Sri M Arun Kumar Belliappa vs Smt Asha Sudharshan
2022 Latest Caselaw 5059 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF MARCH, 2022

                           BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.F.A.NO.1130 OF 2015 (PAR)


BETWEEN:

SRI M. ARUN KUMAR BELLIAPPA
@ M.A.K BELLIAPA
SINCE DECEASED REPTD. BY LRs

A) SMT.VEENA MUTHANNA,
AGED 60 YEARS,
W/O LATE M.A.K.BELLIAPPA

B) MS.LILLY DECHAMMA,
AGED 30 YEARS,
D/O LATE M.A.K.BELLIAPPA

C) MR.PRASHANTH PONNAPPA,
AGED 28 YEARS,
S/O LATE M.A.K.BELLIAPPA

ALL OF THEM PRESENTLY R/AT NO.66,
1ST MAIN, 1ST CROSS, DOMLUR LAYOUT,
DOMLUR, BANGALORE-560071

                                              ...APPELLANTS

(BY SRI NARAYANA K, ADVOCATE)
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AND:

SMT. ASHA SUDHARSHAN
W/O MR. SUDARSHAN
R/AT NO.1458, 17TH C MAIN,
39TH CROSS, H.B.R LAYOUT, 5TH BLOCK,
BENGALURU-560 043

                                                 ...RESPONDENT

(BY SRI M.T.NANAIAH, SR.COUNSEL FOR
SRI.PRABHUGOUD.B.TUMBIGI, ADVOCATE FOR R1;
V/O DTD: 09.07.2019 R2 IS DELETED)

     THIS RFA IS FILED UNDER SEC. 96 R/W ORDER XLI OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.02.2015 PASSED
IN O.S NO.4063/2008 ON THE FILE OF XXII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH NO.7), DECREEING THE SUIT
FOR PARTITION AND SEPARATE POSSESSION.

     THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The captioned Regular First Appeal is filed by the

unsuccessful defendant No.1 questioning the judgment and

decree passed in O.S.No.4063/2008.

2. For the sake of brevity, the parties are referred to

as per their rank before the Court below.

3. The facts leading to the case are as under:

The plaintiff filed a suit against her brother seeking relief

of partition and separate possession in the suit schedule

property. The plaintiff contended that her father applied for

allotment of site to the then City Improvement Trust Board. It

is further contended that the Board allotted site No.66 in

favour of her father free from all encumbrances and

attachment after receiving sale consideration. The plaintiff

further contended that the Board executed registered sale

deed in favour of father of plaintiff and original defendant No.1

on 12.02.1971. The plaintiff further contended that from the

date of execution of registered sale deed, her father was in

actual possession and enjoyment over the suit schedule

property along with his wife, daughter and son. It was also

contended that khata pertaining to the suit schedule property

was duly mutated in terms of registered sale deed in the name

of her father in the relevant municipal records.

4. The plaintiff at paragraph 3 of the plaint has

specifically contended that her father has constructed ground

floor and first floor in site No.66 during his lifetime. It is also

contended that it was the desire of her father that ground floor

should go to his son and first floor should be allotted to his

daughter. There is a specific averment made at paragraph 3

of the plaint that ground floor was constructed during 1973

and at that relevant point of time, defendant No.1 was

pursuing his Diploma in Automobile Engineering. It is further

pleaded that first floor was constructed during the year 1981-

82 and the same was let out on rent. The plaintiff has

specifically contended that her father died on 24.08.2003

leaving behind his wife, the present plaintiff and original

defendant No.1. The plaintiff's grievance and the cause of

action to file the present suit was on account of defendant

No.1 unwilling to share the monthly rent. The plaintiff claims

that inspite of demand, defendant No.1 refused to give her

half share in the rent collected from the tenant and therefore,

filed the present suit.

5. The defendant No.1, on receipt of summons,

tendered appearance and filed written statement and stoutly

denied the entire averments made in the plaint. At paragraph

5 of the written statement, defendant No.1 contended that

insofar as ground floor is concerned, his father has

constructed. However, at the time of constructing first floor,

defendant No.1 specifically claimed that he has also

contributed towards construction of first floor. In the

preceding paragraph 3, the defendant No.1 has also taken a

contention that site No.66 was in fact jointly allotted in favour

of father of plaintiff and defendant No.1 and sale deed also

came to be executed jointly in the name of father of plaintiff

and defendant No.1.

6. The defendant No.1 also set up a Will and a specific

contention was taken at paragraph 6 of the written statement

by contending that his father did not die intestate. It was

specifically pleaded in the written statement that his father

has bequeathed suit schedule property under Will dated

21.01.1991 and therefore, sought for dismissal of the suit.

7. Based on rival contentions, the Trial Court

formulated the following issues:

"1) Whether the plaintiff proves that suit property is undivided family property of the plaintiff and defendant No.1?

2) Whether the plaintiff has a share in the suit property?

3) Whether the plaintiff is entitled for mesne profits?

4) Whether defendant No.1 proves that late M.M.Belliappa had executed Will dated 21-7-1991 legally and out of free will and sound mind about suit property?

5) Whether suit is barred by time?

6) Whether court fee paid is insufficient?

7) What Decree or Order?"

8. The plaintiff to substantiate her claim examined

herself as PW.1 and relied on documentary evidence vide

Exs.P-1 to P-11. By way of rebuttal evidence, the original

defendant No.1 examined himself as DW.1 and relied on Will

as per Ex.D-1.

9. The Trial Court having assessed oral and

documentary evidence answered issue Nos.1 to 3 in the

affirmative and recorded a categorical finding that plaintiff has

succeeded in proving that suit schedule property is joint family

property of plaintiff and defendant No.1 and accordingly, held

that plaintiff is entitled for her legitimate share in the suit

schedule property. While dealing with issue No.3, learned

Judge has recorded a finding that defendant No.1 has been

collecting rents and therefore, plaintiff is entitled for mesne

profits.

10. The learned Judge has answered issue No.4 in the

negative and has come to conclusion that defendant No.1 has

failed to prove that his father i.e., M.M.Belliappa bequeathed

the suit schedule property under Will dated 21.07.1991. While

examining the Will, the learned Judge has found that the

stamp paper was purchased on 24.06.2004 whereas father of

defendant No.1 i.e., died on 24.08.2003. The learned Judge

has also examined the signatures found on the alleged

disputed Will along with admitted signatures on the sale deed

executed by the then the City Improvement Board in favour of

the father of plaintiff and defendant No.1. Having compared

the signatures, the learned Judge has found that there is

absolutely no resemblance with admitted signatures of father

of defendant No.1 made on Exs.P-11 and P-12 and one found

at Ex.D-1.

11. The learned Judge has also recorded a finding

against defendant No.1 and has discarded the claim of

defendant No.1 under Ex.D-1-Will on the premise that

defendant No.1 to substantiate his claim under Ex.D-1- Will

has not examined one attesting witness as required under

Section 68 of Indian Evidence Act. On these set of

reasonings, the Trial Court has answered issue No.4 in the

negative and has proceeded to decree the suit granting half

share to the plaintiff in the suit schedule property.

12. Feeling aggrieved by the judgment and decree of

the Trial Court, the legal representatives of original defendant

No.1 who are the widow and children respectively are before

this Court.

13. Learned counsel appearing for the appellants would

vehemently argue and contend before this Court that the

judgment and decree passed by the Court below suffers from

serious infirmities and illegalities and therefore would warrant

interference at the hands of this Court. Taking this Court

through paragraph 2 of the examination-in-chief, he would

submit to this Court that plaintiff has admitted in unequivocal

terms that her father and defendant No.1 jointly applied for

allotment of site. He would submit to this Court that this

statement made in paragraph 2 of the examination-in-chief

would clinch the issue. It is in this background, learned

counsel appearing for defendant No.1 would submit to this

Court that even otherwise having negatived the Will, learned

Judge erred in not taking judicial note of this categorical

admission given in examination-in-chief. He would further

submit to this Court that the material on record coupled with

categorical admissions given in examination-in-chief clearly

indicates that suit schedule property was jointly purchased by

the father of plaintiff and defendant No.1 and therefore, the

plaintiff would be entitled only in the half share of her father.

This relevant aspect is not at all taken into consideration by

the Court below and therefore, would warrant interference at

the hands of this Court.

14. Per contra, learned Senior Counsel appearing for

the plaintiff would, however, counter the arguments

canvassed by the learned counsel for the defendant No.1.

Supporting the reasons and conclusions rendered by the

learned Judge of the Trial Court, he would submit to this Court

that in absence of clinching rebuttal evidence, learned Judge

was justified in answering issue No.4 in the negative. He

would contend that the clinching evidence adduced by the

plaintiff would clearly establish that the site was allotted to her

father exclusively and therefore, in absence of rebuttal

evidence, the Trial Court was justified in granting half share to

the plaintiff in the suit schedule property. He would further

contend that having taken a specific plea that he had

contributed for construction of first floor, it was incumbent on

the part of defendant No.1 to place on record the clinching

evidence indicating that he had contributed for construction of

first floor. Except producing the Will, the defendant has not

produced any documents to substantiate his claim. Therefore,

in absence of clinching rebuttal evidence, the learned Judge

was justified in declining the defence set up by defendant and

consequently was justified in granting half share to the

plaintiff. On these set of defence, he would contend that the

grounds urged in the appeal would not displace the

conclusions and findings recorded by the Trial Court and

therefore, would not warrant any interference at the hands of

this Court.

15. Heard learned counsel for the appellants and

learned counsel for the respondent. Perused the records. I

have given my anxious consideration to the ocular evidence of

the parties. The following points would arise for

consideration:

1) Whether the Trial Court was justified in holding that suit schedule property is joint family property of plaintiff and defendant No.1?

2) Whether the finding recorded by the Court below on issue No.4 warrants interference at the hands of this Court?

Re: Point No.1:

16. The plaintiff's specific case is suit schedule property

was allotted to her father by the then City Improvement

Board. To substantiate the said claim, she has produced the

certified copy of the sale deed as per Ex.P-3. On perusal of

Ex.P-3, this Court would find that Bangalore City Improvement

Trust Board has executed registered sale deed in favour of

father of plaintiff and therefore, the contention of defendant

No.1 it was jointly allotted and the sale deed was jointly

executed in favour of plaintiff's father and defendant No.1 is

factually incorrect and the same is contrary to sale deed

executed by the Board. What emerges from the recitals in the

sale deed as per Ex.P-3 is that site No.66 was in fact allotted

in favour of father of plaintiff and defendant No.1 i.e., lease

cum sale agreement was executed on 13.11.1967. Therefore,

right was created in favour of father of plaintiff and defendant

No.1 pursuant to lease cum sale agreement which is of the

year 1967. There is absolutely no rebuttal evidence led in by

defendant No.1 to indicate that he was employed and he had

an independent earning and he was in a position to contribute

towards sale consideration. Except bald averments in the

written statement, defendant No.1 has not at all produced any

rebuttal evidence to demonstrate that either he had

contributed towards sale consideration at the time of the

registered sale deed executed by the Bangalore City

Improvement Trust Board nor he has produced any documents

to indicate that he has contributed towards construction of

first floor in the year 1981-82.

17. In absence of rebuttal evidence, the presumption

that the father who was employed in postal department had

self earning and out of his self earning and savings, has not

only purchased the suit schedule property but has

subsequently constructed residential house which is in two

parts i.e., ground floor and first floor has to be accepted.

Therefore, this Court on appreciation of ocular and

documentary evidence is of the view that the plaintiff has

succeeded in proving that suit schedule property was

exclusively allotted to her father and subsequently her father

out of his earnings and savings, has constructed residential

house in the suit schedule property. In absence of rebuttal

evidence, the defence set up by the defendant No.1 alleging

that he had contributed towards sale consideration as well as

construction of first floor cannot be acceded to. Accordingly,

point No.1 is answered in the affirmative.

Re: Point No.2:

18. Insofar as Will is concerned, this Court on

meticulous examination of the said Will would find that the

signatures on the Will would not resemble with the admitted

signatures found at Exs.P-11 and P-12. One more disturbing

factor which has to be taken note of is that Will is of the year

1991 but stamp papers are found to be purchased in 2004. It

is not in dispute that father of plaintiff and defendant No.1

died on 24.08.2003. If the testator has died in 2003, it would

be quite unnatural to presume that he could have purchased

the stamp papers in 2004. Therefore, it is beyond doubt that

this Will set up by defendant No.1 is a concocted document.

This suspicion in regard to concoction further stands

strengthened as attesting witness has not come forward to

depose in favour of the legatee. Even otherwise, there is no

compliance of mandatory requirements under Section 68 of

Indian Evidence Act, 1872. Therefore, claim of defendant

No.1 cannot be examined on the ground that the legatee is

not examined. Since attesting witness is not examined, there

is also no compliance of Section 63(c) of Indian Succession

Act, 1925. Therefore, point No.2 has to be answered in the

negative.

19. For the reasons stated supra, I am of the view that

the findings recorded by the learned Judge on issue Nos.1 to 5

would not warrant any interference at the hands of this Court.

The judgment and decree of the Trial Court is based on legal

evidence led in by the plaintiff and in absence of rebuttal

evidence. The Trial Court was justified in answering issue

No.1 in the affirmative thereby holding that the suit schedule

property is joint family property of plaintiff and defendant

No.1. Since defendant No.1 has not chosen to examine the

attesting witness in terms of Section 68 of Indian Evidence Act

read with Section 63(c) of Indian Succession Act, 1925, the

finding on issue No.4 is in accordance with law and would not

warrant any interference at the hands of this Court.

20. For the foregoing reasons, the appeal is devoid of

merits and accordingly stands dismissed.

The pending interlocutory applications, if any, do not

survive for consideration and stand disposed of accordingly.

Sd/-

JUDGE

CA