learned counsel and filed objections denying

the allegations made against him and he retaliated

making certain allegations against the respondent.

5. The family Court has framed the following

points for consideration;

1) Whether petitioner proves that she was subjected to cruelty and harassment due to the willful conduct of respondent and thereby committed the matrimonial offence of cruelty, as such she is entitled to get divorce?

2) Whether petitioner proves that she is entitled to get the amount invested in purchase of 9.25 acres of land in Kudururu village, Karur Hobli, Sagar and also for its investment in the present market rate towards compensation?

3) What order?

and answered the same in the affirmative for the

reasons assigned therein, extensively analyzing the

material evidence on record. Being aggrieved by the

said judgment and decree, the appellant has preferred

this appeal.

6. Learned counsel appearing for the appellant

argued that the family Court has no jurisdiction to deal

with the property. The direction issued by the Family

Court to alienate the subject property holding that both

the parties are entitled to equal share at the ratio of

50:50 and further directing the appellant to pay such

amount to the respondent being without jurisdiction

suffers from material irregularity. Learned counsel has

invited the attention of this Court to Section 27 of the

Act and contended that in any proceedings under the

Act, the Court may make such provisions in the decree

as it deems just and proper with respect to any property

presented, at or about the time of marriage, which may

belong jointly to both the husband and the wife.

Learned counsel further submitted that the Department

of Forests has initiated proceedings against the

appellant relating to the property in question.

7. Learned Senior Counsel Sri.P.P.Hegde

appearing for the respondent submitted that Section 27

of the Act is not applicable to the present set of facts in

terms of Section 7(1)(c) of the Family Courts Act, 1984,

the Family Court has jurisdiction to deal with the

properties belonging to the parties before the said

Court. Learned counsel submitted that major portion of

the amount to an extent of 10.32 lakhs was contributed

by the respondent along with her mother to acquire the

property in question. The appellant got registered the

said property to his name by putting threat on the

respondent and her mother. The marital relationship

between the parties having irretrievably broken, the

Family Court has allowed the petition under Section

13(1)(ia) of the Act and directed the appellant to pay

50% of the amount received from the sale proceeds of

the subject property, which certainly comes within the

ambit of the provisions of the Family Courts Act and as

such, no interference is warranted. Learned Senior

Counsel further submitted that there is no dispute

regarding subject land, the proceedings initiated by the

Department of Forests relates to encroachment made by

the appellant and the same has no bearing for

adjudicating upon the issue in the present case.

8. We have heard the learned counsel

appearing for the parties and perused the material on

record.

9. The controversy rests in a narrow compass

inasmuch as jurisdiction of the order of the Family

Court in holding that both the parties are having equal

rights in the ratio of 50:50 in the subject property and

thereby directing the appellant to alienate the subject

property and pay 50% of the amount to the respondent.

10. Section 27 of the Act reads thus;

"27. Disposal of property: In any proceedings under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife."

11. Section 7(1)and the Explanation (c) of the

Family Courts Act, 1984 reads thus;

"7. Jurisdiction: (1) Subject to other provisions of this Act, a Family Court shall-

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family court extends.

Explanation: The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:

(a) xxxxx

(b) xxxxx

(c) a suit or proceedings between the parties to a marriage with respect to the

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property of the parties or of either of them."

12. In our considered opinion, Section 27 of the

Act is attracted when the property presented at or about

the time of marriage belongs jointly to both the parties;

whereas Section 7(1) and the Explanation (c) of the

Family Courts Act, 1984 deals with respect to the

property of the parties or either of them relating to a

suit or proceedings between spouses. Thus, we are of

the considered view that Section 27 of the Act is not

applicable to the facts of the present case.

13. The Family Court rightly invoking the

provisions of 7(1) and the Explanation (c) of the Family

Courts Act, 1984, after extensively considering the

material evidence on record, has arrived at a decision

that the respondent is entitled to 50% of the subject

property and accordingly directed the appellant to pay

50% of the amount after alienating the

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subject property. In this regard, it is apt to refer to the

material evidence available on record.

14. The following admissions made by the

appellant who was examined as RW.1 are significant to

be taken into consideration:

After the respondent secured the job, he closed

down the Computer System Institution as his wife

requested him to accompany her at the places of work;

in all the places of her transfer, he had accompanied

her and stayed along with his wife; he cannot produce

any records in support of his statements that during his

stay at Udupi, he was doing job work of computer

sitting in the house only; on 16.4.2009, he purchased

9.28 acres of subject land for a sale consideration of

Rs.12.70 lakhs and a sum of Rs.6,74,000/- was paid by

the mother of the respondent by transferring the said

amount to his account, however, he has stated that

Rs.2,93,051/- was returned to her; balance amount

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has to be paid to her; he has denied that the respondent

had availed a loan of Rs.1,50,000/- from Kundapura

and has given the same to him; though he has denied

that the amount of Rs.1,28,000/- drawn by the

respondent from Karnataka Bank Branch at Bantwala

on 23.1.2009 and Rs.50,000/- from SBI, Puttur, was

handed over to him, he has admitted that all these

amounts were credited to his account in Karnataka

Bank at Panamboor and also at Karkala from where a

DD was drawn for the purpose of payment of sale

consideration to the vendor.

15. Ex.P17 is the agreement dated 20.1.2012

between the parties herein, wherein both the parties

had agreed as under;

That the subject property was purchased jointly

by the appellant and respondent from their vendors and

the said property is registered in the name of the

appellant; however the respondent is also having an

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equal share in the subject property; the first

party/appellant shall manage the subject property and

both the parties shall invest for the development of the

subject property and are entitled equally for the

usufructs; on getting good price for the subject

property, the property would be alienated and both the

parties are equally entitled in the said sale proceeds;

and on the sale of the subject property, the appellant

shall pay Rs.3,35,000/- and the respondent shall pay

Rs.3,40,000/- to the mother of the respondent.

16. This agreement, Ex.P17 was signed by both

the parties in the presence of the witnesses. The

appellant has admitted the execution of the said

agreement and his elder brother H.N.Parshwanath was

one of the witnesses, who has subscribed his signature.

The defence taken with respect to Ex.P17 is that the

said document got executed by exercising force on him

but remains unproved.

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17. As regards Ex.R22, notice dated 29.12.2014

issued by the Assistant Conservator of Forests, Sagar,

the evidence of the appellant - RW.1 reads as under;

"it is true that the said notice issued pertains to

Sy.No.428, it is a big survey no., consists of 500 acres

and in the very same survey number after phodi

Sy.No.513 was purchased by him. It is false to suggest

that Sy.No.513 has no nexus with Sy.No.428. After the

receipt of notice I visited the office of Assistant

Conservator of Forest wherein my statement was

recorded. I can produce the records to evidence the

same. It is false to suggest that the said notice was

received by me in respect of forest land I encroached

and not pertains to Sy.No.513."

18. No notice relating to Sy.No.513, subject

land, has been issued by the Department of Forests.

The property in question acquired through sale deed,

Ex.P8, cannot be correlated to infer the same as

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encroached portion as alleged in the notice at Ex.R22.

Hence, the proceedings pending before the Department

of Forest cannot come to the aid of the appellant to deny

the share of the respondent as agreed in the agreement

- Ex.P17.

19. The evidence on record discloses that the

father of the respondent was a Government servant and

as such her mother along with the respondent have

invested for acquiring the subject land. The respondent

being a Government servant had sufficient income to

contribute for acquiring the subject property. On the

other hand, no cogent evidence is placed by the

appellant to substantiate his income to acquire the

subject property individually. As could be seen from the

record, it is the dispute between the parties to the

marriage relating to the subject property and whatever

money contributed by the mother of the respondent, it

is in the interest of the daughter. The property being

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developed after purchase, with the coconut and areca

nut trees existing, obviously fetches a high value.

Having considered these aspects, the Family Court

proceeded to decide the entitlement of the respondent to

get compensation by way of damages for the severance

of the marital status to an extent of 50% if the property

is sold by them invoking Section 7(1) and the

Explanation (c) of the Family Courts Act, 1984. In our

considered view, in the background of the evidence of

RW.1 - appellant along with Ex.P17 vis-à-vis the

provisions of Section 7(1) and the Explanation (c), it

cannot be held that the Family Court had no

jurisdiction to decide the issue of property relating to

the parties to the marriage. The arguments of the

learned counsel for the appellant that utmost the

appellant is liable to return the balance amount to the

respondent's mother with interest and not 50% to the

respondent cannot be countenanced since we are not

dealing with the suit for recovery of amount filed by the

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mother of the respondent. At the cost of repetition, we

observe that whatever the money paid by the

respondent's mother to purchase the subject property in

the name of the appellant is in the interest of her

daughter - respondent. On appreciation of evidence, we

find no infirmity or illegality in the judgment and decree

impugned.

20. At this juncture, learned Senior counsel for

the respondent submitted that the appellant has raised

encumbrance on the subject land subsequent to

passing of the judgment and decree by the Family Court

and is not sharing the usufructs of the subject property.

No definite period being fixed by the Family Court for

availing her entitlement, sought for a direction so as to

enable the respondent to enjoy the benefits of the

subject property. It is further submitted that

uncertainty of the alienation of the subject property

would deprive the rights to which she is entitled to.

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21. There is no challenge to the order of the

Family Court insofar as the dissolution of marriage is

concerned. In the circumstances, we deem it

appropriate to direct the respondent not to create any

encumbrance on the subject land and the respondent is

permitted to enjoy equal share from the usufructs of the

subject property.

22. Hence, we pass the following;

ORDER

i. Appeal is dismissed.

ii. The order of the Family Court impugned

herein dated 15.2.2016 passed in M.C.No.5/2015 is confirmed.

iii. In the circumstances, it is needless to

observe that the encumbrance, if any, created with

the subject lands shall be adjusted towards the

share of the appellant and no further

encumbrance shall be created without the permission of the Court.

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iv. It is made clear that both the parties are

entitled to enjoy the benefits or the usufructs of

the property in question till the same is alienated.

In view of the dismissal of the main appeal,

pending IAs do not survive for consideration and are

accordingly disposed of.

SD/-

JUDGE

SD/-

JUDGE

nd