Sri S K Subbramannya vs Sri S K Shamaraju
2023 Latest Caselaw 7263 Kant

                             1         RFA NO. 1689/2013



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF OCTOBER, 2023

                        PRESENT

         THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                            AND
           THE HON'BLE MR. JUSTICE C.M.JOSHI

    REGULAR FIRST APPEAL NO. 1689/2013 (PAR)

BETWEEN:
SRI S.K SUBBRAMANNYA,
S/O LATE ADIKRISHNAIAH SETTY,
SINCE DEAD BY HIS LRS.

1. SMT. KRISHNAKUMARI,
   W/O LATE S.K.SUBRAMANYAM,
   AGED ABOUT 60 YEARS.
2. SMT. SANTHOSHI.S,
   D/O LATE S.K. SUBRAMANYAM,
   AGED ABOUT 32 YEARS.
3. MISS NITHYA.S,
   D/O LATE S.K.SUBRAMANYAM,
   AGED ABOUT 30 YEARS.
4. MISS ASHWITHA.S,
   D/O LATE S.K.SUBRAMANYAM,
   AGED ABOUT 23 YEARS.

ALL ARE R/AT:
NO. 1214, 26TH MAIN ROAD,
9TH BLOCK, JAYANAGAR,
BENGALURU - 560 041.

                                          ...APPELLANTS

(BY SRI ABHINAV.R, ADVOCATE [PH])
                            2           RFA NO. 1689/2013




AND:

1 . SRI S K SHAMARAJU,
    S/O LATE ADIKRISHNAIAH SETTY,
    AGED ABOUT 68 YEARS,
    RESIDING AT NO.1879,
    41ST B CROSS, 18TH C MAIN,
    4TH T-BLOCK, JAYANAGAR,
    BANGALORE-560 041.

2 . SRI S K NAGALAKSHMAMMA,
    D/O LATE ADIKRISHNAIAH SETTY,
    W/O RANGASWAMY,
    AGED ABOUT 52 YEARS,
    RESIDING AT NO.37, 90-5,
    NEW CORPORATION NO.37,
    3RD CROSS, & 4TH CROSS,
    21ST MAIN ROAD,
    2ND STAGE, B.T.M. LAYOUT,
    BANGALORE-560 068.


                                        ...RESPONDENTS

(BY SRI K.P.CHANDRASHEKAR REDDY, ADVOCATE FOR R1 [PH];

SRI C KRISHNE GOWDA, ADVOCATE FOR R2 [PH])

THIS RFA IS FILED U/ORDER 41 RULE 1 R/W SEC 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 14.8.2013 PASSED IN O.S.NO.10614/2006 ON THE FILE OF V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND PERMANENT INJUNCTION.

THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 29.08.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, C.M.JOSHI J., DELIVERED THE FOLLOWING:

3 RFA NO. 1689/2013

JUDGMENT AND ORDER ON I.A. 1/2023 AND I.A. 2/2023

This Regular First Appeal filed by the appellant/

defendant-S.K.Subbramannya under order 41 Rule 1 read

with Section 96 of CPC, is directed against the judgment

and decree dated 14.8.2013 passed in O.S.No.10614/2006

by the learned V Additional City Civil and Sessions Judge,

Bangalore, decreeing the suit of the plaintiffs for partition,

separate possession and permanent injunction.

2. The parties would be referred to as per their

rankings before the trial Court for the sake of convenience.

Initially, the plaintiff No.2 was arrayed as the defendant

No.2 and later she was transposed as plaintiff No.2.

3. The property bearing No.37-90/5, New Corporation

No.37, situated between 3rd 'D' Cross and 3rd 'E' Cross,

21st Main Road, II Stage, BTM Layout, Bangalore, under

division No.35 measuring East to West 120 feet and North

to South 30 feet is the suit schedule property.

4. The case of the plaintiffs as may be found from the

pleadings are as below:

4 RFA NO. 1689/2013

(a) The plaintiffs and the defendant are the sons

and daughter of late Aadikrishnaiah Shetty. The

plaintiffs and the defendant by paying equal amount

jointly purchased the suit schedule property from

one Babureddy under a registered sale deed dated

24-11-1984.

(b) At the time of purchasing, there was a ACC

roofed shed measuring half square and thereafter,

at the request of the second plaintiff, the first

plaintiff and the defendant agreed for her stay in the

suit schedule property and thereafter, it was

renovated and another half square building was

constructed and the entire property was fenced.

(c) The electricity connection was taken in the

name of the plaintiff No.1 and water supply was in

the name of the defendant. They are jointly holding

the suit property and the plaintiffs are entitled for

1/3rd share each in the same.

(d) There was misunderstanding between the

plaintiffs and the defendants. The second plaintiff

filed a suit for partition in OS No.6916/1999 in the 5 RFA NO. 1689/2013

City Civil Court Bengaluru and it came to be

dismissed for non prosecution on 31-10-2001.

(e) Thereafter, several panchayats were held

between the plaintiffs and the defendant along with

other family members but nothing progressed to

effect the partition of the suit schedule property.

(f) In the meanwhile, one L.Narayanappa had

filed a suit for Specific Performance against the

defendant, in O.S.No. 9450/2004 with respect to the

suit schedule property against the defendant.

Though the plaintiffs filed an application to implead

themselves in the said suit, it came to be dismissed.

(g) The plaintiffs demanded their legitimate share

in the suit schedule property. But the defendant

refused to effect partition claiming his independent

right over the suit property in the presence of the

panchayatdars on 15-11-2006 and the efforts made

by the plaintiffs to take their share in the suit

schedule property went in vain.

(h) The defendant without partitioning the suit

schedule property is making hasty attempts to 6 RFA NO. 1689/2013

dispose off the same by selling to third parties to

deprive the rights of the plaintiffs and therefore,

there was cause of action on 15-11-2006 and as

such, the plaintiffs are entitled for 1/3rd share each

in the suit schedule property by metes and bounds

and defendant be restrained by permanent injunction

from interfering in the share of the plaintiffs.

5. The defendant appeared and filed his written

statement denying plaint averments concerning the joint

possession, joint purchasing of the property by paying

equal contribution, equal share claimed by the plaintiffs,

cause of action and the construction of the building in the

suit property and fencing of the same by the plaintiffs.

However, the defendant admitted the relationship between

the parties. The following are the contentions of the

defendant;

(a) The suit schedule property was purchased by

the defendant out of his own earnings from his

salary and the entire consideration was paid by the

defendant alone. The name of the plaintiffs was 7 RFA NO. 1689/2013

included in the sale deed out of great love and

affection towards them.

(b) The defendant admitted that the plaintiff No.2

had filed OS No.6916/1999 for partition and that it

was dismissed on 31-10-2001 for non-prosecution.

However, it is contended that the differences

between the plaintiffs and the defendants arose in

the year 1993 itself and therefore, the suit brought

by the plaintiffs herein for the same relief is hit by

the principles of res judicata under Section 11 of

CPC.

(c) The plaintiffs have filed many suits in respect

of the property bearing No.1214 at Jayanagar 9th

Block, disputing the title and ownership since from

the year 1993 and the OS No.9826/1998 being one

among them came to be dismissed on 15-11-2005

and in order to take revenge against the dismissal,

the present suit had been filed by plaintiff No.1

initially and therefore, the suit is for malafide

intentions.

8 RFA NO. 1689/2013

(d) The defendant admitted that L Narayanappa

had filed the suit against him for specific

performance in OS No.9450/2004 but denied that he

had executed any agreement of sale in favour of L

Narayanappa. He also admitted that plaintiffs had

made an effort to implead themselves in the said

suit, but such application came to be dismissed.

(e) The defendant joined police department as a

CRPF constable in the year 1980 and he was a

bachelor. Therefore, he had saved the income from

his salary till 1984 and he paid such savings towards

the sale consideration in respect of the suit schedule

property on 24-11-1984. Later when the District

Registrar issued notice for undervaluation, the

defendant paid such amount on 12-4-1990 and

regularized the sale deed. This shows that the

defendant alone had contributed towards the sale

consideration amount to purchase the suit schedule

property.

(f) The plaintiff No.2 was married and living with

her husband and the plaintiff No.1 was living 9 RFA NO. 1689/2013

separately from the defendant and their relationship

was good at that time. Therefore, out of love and

affection, the names of the plaintiffs were also

incorporated as purchasers in the sale deed.

(g) At the time of execution of sale deed on

24-11-1984, none of the plaintiffs were present

before the registering authority and the entire sale

consideration was contributed by the defendant

alone.

(h) There was no partition in respect of the

properties inherited by the plaintiffs, defendant and

other brother S.K.Satyanarayana. The plaintiffs

having contended that the suit schedule property

was purchased when the plaintiffs and defendant

were in the joint family, those properties inherited by

the plaintiffs and the defendants and said

Satyanarayana should also have been brought into

the suit and Satyanarayana should have been made

a party to the suit. Therefore, the suit for partial

partition is not maintainable.

10 RFA NO. 1689/2013

(i) Since the plaintiffs admitted that they are not

in possession of the suit schedule property, the

plaintiffs were liable to pay the Court fee on

advalorem basis and as such, the court fee paid is

not correct.

(j) The suit should have been filed within 12 years

from the date of demand of partition as

contemplated under Section 112 of Limitation Act,

since the property was purchased in the year 1984

and the plaintiff No.2 knew that there was

misunderstanding in the year 1993, the present suit

filed in the year 2006 is barred by time.

6. On the basis of the above pleadings, the trial Court

has framed the following issues:

1. Whether the plaintiff proves that the suit schedule property is jointly purchased by the plaintiff and the defendants?

2. Whether the suit is properly valued and court fee paid is proper and correct ?

3. Whether the suit is barred by limitation?

4. Whether plaintiff is entitled for reliefs claimed in the suit ?

                                  11          RFA NO. 1689/2013



     5. What order or decree ?

7. Before the trial Court, the plaintiff Nos.1 and 2 were

examined as PWs-1 and 2 and Exs.P1 to P6 were marked.

The defendant examined himself as DW1 and Exs.D1 to 8

were marked.

8. After hearing the arguments of both the sides, the

trial Court answered issue Nos. 1 and 2 in the affirmative,

issue No.4 partly in the affirmative, issue No.3 in the

negative and decreed the suit holding that the plaintiffs are

entitled for 1/3rd share each in the suit schedule property.

9. Being aggrieved by the said judgment and decree,

the defendant has approached this Court in appeal.

10. On issuance of notice, the respondents/plaintiffs

appeared through their counsel. On admitting the appeal,

the trial Court records have been secured.

11. During the pendency of the appeal, the

appellant/defendant died and his legal representatives are

brought on record.

12 RFA NO. 1689/2013

12. During the pendency of this appeal, the appellants

have filed two applications (IA Nos.1/2023 and 2/2023)

under order 41 Rule 27 CPC seeking to produce additional

evidence.

13. The affidavit filed in support of the application in

IA No.1/2023 dated 1-7-2023 by appellant No.2-

Smt.Santhoshi S., daughter of the defendant, state that

during the pendency of the suit as well as the appeal, the

original defendant was attending to the case till his death

on 24-5-2021. During renovation of the house, she came

across certain documents pertaining to the employment of

the defendant and in respect of the payment of the deficit

stamp duty concerning the undervaluation of the sale deed.

When she discussed the same before her counsel, it was

informed to her that those documents were essential for the

purpose of this appeal. Therefore, on the advise, the

application came to be filed stating that the documents

produced are of vital importance for the just and proper

adjudication of the case and therefore, these documents 13 RFA NO. 1689/2013

concerning the employment, wages, promotion of the

defendant in CRPF and the receipts and other documents

relating to the payment of the deficit stamp duty towards

the sale deed and the copy of the deposition of the plaintiff

in OS No.1193/2012 may be permitted to be produced.

14. In the affidavit filed in support the application in

IA No.2/2023 dated 21-8-2023, it is stated that during the

pendency of the suit, the defendant had filed IA No.9 to

amplify their contentions, but it was rejected by the trial

Court. It is stated that the sale consideration for the

purchase of the property was paid exclusively by the

defendant and prior to the sale deed the defendant alone

had paid a sum of Rs.15,000/- as advance payment in cash

to the vendor Babureddy and the receipt in respect of such

payment was handed over to their counsel but it was not

produced in the Court at relevant point of time. When they

changed their counsel and the entire file was handed over

to their new counsel, the said receipt was found in the file

and therefore, the appellants want to produce the same as 14 RFA NO. 1689/2013

it is of pivotal importance for the just decision in the case.

If the application is not allowed, there would be irreparable

loss and injury to the appellants.

15. Submissions of the learned counsel for the

appellants:

(a) The trial Court has committed error in holding that

the sale deed dated 24-11-1984 which stands in the name

of the plaintiffs and the defendant is more than 30 years old

and therefore, the genuinity of the document can be

inferred and thereby the plaintiffs are entitled for the share

in the suit property. Since the original of the sale deed was

not produced, such an inference could not have been drawn

by the trial court.

(b) There is absolutely no mention in the sale deed

that the plaintiffs and the defendant purchased the property

by contributing the equal consideration amount. There is no

averment in the plaint about the equal contribution of the

consideration amount and therefore, such an inference by

the trial Court was not warranted.

15 RFA NO. 1689/2013

(c) Issue No.1 was sought to be recasted by filing IA

No.6 before the trial Court and the said application was not

at all considered by the trial Court. Issue No.1 does not

specify regarding the contributions made by the plaintiffs.

Even the application filed by the defendant was not

considered by it. Since there was no specific issue as to

what is the contribution by the plaintiffs towards the sale

consideration amount, the trial Court was misdirected in

considering issue No.1 which was vague.

(d) He further submitted that the trial Court has not

considered the admissions of PWs 1 and 2 (plaintiffs 1 and

2) in their cross-examination with regard to their

contribution to purchase the suit schedule property. Both of

them admitted that they were not present at the time of

the execution of the sale deed and the sale deed was

registered in the name of the defendant and that the

plaintiffs have not paid any amount to the vendor. Despite

such admissions of PWs 1 and 2, the trial Court held that 16 RFA NO. 1689/2013

the plaintiffs have also contributed consideration amount

and the said finding is perverse.

(e) PWs 1 and 2 admitted that there are other joint

family properties. Therefore, the present suit for partial

partition could not have been entertained by the trial Court.

The Plaintiffs ought to have filed a suit for declaration in

terms of Section 31 of the Specific Relief Act, within three

years from the date on which the right to sue accrued in

terms of Article 113 of the Limitation Act. The suit being

filed after 22 years, the same is barred by limitation.

(f) Section 45 of the Transfer of Property Act,

envisaged the proportion in which the joint purchasers are

entitled for share. When the plaintiffs were never present

before the Sub-Registrar, at the time of registration and

execution of sale deed and when there was no evidence to

show that they have also contributed for the sale

consideration amount, the plaintiffs were not entitled for

the division in the suit schedule property.

17 RFA NO. 1689/2013

(g) The plaintiffs have not adduced any cogent

evidence to establish that they had paid 1/3rd of the sale

consideration amount each, but on the contrary, the

evidence of the defendant shows that he withdrew a sum of

Rs.15,000/- from his bank account as a depicted in Ex.D7-

pass book. He also had the money saved from his salary as

a police constable and therefore, there was positive

evidence on behalf of the appellant/ defendant to show that

he alone had contributed for the sale consideration amount.

The defendant had paid an advance of Rs.15,000/- to the

erstwhile owner Babureddy on 17-11-1984 and the sale

deed was executed on 24-11-1984 and as such, there was

positive evidence to show that the entire contribution was

by the defendant.

(h) The defendant has filed two applications under 41

Rule 27 of CPC to adduce additional evidence to establish

that he alone had contributed towards the sale

consideration amount to the said Babureddy. There was no

pleading by the plaintiffs that the defendant had no source 18 RFA NO. 1689/2013

to pay the consideration of Rs.30,000/- to the vendor and

there was no issue in this regard. Therefore, the

applications filed by the appellants to show that he alone

had contributed for the purchase of the property deserve to

be allowed.

(i) There was no issue as to who contributed how

much towards the sale consideration amount. Therefore,

the additional evidence is very much essential for

pronouncing an effective judgment. The documents now

sought to be produced by the appellants were misplaced

and traced recently and therefore, they deserve to be

allowed. Non-framing of a relevant issue has resulted in a

mistrial.

(j) There is absolutely no evidence to show the

sources of the plaintiffs for contribution towards the

purchase money but on the other hand, the defendant has

produced certain evidence to show that he had the capacity

to pay the consideration amount. The trial Court did not

delve into the paying capacity of the plaintiffs, but only 19 RFA NO. 1689/2013

considered that of the defendant. The effect of the

pleadings and the evidence in the other proceedings was

also not properly appreciated by the trial Court.

On these grounds he submitted that the matter

requires to be remanded to the trial Court with a recasted

issue No.1 to ascertain the contributions by each of the

parties for the purchase of the suit schedule property and

as such, the appeal deserves to be allowed.

In support of his contentions, he placed reliance on

the Judgment in the case of J. Balaji Singh Vs. Diwakar

Cole and others1 regarding the power of the Appellate

Court to remand the matter and on the Judgment in the

case of Vasanthakumary Shanmugavilasam Veedu vs.

Omanakuttan Nair2 rendered by Kerala High Court

regarding the scope of Section 45 of the Transfer of

Property Act.

16. Submissions of counsel appearing for the

plaintiffs/respondents:

(2017) 14 Supreme Court Cases 207

Mat.Appeal No.217/2004 DD 5-6-2009 by Kerala High Court 20 RFA NO. 1689/2013

That the sale deed at Ex.P1 states that the money was

paid in cash, on the contrary DW1 says that it was by

cheque. There is no cheque payment mentioned in Ex.P1

sale deed. There is prima facie inconsistency in the

evidence of the defendant. The defendant was appointed to

the police department in the year 1983 and there was no

material to show that he had capacity to pay Rs.30,000/-

towards the purchase of the suit schedule property. The

withdrawal of sum of Rs.15,000/- from his bank account

was much later to the sale deed at Ex.P1. Simply because

there are certain inconsistencies in the oral testimonies of

PWs 1 and 2, it cannot be held that the averments in Ex.P1

are not believable. Ex.P1 refers to the "purchasers" but not

the "purchaser", thereby indicating that the plaintiffs had

also paid the consideration amount to the vendor. The

applications filed by the appellants under order 41 Rule 27

of CPC are belated one. Appellant was not diligent in

adducing the evidence and sufficient reasons are not

assigned as required under the said Rule. There are 21 RFA NO. 1689/2013

absolutely no reasons assigned by the defendant as to why

he had included the names of the plaintiffs in the sale deed,

if at all he alone had contributed for purchase of the suit

schedule property. The findings of the trial Court are proper

and no interference is required in the matter.

17. On consideration of submission of both the sides

and the records, points that arise for our determination are:

(i) Whether issue No.1 was defective leading to the

mistrial?

(ii) Whether the applications filed under Order 41 Rule 27

of CPC deserve to be allowed?

(iii) Whether the appellants have established that the

defendant alone contributed for purchase of the suit

schedule property and therefore the sale deed at Ex.P1

enures to the benefit of defendant alone?

(iv) Whether the impugned judgment and decree suffers

from perversity or illegality?

18. The plaintiffs contend that the plaintiffs along with

the defendant jointly purchased the property by paying 22 RFA NO. 1689/2013

equal amount with respect to the suit schedule property.

The pleadings in para 3 of the plaint is clear in this regard.

They contend that later there was no good understanding

between the plaintiffs and the defendant and therefore,

plaintiff No.2 has filed a suit for partition in O.S.

No.6196/1999 which came to be dismissed for non-

prosecution on 31-10-2001. Plaintiffs contend that there

were panchayaths in order to resolve the dispute between

the parties, but they went in vain and in the meanwhile,

one L. Narayanappa filed the suit for specific performance in

O.S..No.9450/2004 against the defendant, wherein the

plaintiffs sought impleadment, which came to be rejected.

The plaint contends that plaintiff No.1 is entitled for 1/3rd

share in the suit schedule property.

19. Per contra, the defendant in the written statement

contended that the sale consideration amount was paid

exclusively by him, therefore, he alone has the right, title

and interest in the suit schedule property to the exclusion

of the plaintiffs. It was his contention that the plaintiffs 23 RFA NO. 1689/2013

have never contributed anything for the purchase of the

suit schedule property and therefore, the plaintiffs are not

entitled for the reliefs claimed.

20. The sale deed is silent about the share of

contribution of the purchasers in the consideration amount

paid to the vendor. But it only mentions that the purchasers

have paid Rs.30,000/- to the vendor. Thus, the plaintiffs

solely relied on the sale deed and claimed that they have

contributed equal amount and as such, are entitled for a

decree for partition.

21. In the light of the above contentions the trial

Court framed issue No.1. The issue No.1 casts the burden

on the plaintiffs to prove that the property is jointly

purchased by the plaintiffs and the defendant. When the

defendant contended that he alone had contributed for the

purchase of the property, the question in what proportion

the plaintiffs had contributed for the purchase of the

property is very well covered under the issue No.1. If the

plaintiffs prove that they are the joint purchasers, the 24 RFA NO. 1689/2013

burden shifts to the defendant to prove that he alone had

contributed for the purchase of the property. The fact that

entire sale consideration was paid by the defendant is

asserted by the defendant and as such the burden is on him

to prove it. The provisions of Section 45 of the Transfer of

Property Act, come to the aid of the plaintiffs, when the

document does not specify the proportion of the

contributions made. Therefore, we find no reason to hold

that the issue No.1 was erroneous in any way.

22. The perusal of the trial Court records would show

that IA No.6 filed under order 14 Rule 5 of CPC was not

brought to the notice of the court even at the time of the

argument. It appears that the defendant has not pressed IA

No.6 to be heard. There is absolutely no mention in the

ordersheet of the trial court which show that any

submissions were made by the learned counsel for the

defendant regarding IA No.6. It appears that the defendant

had abandoned the said IA. Even otherwise non-

consideration of the said application has not materially 25 RFA NO. 1689/2013

affected the impugned Judgment. Therefore, the

contentions of the learned counsel for the appellants that

the trial Court had erred in not considering the IA No.6 and

recasting the Issue No.1 do not deserve any merits. A fact

asserted by defendant has to be proved by him. Hence

point No.1 is answered in negative.

23. The learned counsel appearing for the appellants

submits that there is no averment in the plaint as to what

was the contribution made by the plaintiffs towards the sale

consideration of the suit schedule property. On the other

hand, the defendant contends that the entire sale

consideration amount was paid by him. He relied on the

Judgment in the case of Vasanthakumary Vs.

Omankuttan Nair (supra) which deals with the

interpretation of Section 45 of the Transfer of Property Act.

Para 14,15 and 16 of the said judgment read as below:

"14. Section 45 of the Transfer of Property Act imports into Indian law a rule of equity, fairness and justice which was recognized under the English law. When acquisition is in joint names and 26 RFA NO. 1689/2013

consideration has been paid out of a common fund, rights of the joint owners will be proportionate to their share in the common fund. This is what the first part of Section 45 declares.

15. The 2nd part of Section 45 deals with the situation where property is acquired in the joint names of persons and the consideration comes not out of a common fund; but from the separate funds of the acquirers. In such an event, Section 45 declares that their share of rights in such property shall be proportionate to the contribution made by them respectively from their separate funds.

16. The 3rd part of the Section is in the nature of a proviso which declares that where there is absence of evidence as to the interests in the common fund or the share in which consideration has been paid, there must be a presumption that all acquirers have equal rights in the property."

(Emphasis supplied)

24. In the case on hand, the plaintiffs contend that

they contributed equally towards the sale consideration

amount. Para 3 of the plaint in unequivocal terms states

that "it is submitted that the plaintiff along with the

defendants have jointly purchased by paying equal amount

with respect to property bearing No.........." This averment in

the plaint being clear, it cannot be said that there was no

such pleading regarding contribution of the sale 27 RFA NO. 1689/2013

consideration amount. Therefore, when the defendant

contended that he alone had contributed for the purchase of

the property, the onus is on him.

25. The perusal of the affidavit of PW.1 also shows

that in para-4 of his affidavit, he has stated that he along

with his sister and the defendant have jointly purchased

the property by paying equal amounts. He further

reiterates the plaint averments in his affidavit. It is stated

that the request by the plaintiff No.2 to stay in the suit

schedule property was permitted by PW.1 and the

defendant and thereafter, it was renovated. He admits that

the water connection from BWSSB is standing in the name

of the defendant. But the electrical connection stands in his

name. In support of this contention, he has produced the

Electricity Bill and the Water Bill at Exs.P2 and P3.

26. In the cross-examination much was elicited in

respect of his paying capacity. He has stated that in the

year 1974 he was working as Bus conductor and he also

had acquired a property at Jayanagar. He denies that the 28 RFA NO. 1689/2013

defendant Subbramannya was working in a private

Institution at Bengaluru in the year 1974. He also states

that in the year 1981 he purchased another property at

Tilaknagar, but denies that he had obtained Rs.5,000/-,

Rs.2,000/- and Rs.10,000/- from the defendant. The

suggestion that these payments were made by cheque was

also denied. Sofar as suit property is concerned, it is

elicited in the cross-examination that negotiations took

place on 27-11-1984 and the sale price was fixed at

Rs.30,000/- (wrongly typed as Rs.13,000/- in the

deposition). He admits that the document was registered on

24-1-1985. It is pertinent to note that there is no

suggestion to the PW.1 regarding the claim of the

defendant that the negotiation had taken place on

17-11-1984 when the defendant alone allegedly paid

certain advance amount. It is further elicited that he was

also present in the Sub Registrar's office on 24-1-1985

along with plaintiff No.2 and states that he was not the

signatory to the sale deed. Regarding custody of the 29 RFA NO. 1689/2013

original sale deed, he states that earlier the document was

with him and in the year 1990, for the purpose of the

endorsement regarding the payment of deficit stamp duty,

it was taken by the defendant. In the cross-examination, he

categorically states that, he, plaintiff No.2 and defendant

jointly paid an amount of Rs.30,000/- in cash in front of the

Sub Registrar to the seller. It is also elicited in the cross-

examination that when the district Registrar had issued

notice, he had deposited a sum of Rs.3,660/- on 14-6-1990

through the defendant because notice was issued in the

name of the defendant. He denied the suggestion that it

was paid exclusively by the defendant. He admits that one

L. Narayanappa had filed a suit for specific performance in

O.S.No.9450/2004, wherein PW1 had filed an application to

implead and the copy of it is marked as Ex.D4. He also

admits that the plaintiff No.2 had filed O.S.No.6916/1999

and he had not appeared in the same.

27. The testimony of PW.2 who happens to be plaintiff

No.2 shows that she has reiterated her contention and has 30 RFA NO. 1689/2013

sought for partition. She admits that she had filed a suit for

partition in O.S.No.6916/1999 and it was dismissed for non

prosecution on 31-10-2001. In the cross-examination, it is

elicited that at the time of the purchase of the suit property

she was unmarried and she was doing tailoring and tuition

work prior to her marriage in the year 1986. She states that

the family affairs were looked after by PW1 and there was

an agricultural land at Gouribidanur measuring 6 acres. It

appears that, an effort was made by the defendant that

there was joint family income also. It is elicited that since

1984 she is not in talking terms with the defendant

Subbramannya. However, she categorically states that she

jointly purchased the suit schedule property on

24-11-1984. She had given her contribution to PW.1.

Though it is elicited that she had signed on the sale deed,

but in the next sentence she states that she does not

remember whether the signature was taken or LTM was

taken on the sale deed. The tenor of her replies show that

she is dependent upon PW.1 -S.K.Shamaraj. It is elicited 31 RFA NO. 1689/2013

that she had paid a sum of Rs.15,000/- to her brothers as

her contribution to purchase the suit schedule property. She

also admits that in the year 1982 she had received a sum of

Rs.5,000/- from the defendant. She admits that she has no

documents to show her equal contribution for the purchase

of the suit property.

28. The Ex.P1 which is the certified copy of the sale

deed discloses that though the sale deed was executed on

24-11-1984, it was registered on 24-1-1985 before the Sub

Registrar. Evidently, it was the defendant Subbramannya

who presented the same for registration. As noted supra,

the Electricity bill at Ex.P3 stands in the name of PW.1-

Shamaraj and Ex.P2 water supply bill stands in the name of

defendant Subbramannya. Exs.P4 and P5 happen to be the

ordersheet and the written statement of the defendant

Subbramannya in O.S.No.9450/2004. In Ex.P5, the

defendant has stated that the sale deed in respect of the

suit schedule property stands in the name of three persons,

and by saying so, he has denied the alleged agreement of 32 RFA NO. 1689/2013

sale with L. Narayanappa. It is pertinent to note that it was

never suggested by the defendant that it was the exclusive

property of himself.

29. Regarding the paying capacity of the defendant,

the plaintiffs have produced the Ex.P6 and its enclosures

issued by the Public Information Officer of the employer of

the defendant. It discloses that the defendant joined service

as a police constable on 12-1-1983 and his basic pay was

Rs.490/- in the year 1983. These documents show that in

the year 1984 when the suit schedule property was

purchased, the pay of the defendant was not even

Rs.1,000/- per month.

30. The defendant has been examined as DW1 and he

has reiterated the averments in the written statement. He

states that since he had very good respect towards the

plaintiffs their names were mentioned in the sale deed for

the name sake. He denies that PW2 is residing in a portion

of the suit schedule property and that the electricity

connection is in the name of PW1. In para 5 of his affidavit 33 RFA NO. 1689/2013

evidence, he states that negotiations with vendor took place

on 15-11-1984 and he paid a sum of Rs.15,000/- on

17-11-1984 for which a receipt was issued by the vendor

Babureddy. He states that he had encashed a sum of

Rs.15,000/- from his account at Karnataka Bank on

17-11-1984 to pay the same to the vendor. He states that

the remaining sum of Rs.15,000/- was paid by him to

Babureddy by cash on 24-11-1984. He further contends

that it was he, who paid the deficit stamp duty pursuant to

an enquiry regarding undervaluation by the District

Registrar. He categorically states in para 10 of his affidavit

that he joined service as a police constable in the year 1980

which is contrary to the certificate issued by his employer at

Ex.P6. He further states that out of his salary income he

had purchased the suit schedule property in the year 1984.

31. In the cross -examination, it is elicited that he was

paying the property tax to BBMP, but he has not produced

any documents in proof of payment of the tax. He contends

that even the electricity connection is also in his name.

34 RFA NO. 1689/2013

Except the oral testimony there is nothing else which would

rebut the Ex.P3. It is also elicited that he had not obtained

any permission from his higher authority to purchase the

suit schedule property.

32. The defendant has produced the ordersheet, plaint

in O.S.No.6916/1999 at Exs.D1 and D2. The Exs.D4 and D5

are the receipt and the notice issued by the Deputy

Commissioner-cum-District Registrar in the name of the

defendant. Ex.D6 is the endorsement whereby the market

value of the suit schedule property was fixed at

Rs.60,500/-. These aspects show that the notice was

issued in the name of the defendant is not in dispute.

33. Ex.D7 happens to be the pass book of the

Karnataka Bank standing in the name of the defendant. It

is pertinent to note that a sum of Rs.15,000/- was

withdrawn by the defendant on 1-12-1984 (wrongly

observed on 01.02.1983 by trial Court). Obviously, such

withdrawal was subsequent to the execution of the sale

deed dated 24-11-1984. There was no such withdrawal of 35 RFA NO. 1689/2013

the funds to the extent of Rs.15,000/- prior to 1-12-1984.

Therefore, the claim of the defendant that he had

withdrawn a sum of Rs.15,000/- on the date of negotiations

or on the date of the execution of the sale deed does not

get support from Ex.D7. Ex.D7 also discloses that the

balance in his bank account seldom reached a sum of

Rs.15,000/-.

34. Ex.D8 is the counterfoils of the cheque book. It is

relevant to note that though a cheque No.477008 is said to

have been issued on 17-11-1984 for self withdrawal of

Rs.15,000/-, the same does not reflect in the pass book.

Similarly, the withdrawal of Rs.20,000/- on 23-11-1984

under cheque No.477009 also does not reflect in the pass

book. On the contrary, there was no such balance for

withdrawal of Rs.15,000/- and Rs.20,000/- in his account

during November 1984. Thus, it is evident that Ex.D8 is not

truthful in its contents.

36 RFA NO. 1689/2013

35. From the above evidence, it is clear that Exs.D7

and D8 do not show that the defendant had sufficient

amount to the tune of Rs.30,000/- to be paid to the vendor

Babureddy. It is also clear that the bank account of the

defendant does not show that he had sufficient balance to

be paid as on the date of the sale deed i.e. 24-11-1984 as

claimed by him.

36. Under the above circumstances, there is no

evidence to establish that the entire sale consideration

amount was contributed and paid by the defendant alone.

The plaintiffs on their part contended that they had

contributed equal amount and their name appears in the

sale deed as purchasers. The perusal of Ex.P1, the sale

deed discloses that the plaintiff Nos. 1 and 2 and the

defendant are shown as the purchasers. It also shows that

the purchasers had agreed to purchase the schedule

property from the vendor for a sum of Rs.30,000/- and the

amount was paid in cash in the presence of the witnesses.

It is also to be noted that the document refers the vendees 37 RFA NO. 1689/2013

as 'purchasers' but not as 'purchaser'. Evidently, the

witnesses Jayaramareddy and Guttareddy have also signed

the same. Though the document was executed on

24-11-1984 it was presented for registration on 24-1-1985.

It is an admitted fact that the plaintiffs have not signed the

sale deed. It is also evident that it does not bear the

signatures of the defendant as well. His signature appears

only at the time of the presentation before the sub registrar

on 24-1-1985. Therefore, the averments of Ex.P1 also show

that the vendor intended to sell the property to the

plaintiffs and the defendant. He acknowledges that the

consideration was received by him in cash from all the

purchasers. Under these circumstances, it can be concluded

that the plaintiffs and the defendant together purchased the

property and in the absence of any other cogent evidence

to show that the defendant Subbramannya alone

contributed for the consideration amount, the third part of

the provisions of Section 45 of the Transfer of Property Act 38 RFA NO. 1689/2013

as analysed above comes in play and the property has to be

shared by all the purchasers in equal proportions.

37. Coming to the applications filed under order 41

Rule 27 of CPC, the appellants want adduction of additional

evidence on the ground that the trial Court had rejected

their application for amendment of the written statement to

incorporate the pleadings in respect of the payment of an

advance of Rs.15,000/- to the vendor Babureddy and

therefore, the defendant could not produce the receipt

issued by Babureddy. The said receipt is an important

document and therefore, he may be permitted to adduce

further evidence in the matter. It is relevant to note that

the defendant having saddled with the onus to establish

that he alone had contributed for the sale consideration

amount towards the purchase of the suit property, could

have produced such document before the trial court. The

dismissal of the application for amendment of the written

statement had no bearing on the production of the receipt 39 RFA NO. 1689/2013

issued by the vendor Babureddy. Therefore, this argument

is not of much relevance.

38. Rule 27(1)(a) of Order 41 of CPC can be invoked

only if the trial Court had refused to admit the evidence

which ought to have been admitted. Obviously, no effort

was made by the appellants/defendant to produce such

documents before the trial Court.

39. The law regarding the permissibility of adduction

of additional evidence in an appeal is no more res-integra.

The Apex Court in the case of Union of India v. Ibrahim

Uddin3, has succinctly and elaborately dealt the scope of

Order 41 Rule 27 of CPC as below:

"36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal.

However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is

(2012) 8 SCC 148 40 RFA NO. 1689/2013

entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526])

37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. [(1978) 2 SCC 493] )

38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. (Vide Lala Pancham [AIR 1965 SC 1008] .)

39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence 41 RFA NO. 1689/2013

should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava [AIR 1957 SC 912] and S. Rajagopal v. C.M. Armugam [AIR 1969 SC 101] .)

40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.

42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly 42 RFA NO. 1689/2013

exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.

43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.

44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion........

XXX XXX XXX

48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the 43 RFA NO. 1689/2013

applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.

Stage of consideration

49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.

XXX XXX

52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court 44 RFA NO. 1689/2013

reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."

40. In the case on hand, the defendant was not

vigilant in discharging his onus of proving that he alone had

contributed for the purchase of the suit property. The

defendant could have adduced such evidence to rebut the

contention of the plaintiffs. Even though the trial court had

not considered the I.A No 6 to reframe the issue No.1, that

did not absolve the defendant from discharging his onus

that he alone contributed towards the consideration

amount. It is the case of the appellants that they came

across the documents while renovating the house after the

death of the defendant Subbramannya in the year 2021.

Obviously, the defendant could have produced these

documents, if at all they were relevant, at the trial during

his life time. Therefore, the diligence that should have 45 RFA NO. 1689/2013

been exercised by the appellants or the defendant

Subbramannya was not shown. In fact, deceased

Subbramannya was in possession of the document, but he

did not produce it on the ground that his application for

amendment of the written statement was rejected.

Therefore, the ground available under Rule 27(1)(aa) is

also not established by the appellants.

41. The affidavit filed in support of IA No.2/2023

allege that the counsel who represented the defendant had

not produced the receipt issued by Babureddy on

17-11-1984 despite it was given to him. That cannot be a

reason which warrants invocation of Order 41 Rule

27(1)(aa) of CPC, for, this court has considered that there

is no evidence that the defendant had such an amount in

his bank account.

42. Sofar as the ground under Rule 27(1)(b) is

concerned, when the benefit of Section 45 Part III is

available, it is not necessary for the Court to hold that such

evidence is essential for pronouncing an effective judgment.

46 RFA NO. 1689/2013

In the absence of any such provisions under Section 45 of

the Transfer of Property Act, the evidence sought to be

produced by the appellants would have become a necessity

of the court. Therefore, the IAs filed by the appellants are

bereft of merits. Consequently they are liable to be

dismissed.

43. Coming to the other contentions, the contention

regarding limitation raised by the learned counsel appearing

for the appellants, it is evident that the plaintiff No.2 is in

possession and enjoyment of the property. Moreover, the

electricity connection to the suit schedule property is in the

name of the plaintiff No.1 which clearly establish that the

possession was not affected. Moreover, the question of

limitation had been conclusively decided by this Court when

the application filed by the defendant under Order VII Rule

11 of CPC was decided in W.P.No.5309/2009 dated

30-3-2010. The appellants cannot raise the said question

again in this appeal.

47 RFA NO. 1689/2013

44. Another contention raised by appellants is that,

this suit is not maintainable as other joint family properties

and the another brother of plaintiffs and defendant are not

included. The claim of the plaintiffs being on the sole

ground that the suit property was acquired jointly,

unconnected to joint family, it is not necessary that joint

family property and other members of joint family are also

to be included. The rights of the parties is based on joint

acquisition, but not by way of coparcenery inheritance.

Hence, this argument is not sustainable.

45. The plea of res judicata was not urged at the time

of the arguments. Anyhow, the earlier suit filed by plaintiff

No.2 was dismissed for non prosecution and therefore, the

principles of res-judicata is not applicable.

46. The trial Court in the impugned judgment has

considered the questions relating to the evidence adduced

by the defendant that he alone had contributed for the sale

consideration of the suit schedule property. It had dealt

with the evidence adduced by the defendant and relied on 48 RFA NO. 1689/2013

the certified copy of the sale deed produced at Ex.P1.

Though it erred in holding that the presumption available

under Section 90 of Evidence Act can be applied to Ex.P1,

the conclusions reached by the trial Court cannot be said to

be vitiated on that count. The fact that the name of the

plaintiffs and the defendant were shown to be the

purchasers in Ex.P1 was an admitted fact. The trial Court

has also considered the contents of para 5 of the written

statement of the defendant in OS No.9450/2004 in the right

perspective. However, it held that the pass book produced

at Ex.D7 showed the transaction of Rs.15,000/- on

1-12-1983, which in fact was 1-12-1984. Despite these

errors, the conclusion reached by the trial Court that the

suit deserves to be decreed is correct. Thus, this court also

comes to the conclusion that the suit deserved to be

decreed though on a different grounds as discussed by us

supra. Under these circumstances, the appeal must fail and

hence, the following:

                              49           RFA NO. 1689/2013




                           ORDER

The appeal and I.A.1/2023 and I.A.2/2023 are hereby

dismissed.

The judgment and decree passed by the trial court in

OS.No.10614/2006 dated 14-8-2013 is hereby confirmed.

Costs made easy.

Sd/-

JUDGE

Sd/-

JUDGE

tsn*