Karnataka High Court
Smt R Subbammal vs Smt K Subbalakshmi on 23 February, 2024
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RFA No. 2522 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 2522 OF 2007 (DEC)
BETWEEN:
1. SMT. R SUBBAMMAL,
AGED ABOUT 77 YEARS,
W/O LATE RAMACHARI.
DIED ON 20.01.2008.
2. SRI R ANNIYAPPA,
AGED ABOUT 45 YEARS,
S/O LATE RAMACHARI.
3. SRI R DORAI,
AGED ABOUT 42 YEARS,
S/O LATE RAMACHARI.
ALL ARE R/AT NO.7/128,
NEW NO.8/1, 13TH CROSS,
10TH 'C' CROSS, K.B.TEMPLE STREET,
6TH BLOCK, RAJAJINAGAR,
Digitally signed BANGALORE-560 010.
by NANDINI R ...APPELLANTS
Location: High (BY SRI Y K NARAYANA SHARMA & SRI Y.V PRAKASH,
Court of ADVOCATES)
Karnataka
AND:
1. SMT. K SUBBALAKSHMI,
AGED ABOUT 55 YEARS,
W/O LATE R.S MANI,
2. SRI M MARIYAPPAN,
AGED ABOUT 30 YEARS,
S/O LATE R.S MANI.
3. SRI M MAHESH KUMAR,
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RFA No. 2522 of 2007
AGED ABOUT 27 YEARS,
S/O LATE R.S MANI.
1 TO 3 ARE R/AT NO.8/1,
13TH CROSS, 10TH 'C' MAIN,
K.B.TEMPLE STREET, 6TH BLOCK,
RAJAJINAGAR, BANGALORE-560 010.
4. SRI SHANKAR SUBRAMANIAN,
MAJOR.
5. SRI NARAYANA,
MAJOR.
6. SRI B S RAM,
MAJOR.
7. SRI NANJUNDASWAMY,
MAJOR.
8. SMT. TULASI,
MAJOR.
(4) TO (8) R/AT DIFFERENT PORTIONS
OF PROPERTY NO.8/1, 13TH CROSS,
10TH 'C' MAIN, K.B.TEMPLE STREET,
6TH BLOCK, RAJAJINAGAR,
BANGALORE-560 010.
...RESPONDENTS
(SERVICE OF NOTICE TO R1 TO 3 THROUGH PAPER
PUBLICATION IS HELD SUFFICIENT V/O DATED 10.10.2023;
R4 TO 8 ARE SERVED)
THIS RFA IS FILED U/S.96 R/W O XLI R 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 22.9.2007
PASSED IN O.S.NO.8294/2002 ON THE FILE OF THE XVII
ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-16), DISMISSING
THE SUIT FOR DECLARATION AND INJUNCTION AND FOR
POSSESSION IN COUNTER CLAIM.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 2522 of 2007
JUDGMENT
Being aggrieved by the judgment and decree dated
22.09.2007 passed in O.S.No.8294/2002 on the file of the
learned XVII Additional City Civil Judge, Bangalore (CCH-
16), dismissing the suit for declaration and injunction, the
plaintiffs have filed this appeal
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
3. Brief facts of the case of the plaintiffs are as
below:
Plaintiff No.1 is mother of plaintiff Nos.2 and 3.
Defendant No.1 is the wife of R.S.Mani, who is another son
of plaintiff No.1. Defendant Nos. 2 and 3 are the sons of
defendant No.1 and R.S.Mani. Plaintiff No.1 Subbammal is
the absolute owner of the suit schedule 'A' property, which
is a site with structure facing towards North measuring 30
ft x 40 ft.+ 42 ft., Schedule 'B', 'C' and 'D' properties are
part and portions of schedule 'A' property.
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4. The plaintiffs contended that the suit schedule
'A' property was purchased by plaintiff No.1 in the year
1972 and she constructed a building over the same.
Defendant Nos. 1 to 3 are residing in schedule 'D'
property which is on the southern side of schedule 'A'
property. Defendant Nos. 4 to 8 were the tenants in
occupation of the portions of schedule 'A' property. The
plaintiffs contended that plaintiff No.1 had gifted the
schedule 'B' and 'C' properties which are on the western
and eastern side of schedule 'A' property to plaintiff No.2
and plaintiff No.3 under two registered Gift Deeds dated
26-6-2002 and she retained the schedule 'D' property for
herself. The plaintiffs contended that a few days prior to
filing of the suit, defendant Nos. 2 and 3 made efforts to
change katha of the properties into their names based on
a Sale Deed alleged to have been executed by defendant
No.1 in favour of defendant Nos. 2 and 3. On enquiry, the
plaintiffs came to know that defendant No.1 representing
that he is a Power of Attorney Holder of plaintiff No.1
dated 07-07-1984, has executed sale deed in favour of
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defendant Nos. 2 and 3 on 10-10-2001 even though
plaintiff No.1 had not executed any such Power of
Attorney. It was alleged that the said power of attorney
dated 07-07-1984 is a forged and fabricated document.
Therefore, the plaintiffs contended that defendant Nos.1 to
3 do not have any right, title or interest over the suit
schedule properties. Hence, they prayed for a declaration
that there is no valid Power of Attorney by plaintiff No.1 in
favour of defendant No.1 and consequently, to declare
that the sale deed dated 10-10-2001 executed by
defendant No. 1 in favour of defendant Nos. 2 and 3 is not
binding on the plaintiffs. Consequentially, they also sought
for injunction to restrain defendant Nos. 1 to 3 from
interfering in possession and enjoyment of the suit
schedule 'A' to 'D' properties.
5. After service of summons, the defendants
appeared before the trial Court through their counsel and
defendant Nos. 1 to 3 filed their written statement denying
the plaint averments. They contended that plaintiff No.1
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Subbammal is an illiterate and had no source of income.
The husband of defendant No.1, R.S. Mani, was a
Carpenter by Profession and he contributed money to
purchase the site in the name of plaintiff No.1. Plaintiff
Nos. 2 and 3 were not residing with plaintiff No.1. It was
contended that the said R.S. Mani borrowed money and
constructed residential building in the year 1981-1982. It
was contended that the loan borrowed by plaintiff No.1
and R.S. Mani accumulated and therefore, plaintiff No.1
was constrained to sell the suit schedule property to one
N. Venkatesh under a registered Sale Seed dated
31-5-1982. In turn, the said N. Venkatesh has executed
an agreement agreeing to re-convey the suit schedule
property in favour of plaintiff No.1 provided the entire loan
amount was paid. Accordingly, a Reconveyance
Agreement was executed on 19-09-1983.
6. It was alleged that the plaintiffs could not
discharge the loan and therefore, at the request of the
plaintiffs, defendant No.1 discharged the loan by
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borrowing money from her parents. Under the above
circumstances, in order to retain the property, plaintiff
No.1 has executed the General Power of Attorney in favour
of defendant No.1 on 07-07-1984. Therefore, the plaintiffs
are estopped from contending that plaintiff No.1 had not
executed any General Power of Attorney. It was defendant
No.1 who was looking after the property and collecting
rents from the tenants and in order to discharge the debts
borrowed from her parents, defendant No.1 has sold the
property in favour of defendant Nos. 2 and 3 under a
registered Sale Deed dated 10-10-2001. Hence, the
plaintiffs have no right in whatsoever manner over the suit
schedule properties and they were never in possession of
any portion of the suit schedule properties. In October,
2002, at the request of plaintiff Nos. 2 and 3, the
defendants have permitted the occupation of portion of the
suit schedule property by the plaintiffs. Thus, contending
that plaintiff Nos. 2 and 3 are in permissive possession
and occupation of a portion of the property, the
defendants have sought for dismissal of the suit. They
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claimed that the plaintiffs are liable to be evicted from the
suit schedule property and as such, they made a counter
claim for eviction of the plaintiffs.
7. In the rejoinder, the plaintiffs denied that they
were in permissive possession of the suit schedule
property and they are liable to be evicted. They contended
that the entire property was purchased by plaintiff No.1
and for any reason, this Court hold that the Power of
Attorney was executed by plaintiff No.1 in favour of
defendant No.1, then the entire property has to be
considered as a joint family property and therefore, the
same has to be divided amongst the plaintiff and
defendant Nos. 1 to 3 in the proportion of their respective
shares.
8. On the basis of the above pleadings, the trial
Court framed the issues and additional issues. Plaintiff
Nos. 1 and 2 are examined as PWs.1 and defendant No.2
was examined as DW1 and a witness was examined as
DW2 and Exhibits D1 to D19 were marked in evidence and
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after hearing both the sides, the trial Court has answered
issues framed as below:
Sl. Issues Findings
No.
1. Whether the plaintiffs proves that the In the
Power of Attorney dated 7.7.1984 affirmative
alleged to have been executed by
plaintiff No.1 in favour of defendant
No.1 is null and void?
2. Whether the defendant Nos.1 to 3 In the negative
proves that Power of Attorney dated
7.7.1984 executed by plaintiff No.1 in
favour of defendant No.1 is valid?
3. Whether the defendant Nos. 1 to 3 In the negative
proves that there is a valid Sale Deed
dated 10.10.2001 executed by
defendant No.1 in favour of defendant
Nos.2 and 3?
4. Whether the plaintiffs prove that the In the
Sale Deed dated 10.10.2001 executed affirmative
by defendant No.1 in favour of
defendant Nos.2 ad 3 is not binding
on the plaintiffs?
5. Whether the defendant Nos. 1 to 3 In the
proves that plaintiff No.1 had no title affirmative
to execute two gift deed dated
26.6.2002 in favour of plaintiff No.2
and in favour of plaintiff No.3 are not
valid?
6. Whether the plaintiffs prove that the In the negative
two gift deeds dated 26.6.2002
executed by plaintiff No.1 in favour of
plaintiff No.2 and in favour of plaintiff
No.3 are valid?
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7. Whether the defendant No.1 to 3 In the negative
prove that Sri R.S Mani husband of 1st
defendant and father of defendant
Nos. 2 and 3 purchased vacant site in
the name of his mother, first plaintiff
and that Sri R.S Manu constructed
residential building over the site by
availing loan?
8. Whether the defendant Nos. 1 to 3 In the
proves that the 1st plaintiff has sold affirmative
the property in favour of Sri N.V
Venkatesh under Sale Deed dated
31.5.1982?
9. Whether the defendant Nos.1 to 3 In the
proves that Sri N Venkatesh executed affirmative
reconvey agreement dated 19.9.1993
in favour of 1st plaintiff as claimed?
10. Whether the defendant Nos. 1 to 3 Partly in the
proves that the 1st defendant affirmative
borrowed money from her parents
and discharged the loan of N
Venkatesh and the 1st plaintiff
executed General Power of Attorney in
favour of 1st defendant on 7.7.1984 as
alleged?
11. Whether the defendant Nos. 1 to 3 In the negative
proves that the suit is not properly
valued and the court fee paid is
insufficient?
12. What Order or Decree? As per final
order below for
the following
Additional Issues
1. Whether the defendants prove that In the
defendant Nos.2 and 3 are the absolute negative
owners of the written statement
Schedule property as claimed in the
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counter claim?
2. Whether the defendants are entitled for In the
possession of the written statement negative
Schedule property?
3. Whether the Court fee paid by the In the
defendants is sufficient? negative
4. Whether the plaintiffs prove that counter In the
claim is barred by limitation? negative
9. The said judgment and decree is challenged by
the plaintiffs in this appeal.
10. On issuance of notice by this Court, despite
service of notice through paper publication respondent
Nos. 1 to 3/defendant Nos. 1 to 3 did not appear before
this Court and engaged the services of any counsel and
notice to respondent Nos.4 to 8 are served.
11. On admitting the appeal, the trial Court records
have been secured and heard the arguments by learned
counsel for appellants.
12. The learned counsel appearing for the
appellants in his arguments submitted that, the trial Court
has committed an error by holding that the suit schedule
property are joint family properties. He submitted that
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the suit schedule property was purchased by plaintiff No.1
under the sale deed Ex.D1 out of her own income. Even
the property was purchased by her husband in her name,
it becomes her property. He submits that, it is settled
principle of law that, if any property has been purchased
by a woman in her name, it becomes her absolute
property. It is submitted that there is no joint family in
respect of the property which is belonging to a woman and
the source for acquisition of the property of a woman
cannot be probed into. In this regard, he relies on the
judgment in the case of Kanakarathnammal Vs.
V.S.Loganatha Mudaliar and another1. He also relies
on the judgment in the case of Smt.Pushpa Devi Vs.
the Commissioner of Income Tax, New Delhi,2
Mangathai Ammal (died) through LRs Vs. Rajeswari3
and in the case of Marabasappa (D) by LRs and others
Vs. Ningappa (D) by LRs and others4.
AIR 1965 SC 271
AIR 1977 sc 2230
AIR 2019 SC 2918
2011 AIR SCW 6059
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13. He further submitted that the sale deed
executed by plaintiff No.1 Subbammal in favour of one
N.Venkatesh and referred to by defendant Nos. 1 to 3 was
a Nominal Sale Deed. The said Sale Deed was not acted
upon and said N. Venkatesh has not come in possession of
suit schedule property and though this is an admitted fact
by the defendants, the trial Court fell in error and held
that title of the suit schedule property has been
transferred in favour of N.Venkatesh and therefore, the
plaintiffs and defendants are not the title holders. When
the trial Court holds that the plaintiffs and defendants
were not the holders of the title, it was directly in the
teeth of the finding of the trial Court that the suit schedule
property is a joint family property, for, the alienation was
not approved by other members. Therefore, he contends
that the finding of the trial Court is totally erroneous and
not sustainable in law. He further submitted that the said
N. Venkatesh had endorsed on the agreement that he has
received the entire consideration amount and had agreed
to reconvey the property to plaintiff No.1. However, he
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did not do so and therefore, it is submitted that the sale
deed allegedly executed in favour of the said N.Venkatesh
was in fact, loan document, but not a conveyance of title.
In other words, it was a Nominal Sale Deed.
14. He further submitted that plaintiff No.1 has
gifted the portion of the suit schedule property in favour
plaintiff Nos. 2 and 3 under a registered Gift Deeds dated
26-6-2002 and in pursuance to the said Gift Deeds, they
have become absolute owners of the respective portions.
It is submitted that appellant No.1 had retained the
portion of the property i.e. schedule 'D' property with her
till her death. It is submitted that even though there were
oral admissions by PW.1 as well as DW.1 that money was
contributed for the construction of the suit schedule
property and there were several transactions showing the
mortgage and redemption of the mortgage and letting of
tenements, it would not come in the way of question of
title held by plaintiff No.1. Simply, because it is held that
husband of defendant No.1 had contributed certain
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amount for the construction of the building; the property
remained to be that of plaintiff No.1, who was the mother
of the husband of defendant No.1 as well as plaintiff Nos.
2 and 3 cannot be negated. Therefore, the said
transactions cannot be of any relevance or can act as a
clog on the title of plaintiff No.1.
15. Lastly, he contended that defendant No.1 had
sold portion of the property to none else than to her sons
on the basis of a Power of Attorney allegedly executed by
plaintiff No.1. Obviously, the said power of attorney has
not been produced. Therefore, the basis on which
defendant No.1 had acquired the right to transmit the
property has not been established. On this count, the
finding of the trial Court, even though is correct, it failed
to hold that plaintiff No.1 remained to be the absolute
owner of the property. When the trial Court holds that
either the plaintiffs or the defendants do not have the title,
it really fell in error. The trial Court has to appreciate the
evidence on record on the basis of the available evidence
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and the trial Court should have considered the principle of
preponderance of probability in arriving at a conclusion.
However, the trial Court has held that neither the plaintiffs
nor the defendants are the holders of title of the suit
schedule property, which is grossly erroneous.
16. After hearing the arguments by learned counsel
for the appellants, the points that arise for consideration
are:
(i) Whether the trial Court fell in error in holding
that the plaintiffs have failed to prove that the sale
deed executed in favour of N. Venkatesh was a
nominal sale deed?
(ii) Whether the plaintiff No.1 has proved that she
was the absolute owner of the suit schedule property
and she had gifted two portions of the suit schedule
property to plaintiff Nos. 2 and 3?
(iii) To what relief the parties are entitled to?
17. The first aspect to be considered is, whether the
title to the suit schedule property remained with plaintiff
No.1 or defendant No.1 was justified in transferring
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portion of property to defendant Nos. 2 and 3 on the basis
of a power of attorney?
18. It is relevant to note that the acquisition of the
suit schedule property in the name of the plaintiff No.1 is
not in dispute. It is the case of the plaintiffs that, plaintiff
No.1 acquired the suit schedule property under a
registered sale deed. The said registered sale deed is
produced by plaintiffs at Ex.P1. The fact that the property
was acquired by plaintiff No.1 is not in dispute. In this
regard, it is necessary to consider whether the property
remained to be the absolute property of plaintiff No.1 in
her hands or it was the joint family property?
19. The learned counsel appearing for the plaintiffs
has placed reliance on the judgment in the case of
Kanakarathnammal Vs.V.S. Loganatha Mudaliar and
another referred supra. In para 8 of the said judgment, it
was held as below:
"8. It is true that the actual management of the property
was done by the appellant's father; but that would
inevitably be so having regard to the fact that in ordinary
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Hindu families the property belonging exclusively to a
female member would also be normally managed by the
Manager of the family; so that the fact that appellant's
mother did not take actual part in the management of
the property would not materially affect the appellant's
case that the property belonged to her mother. The rent
was paid by the tenants and accepted by the appellant's
father; but that, again, would be consistent with what
ordinarily happens in such matters in an undivided Hindu
family. If the property belongs to the wife and the
husband manages the property on her behalf, it would be
ideal to contend that the management by the husband of
the properties is inconsistent with the title of his wife to
the said properties. What we have said about the
management of the properties would be equally true
about the actual possession of the properties because
even if the wife was the owner of the properties,
possession may continue with the husband as a matter of
convenience. We are satisfied that the High Court did not
correctly appreciate the effect of the several admissions
made by the appellant's father in respect of the title of
his wife to the property in question. Therefore, we hold
that the property had been purchased by the appellant's
mother in her own name though the consideration which
was paid by her for the said transaction had been
received by her from her husband."
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20. Further, in the case of Smt. Pushpa Devi Vs.
The Commissioner of Income Tax, New Delhi,
referred supra, it was categorically held by the Apex Court
that 'a female member of the joint family cannot blend her
separate property with the joint family property'. In para
16, by relying on another judgment of the Apex Court, it
was held as below:
"16. xxx xxx xxx
While concluding the discussion on this topic, the Court
observed at page 787 (of SCR) : (at p.1272 of AIR) that
on first principles, the result which was canvased by the
appellants was inconsistent both with "the basic notion of
blending" and with "the basic character of a limited
owner's title to the property held by her". The 'basic
notion of blending" which the Court has highlighted at
several places in its judgment is that it is the coparcener
who alone can blend his separate property with joint
family property and that the said right is not available to
a female who, though a member of the joint family, is
not a coparcener. We are clear that Mallesappa is an
authority for the proposition that a Hindu female, not
being a coparcener, cannot blend her separate property
with joint family property. Whether that separate
property is the female's absolute property or whether she
has a limited estate in that property would make no
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difference to that position. We may mention that
Mallesappa is quoted in Mulla's Hindu Law (14th Ed. p.
277) as an authority for the proposition that the doctrine
of blending cannot be applied to the case of a Hindu
female who has acquired immovable property from her
father, for sale is not a coparcener."
21. Further, the judgment of the Apex Court in the
case of Mangathai Ammal (Died) through her LRs Vs.
Rajeswari referred supra, lays down that, on the ground
of Benami transaction by husband in favour of wife, out of
the proceeds of the ancestral property cannot be a ground
to hold that the property is of a joint family. In this
judgment, it was held as below:
"xxx xxx xxx
However, considering the date of transactions with
respect to the suit properties and the ancestral properties
sold by husband, it can be seen that all the suit
properties purchased in the name of wife were much
prior to the sale of the ancestral properties by husband.
Therefore, also it cannot be said that the suit properties
were purchased in the name of wife by husband from the
funds received by selling of the ancestral properties. It
can be said that husband might have purchased the
properties in the name of wife in order to provide his wife
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with a secured life in the event of his death. It is required
to be noted that the benami transaction came to be
amended in the year 2016. As per S. 3 of the Benami
Transaction (Prohibition) Act 1988, there was a
presumption that the transaction made in the name of
the wife and children is for their benefit. By Benami
Amendment Act, 2016, S. 3 (2) of the Benami
Transaction Act, 1988 the statutory presumption. which
was rebuttable, has been omitted. Once it is held that
the Sale Deeds in favour of wife were not benami
transactions, in that case, suit properties, which were
purchased in name wife and the same can be said to be
her self-acquired properties and therefore cannot be said
to be Joint Family Properties, the plaintiffs cannot be said
to have any share in the suit properties."
22. Lastly, in the judgment of the Apex Court in the
case of Marabasappa (D) by LRs and others Vs.
Ningappa,(D) by LRs and others referred supra, it was
held that when the property was gifted to a woman by her
father under a registered Gift Deed, she is the owner of
the said land and she continued to be in possession of the
said land till she bequeath the same. The property cannot
be brought into the hotchpot of the joint family property
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and would not be available for partition. At para 18, it was
held as below:
"18. xxxxxxx
Stridhana belonging to a woman is a property of which
she is the absolute owner and which she may dispose of
at her pleasure, if not in all cases during coverture, in all
cases during widowhood. Since the plaintiffs have proved
that Parwatevva had not alienated the property by
executing a Will in favour of defendant No. 5 during her
lifetime, the property is the absolute property of
Parvatevva and would not be available for partition
among the members of joint family since it does not
partake the character of joint family property."
23. Examining the case on hand in the light of
above proposition of law, it is clear that when the property
is purchased in the name of plaintiff No.1 either by the
contribution of the husband of the defendant No.1 R.S.
Mani or by the husband of the plaintiff No.1, the property
remains to be the absolute property of plaintiff No.1. It
cannot be said that plaintiff No.1 had allowed the property
to be put into the hotchpot of the joint family and the
principle of blending will not be applicable. The property
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remains to be the absolute property of the woman. Even
the source for purchasing the property cannot be probed
into as per the wordings of Section 14 of the Hindu
Succession Act. Therefore, even if a woman had limited
estate in the property, it converts into an absolute holding.
The defendants or plaintiff Nos. 2 and 3 cannot contend
that it is the joint family property. When the property is
acquired by a female member, the principle of blending or
treating the same as the joint family property is totally
illegal to such contention. Hence, the trial Court has
clearly fell into an error in holding that the suit schedule
property though it was purchased by plaintiff No.1, is the
joint family property of the plaintiffs and defendants.
24. It may be true that, the evidence of PW1, PW2
and depositions of DW.1 and DW.2 show that building was
constructed over the site purchased by plaintiff No.1 with
the contribution by her son R.S.Mani as well as plaintiff
Nos. 1 and 2. The evidence discloses that several money
transactions were there and there were mortgages of the
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portions of the property in the form of Lease and even
some portions of the property were given on rent. These
transactions entered into by plaintiff Nos. 2 and 3 as well
as the husband of defendant No.1, R.S. Mani, are only for
the purpose of the management of the property. It may
be true that there were contribution by them for
construction of the building. That could not take away the
right of plaintiff No.1 over the suit schedule property.
Therefore, the conclusions reached by the trial Court that
suit schedule property is the joint family property cannot
hold any water.
25. The next question that arises is, whether the
plaintiffs have lost title over the suit schedule property by
way of sale deed executed by her in favour of
N. Venkatesh. On this aspect, the plaintiffs as well as the
defendants do not have any conflicting views. The
plaintiffs contend that there was a need for money and
therefore, a sum of Rs.40,000/- was received from
N. Venkatesh and she had executed a Sale Deed. It may
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be true that loan was raised for the purpose of
construction over the suit property. It is also true that
defendant No.1 also contributed for the construction of the
building. In the evidence of PW1/plaintiff No.1 at some
point, she admits that her son R.S.Mani had contributed
for the construction. At some other point, she states that
husband of defendant No.1 had not contributed any
amount. Be that as it may, that did not take away the
title of plaintiff No.1 over the suit schedule property in any
way. It is not the case of defendants that the Sale Deed
executed in favour of N.Venkatesh was an absolute sale
deed and it was acted upon. However, it is the case of the
defendants that brother and father of defendant No.1 had
contributed for repayment of the loan to said
N. Venkatesh. But N. Venkatesh is not a party to the
present suit.
26. It is not in dispute that N. Venkatesh had
endorsed on the agreement that he had received the
entire consideration amount to reconvey the property. On
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the contrary, defendant No.1 contend that her father and
brother had contributed for payment of loan to
N. Venkatesh and there were documents to establish the
same. DW.2 is none other than the brother of PW1. He
states that he and his father, stayed in the suit schedule
property for some time and they had paid the amount to
the tune of Rs.40,000/- to the said N. Venkatesh and
thereby, they got the endorsement. In other words, the
Sale Deed was in fact, was in the like of the mortgage to
N. Venkatesh and it was DW.2 and his father who had
redeemed it.
27. In order to establish this contention, it was
necessary for the defendants to show that the money due
to N. Venkatesh was paid by the said R.S. Mani, and the
father of defendant No.1. Though, it is contended that
there are documents, no such documentary evidence is
available on record. On the contrary, the endorsement
produced at Ex.D17 and Ex.D18 by the plaintiffs show that
said N. Venkatesh re-conveyed the property and the
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money of Rs.10,000/-was paid by none else than plaintiff
No.1 on 19-09-1993 and 27-2-1995 to the tune of
Rs.10,000/- and Rs.11,000/- respectively. If at all,
defendant No.1, her husband or her father had paid the
money to said N. Venkatesh, the same would have been
written in Ex.D17 and Ex. D.18. But on the contrary, it is
endorsed that it was plaintiff No.1 who paid the amount.
Under these circumstances, there is nothing on record
which would show that the money for re-conveyance of
the property was paid by the husband of defendant No.1
or her father.
28. Though DWs.1 and 2 contend that there are
documents in the form of Demand Promissory Notes etc.,
no such cogent evidence is available on record. The said
N. Venkatesh would have been a better witness to speak
about the same and the defendants have not adduced
such evidence. Therefore, when it is available on records
that plaintiff No.1 had trust in her eldest son i.e. Mani and
he had the custody of all documents, it was incumbent
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upon defendant No.1 to establish that the loan was repaid
to N. Venkatesh by her husband R.S.Mani and he alone
had paid the amount. The re-conveyance is not in favour
of said R.S. Mani. On the other hand, N. Venkatesh had
agreed to reconvey the property to plaintiff No.1. Under
these circumstances, the contentions of the defendants
that the husband of defendant No.1 had full title over the
suit schedule property cannot be accepted.
29. The second aspect put forth by the defendants
is that plaintiff No.1 had executed General Power of
Attorney authorizing defendant No.1 to sell the property.
Though the alleged sale deed in favour of defendant
Nos. 2 and 3 may contain an averment that defendant
No.1 was the GPA Holder, such General Power of Attorney
has not been produced. Therefore, when the document on
the basis of which defendant No.1 had executed the sale
deed in favour of her sons is not produced, an adverse
inference has to be drawn. It was incumbent upon the
defendants to produce such General Power of Attorney
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alleged to have been executed by plaintiff No.1. There is
no such authority for defendant No.1 to convey the portion
of suit schedule property to defendant No.1 to
N.Venkatesh. Under these circumstances, the transfer of
the title to defendant Nos. 2 and 3 is also not established
by the defendants.
30. The above facts and circumstances would
establish that plaintiff No.1 Subbammal continued to be
the absolute owner in title to the suit schedule property till
her heath. Obviously, she died during the pendency of
this appeal on 20-1-2008. The transactions by plaintiff
No.1 in favour of N. Venkatesh was a Nominal Sale Deed
and it had not conveyed any title to the said N. Venkatesh.
Therefore, it is evident that she continued to be the
absolute owner of the suit schedule 'A' property
comprising of suit schedule 'B', 'C' and 'D' property.
31. A perusal of the judgment of the trial Court
would show that in para 22 of the judgment, it appears
that trial Court was confused about the Gift Deeds
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executed by plaintiff No.1 in favour of plaintiff Nos. 2 and
3 and the sale deeds executed by defendant No.1 in favour
of defendant Nos. 2 and 3. It failed to consider that the
alleged Sale Deed in the name of Venkatesh, was a
Nominal Sale Deed and it was not acted upon. Obviously,
the revenue entries had not changed in the books of Tax
Assessment Register of the Local Body i.e. Bangalore City
Corporation and said N. Venkatesh had not come in
possession of the suit schedule property. Therefore, the
claim of the plaintiffs that it was a Nominal Sale Deed
could not have been brushed aside by the trial Court. It
appears that the trial Court has believed the sale deed
executed by the plaintiff No.1 in favour of N. Venkatesh
and validated the said sale deed, eventhough the other
records show that the name of plaintiff No.1 continued in
the municipal records. In that view of the matter, the
trial Court has fell in error in holding that Subbammal,
plaintiff No.1 had no title to the suit schedule property.
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32. It is also relevant to note that the trial Court
had failed to note that the property acquired by a female
hindu cannot be blended with the joint family under any
circumstances. Such blending with the joint family is
permissible only if such woman is a coparcener.
Obviously, plaintiff No.1 was never the coparcener of the
family of her husband and her sons. Therefore, if the
husband of plaintiff No.1 as well as the father of plaintiff
Nos. 2 and 3 as well as R.S.Mani had purchased the
property in the name of plaintiff No.1, it remains to be her
individual property and it cannot be termed as the joint
family property. Moreover, there is absolutely no evidence
to show that the joint family of husband of plaintiff No.1
i.e. Ramachari and his sons had sufficient nucleus to
purchase the property. There is no evidence available in
this regard. Therefore, the impugned judgment of the trial
Court is not sustainable in law. It had overlooked the
nature of the property and the fact that the sale deed in
favour of N. Venkatesh was a Nominal Sale Deed. It failed
to observe that there was no such dispute between the
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plaintiffs and defendants that it is a Nominal Sale Deed.
Though the defendants admit that N. Venkatesh going to
re-convey, it is their contention that such re-conveyance
has to be made in favour of R.S. Mani. There is no
material on the record to show this aspect. Hence, this
Court is unable to appreciate the views of the trial Court.
Under these circumstances, the impugned judgment is not
sustainable in law.
33. During the pendency of this appeal, plaintiff
No.1 Subbammal has died. Subbammal had executed two
Gift Deeds in respect of portion of the properties in favour
of plaintiff Nos. 2 and 3. These Gift Deeds are produced at
Exs.P4 and P5. When plaintiff No.1 was the absolute
owner of the property, she had every right to alienate the
property as per her wish and will. Therefore, these Gift
Deeds executed in favour of plaintiff Nos. 2 and 3 are to
be upheld. Therefore, plaintiff No.1 had the remaining
property as her absolute property at the time of her death.
As a consequence, plaintiff Nos. 2 and 3 and defendants
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would get shares by way of succession under Section 8 of
the Hindu Succession Act. Consequently, the suit schedule
'D' property is liable to be partitioned equally by plaintiff
Nos. 2 and 3 and the husband of defendant No.1 in equal
proportions.
34. It is relevant to note that by way of rejoinder,
the plaintiffs have sought for partition. Therefore, in order
to avoid further litigation in the matter, it would be proper
to determine the share of the parties as above. Therefore,
the points raised above are answered in favour of the
appellants/plaintiffs. Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree
passed by the trial Court in OS No.8294/2002 dated
22-09-2007 is hereby set aside.
(iii) The sale deeds executed by defendant No.
1 in favour of defendant Nos. 2 and 3 dated
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10-10-2001 being without any title, are declared as
void and not binding on the plaintiffs.
(iv) The Plaintiffs being the absolute owners
of the suit schedule 'B' and 'C' property, defendants 1
to 3 are restrained by an injunction from interfering
with the peaceful possession and enjoyment of the
suit schedule property by the plaintiffs.
(v) Plaintiff Nos. 2 and 3 are entitled for 1/3rd
share each and the defendants are entitled for 1/3rd
share in the suit schedule 'A' property, excluding the
property which was gifted by plaintiff No.1 in favour
of plaintiff Nos. 2 and 3.
(vi) Draw the decree accordingly.
Sd/-
JUDGE
tsn*
