[Cites 2, Cited by 0]
Karnataka High Court
Bhagyashree @ Bhagya W/O Narayan ... vs Ramachandra S/O Hanumanthrao Kulkarni on 11 February, 2026
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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RFA NO.100146 OF 2020
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 11TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR FIRST APPEAL NO.100146 OF 2020 (PAR/POS)
BETWEEN
1. BHAGYASHREE @ BHAGYA
W/O. NARAYAN KULKARNI,
AGE: 66 YEARS, OCC: RETD.,
R/O. BHAGYASRI NARAYAN KULKARNI,
BLOCK NO.D-7/4, W.M.S. COMPOUND,
BSNL QUARTERS, 47 CROSS, 9TH MAIN,
5TH BLOCK, JAYANAGAR, BANGALORE-560011.
2. KUM. CHITRA D/O. NARAYAN KULKARNI,
AGE: 30 YEARS, OCC: STUDENT,
R/O. BHAGYASRI NARAYAN KULKARNI,
BLOCK NO.D-7/4, W.M.S. COMPOUND,
BSNL QUARTERS, 47 CROSS, 9TH MAIN,
5TH BLOCK, JAYANAGAR, BANGALORE-560011.
3. ADITYA S/O. NARAYAN KULKARNI,
AGE: 27 YEARS, OCC: PVT. SERVICE,
R/O. BHAGYASRI NARAYAN KULKARNI,
BLOCK NO.D-7/4, W.M.S. COMPOUND,
BSNL QUARTERS, 47 CROSS, 9TH MAIN,
5TH BLOCK, JAYANAGAR, BANGALORE-560011.
GPA HOLDER OF A2
...APPELLANTS
(BY SRI. ANOOP G. DESHPANDE, ADVOCATE)
AND
1. RAMACHANDRA
S/O. HANUMANTHRAO KULKARNI,
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RFA NO.100146 OF 2020
AGE: 57 YEARS, OCC: LEGAL PROFESSION,
R/O. C. ANGARAJ BUILDING,
3RD CROSS, GAVALI GALLI,
RAYARMATH ROAD, MALAMADDI,
DHARWAD-580007.
2. RAGHVENDRA
S/O. HANUMANTHRAO KULKARNI,
AGE: 63 YEARS, OCC: GOVT. SERVANT,
R/O. SANKALPA, 6TH MAIN ROAD, MALAMADDI,
DHARWAD-580007.
3. HARISH S/O. VIDYADHAR KADNI,
AGE: 37 YEARS,
R/O. #100, SHRE RAGH RESIDENCY,
FLAT NO.508, 5TH FLOOR, 7TH CROSS,
VIJAY BANK COLONY, BASVAPUR MAIN ROAD,
K.R. PURAM, BANGALORE-560036.
4. SMT. PRABHA @ SRIDEVI
W/O. SRIKANT NADKARNI,
AGE: 55 YEARS, OCC: HOUSE HOLD WORK,
R/O. 'SADHAVAN', II CROSS,
KYATCHARKANHALLI,
NEAR MILITARY QUARTERS,
KALYAN NAGAR, BANGALORE-560043.
5. SMT. VIDYA W/O. VINOD YARADI,
AGE: 53 YEARS, OCC: PVT. SERVICE,
R/O. GELEYAR BALAGA, II CROSS,
RAJAJI NAGAR, BANGALORE-560010.
...RESPONDENTS
(BY SRI. S.V. YAJI, ADVOCATE FOR R1;
NOTICE TO R2-R5 IS DISPENSED WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 22.11.2019 IN O.S.NO.107/2013 PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE, DHARWAD, IN THE INTEREST OF JUSTICE AND
EQUITY.
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RFA NO.100146 OF 2020
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.01.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
CAV JUDGMENT
(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.)
This is the appeal filed under Section 96 CPC R/W
Order XLI Rule 1 CPC by defendant No.4 and legal
representatives of defendant No.3 challenging the judgment
and decree dated 22.11.2019 passed in O.S.No.107/2013
on the file of Principal Senior Civil Judge and CJM, Dharwad
(for short, Trial Judge').
2. Parties would be referred with their ranks, as
they were before trial Court for the sake of convenience and
clarity.
3. Plaintiff has filed the suit before trial Court
praying for Partition and Separate Possession of his 1/4th
share in suit 'A' schedule property and half share in suit 'B'
schedule property; for Court costs and for such other
reliefs.
RFA NO.100146 OF 2020
4. The case of plaintiff before trial Court in nutshell
is that defendant No.1 is the father of plaintiff, defendant
No.2 and defendant No.3 are sons of defendant No.1 and
defendant No.4 is the wife of defendant No.3; after filing
the suit he impleaded his sisters i.e. defendant No.5 to 7
who are also daughters of defendant No.1. The contention
of plaintiff is that defendant No.1 is a retired Government
servant and head of the family of plaintiff and other
defendants. He intended to purchase suit 'A' schedule
property bearing Plot No.8 measuring 2 guntas and 2 annas
situated at 1st main road, Jayanagar-Dharwad. The suit 'A'
schedule property was purchased for a sum of ₹.43,500/- in
the name of defendant No.3 from its holder Sri V.P.Desai
under registered sale deed dated 03.11.1987. At the time
of its purchase, defendant No.1 has paid ₹.36,000/- and
defendant No.3 has paid the remaining amount and said
property was purchased in the name of defendant Nos.3 & 4
with an intention to get loan because they were serving in
BSNL. After purchase, the construction was made in the
said property; at the time of construction, defendant No.1
RFA NO.100146 OF 2020
has paid a sum of ₹.35,000/-; plaintiff and defendant No.2
also contributed and loan was obtained from LIC for
construction of the said house. Acknowledging these facts,
defendant No.3 made his intention clear that instead of
Schedule 'A' property, the amount received by him from
plaintiff and defendant Nos.1 and 2 as well as from joint
family funds, he agreed that he would provide one gunta of
plot and ₹.24,000/- to plaintiff and defendant No.2 and
executed a deed of agreement dated 19.09.1997. According
to said document, defendant No.3 has given categorical
admission about payment of ₹.36,000/- at the time of
purchase and ₹.35,000/- at the time of construction by
defendant No.1 to defendant No.3. During 2005, defendant
No.3 along with plaintiff thought of purchasing the adjacent
suit 'B' schedule property, which belonged to their cousin
Smt.Jayashree, wife of Bhimsen Shivamoggi. The said
property was purchased for a sum of ₹.9,75,000/-. At that
time, the defendant No.3 proposed that the same may be
purchased in the name of his wife-defendant No.4 to make
it convenient to raise loan in her name as she was working
RFA NO.100146 OF 2020
in BSNL. Further, defendant Nos.3 & 4 not able to make any
arrangement for the entire sale consideration amount.
Hence, plaintiff has paid ₹.5,85,000/- to defendant No.3 by
way of depositing cheques and cash to the SB Account
No.4420 of defendant No.3 of Indian Overseas Bank,
Saptapur Branch, Dharwad on 06.05.2005 and 10.05.2005.
He has stated that through Cheque bearing No.963581 of
Canara Bank, a sum of ₹.1,85,000/-, through Corporation
Bank Cheque bearing No.062986, a sum of ₹.1,60,000/-,
and through Cheque No.078788 of M.G. Bank, Dharwad, a
sum of ₹.55,000/- and deposit of cash of ₹.1,85,000/- in
Indian Overseas Bank, Dharwad, the aforesaid total amount
of ₹.5,85,000/- for purchase of suit 'B' schedule property.
Defendant No.3 acknowledged the receipt of same by
executing an acknowledgment on 10.05.2005. Thus,
plaintiff and defendant Nos.3 & 4 have paid the amount for
purchase of this property. Thus, plaintiff has demanded his
half share in suit 'B' schedule property and 1/4th share in
suit 'A' schedule property. But, defendant No.3 went on
RFA NO.100146 OF 2020
postponing the same on one or the other pretext. Hence,
the suit for appropriate reliefs.
5. Defendant Nos.3 & 4 appeared through their
counsels and filed their separate written statements. In the
written statement, defendant No.3 has admitted the
relationship between parties but denied all other averments
made in the plaint regarding contribution of defendant No.1
to purchase and construct Suit 'A' schedule property and
contribution of plaintiff in purchasing suit 'B' schedule
property. He further took contention that defendant No.3
has taken responsibility of contributing his earnings towards
the marriage of his elder and two younger sisters which was
celebrated in the year 1984, 1986 and 1988 respectively.
The long standing service in the Department till the
marriage of defendant No.3 enabled him to purchase suit 'A'
schedule property in the year 1986. He could avail loan. He
made all his efforts in the construction of the house in the
plot. The construction of the house was completed during
June-1990. Plaintiff and defendant No.2 were looking after
RFA NO.100146 OF 2020
the construction, utilizing the funds given by defendant
Nos.3 and 4. As defendant No.1 and his wife i.e., mother of
plaintiff and defendant Nos.2 and 3 were alive, all family
members were lived together in the suit 'A' schedule
property. During 1989, defendant No.3 left for Bengaluru
and transferred to Bengaluru. During his stay in Bengaluru,
he used to pay the amount to plaintiff in good faith towards
construction of the house in suit 'A' schedule property.
Since then till June-2010 plaintiff and defendant Nos.1 and
2 resided in Suit 'A' schedule property without making any
consideration. During 2005, defendant No.4 purchased suit
'B' schedule property as she and her husband were able to
contribute for its purchase. This was possible for them as
they had raised loan from the bank. Except the financial
assistance as exhibited by the plaintiff, there was no other
intention of plaintiff in purchase of suit 'B' schedule
property. He never contributed towards its purchase.
Nowhere plaintiff has spoken about the assets of defendant
No.1 that helped defendant Nos. 3 or 4 to purchase suit 'A'
and 'B' schedule properties. Defendant Nos.3 and defendant
RFA NO.100146 OF 2020
No.4 being Government employees were having economic
ability to purchase those properties. Plaintiff and defendants
have accumulated wealth while living in joint family. But,
plaintiff had remained silent about it. Defendant No.2 also
got movable and immovable properties and they are not
included in the present suit schedule. Hence, only the
properties of defendant Nos.3 & 4 which are their self
acquired properties are included in this suit with malafide
intention. Plaintiff has not stated anything about the savings
of defendant No.1 i.e., being held by plaintiff when he was
taking care of his parents in Dharwad. The jewelry of
mother of the parties or fixed deposits of the defendant
No.1 are also not found room in this partition suit. Hence,
the suit is not maintainable for partial partition. The suit in
the present form is not maintainable as the nature of suit is
only for recovery of money or specific performance for
which the deed in question needs to be registered and for
filing the suit there is limitation and plaintiff has to pay the
requisite Court fee which was not forthcoming in this suit.
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RFA NO.100146 OF 2020
Hence, the suit is not maintainable in law. Hence, prayed
for dismissal of suit with costs.
6. Defendant No.4 filed her written statement
wherein she almost taken the contention similar of
defendant No.3 in his written statement and also admitted
about relationship of the parties, but denied all other
averments made in the plaint and further contended that it
is defendant No.4 who has purchased the suit 'B' schedule
property. Because, she was working at BSNL and saved
money and she has also obtained loan from the banks.
Thus, it is her self-acquired property. Defendant No.4 being
part of the family has performed her role of supporting the
family economically till she was living in Dharwad. Later,
she was transferred to Bengaluru and started living with her
husband in Bengaluru. The inclusion of her property and
impleading defendant No.4 in the suit does not arise at all.
She is not a necessary party to the suit. Hence, prayed for
dismissal of suit with costs.
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RFA NO.100146 OF 2020
7. During pendency of the suit, Defendant No.1
died, plaintiff, defendant Nos. 2, 3 and 5 to 7 are his legal
representatives.
8. During pendency of the suit, defendant No.3 died
and his legal representatives were brought on record.
Amongst them defendant No.3(b) has filed his written
statement, wherein, he has taken the similar contention
taken by his father. He further contended that defendant
No.1 is the grandfather of defendant No.3(b) who retired
from his service in the year 1980 and he was having a huge
family of 6 children and a wife to maintain. Thus, he was
unable to purchase or make any property during his time of
service or from his income. Defendant No.3 started his
service as part time lecturer in Kuthambari College, Hubballi
during 1980 and then he was appointed at BSNL during
1981 and purchased suit 'A' schedule property in the year
1987 from his own earnings i.e., even prior to the marriage.
At the time of marriage, defendant No.4 was already
employed in BSNL. Defendant Nos.3 & 4 were sound
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RFA NO.100146 OF 2020
enough to purchase and construct a house in suit 'A'
schedule property. Both of them have taken loan amounting
to ₹.1,40,000/- from LIC, Dharwad. A loan of ₹.6,00,000/-
from Indian Overseas Bank, Sapthapur for purchase of suit
'B' schedule property. Plaintiff utterly failed to prove that
why plaintiff and other defendants were not parties to the
sale deeds of suit schedule properties. Plaintiff being an
advocate is fully aware of legal consequences and lacuna in
his claims and fully aware that suit schedule properties were
totally self-affirmed properties of defendant Nos.3 & 4 and
thus they were not parties to the same deeds. There is no
existence of joint family as alleged in the plaint. Plaintiff has
already relinquished his right over suit 'A 'schedule property
in exchange of taking one gunta residential land and
₹.24,000/-. Plaintiff should have initiated suit for recovery
of said one gunta residential land with ₹.24,000/-. But, he
has filed a suit for partition which is not maintainable in law.
Hence, prayed for dismissal of suit with exemplary costs.
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RFA NO.100146 OF 2020
9. After completion of pleadings, the learned Trial
Judge has framed the following issues and additional
issues:-
ISSUES
1) Whether the Plaintiff proves that he
contributed the amount while purchasing
the suit properties in the name of
Defendants No.3 and 4 as urged?
2) Whether the Plaintiff further proves that he is
having share over the suit properties as
urged?
3) Whether the Defendant No.3 proves that the
suit of the Plaintiff is bad for non-joinder of
necessary parties as urged?
4) Whether the Plaintiff is entitle for the relief
of partition as sought?
5) What Order or Decree?
Addl. Issues:
1. Whether the Defendant No.3(b) proves that the
Plaintiff has already relinquished his
rights over the schedule A property in lieu of
taking 1 gunta of residential land and also
receiving Rs.24,000/-?
2. Whether the Defendant No.3(b) further
proves that the suit is hopelessly barred by
limitation?
10. On behalf of plaintiff, plaintiff was examined as
PW1, examined a witness as PW2, apart from marking
Exs.P1 to P22 and closed his side before the trial Court. On
behalf of defendant Nos.3 and 4, defendant No.4 and one of
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RFA NO.100146 OF 2020
the legal representatives of defendant No.3 were examined
as DW.1 and DW.2 and got marked Exs.D.1 to D.19 and
closed their side before the trial Court.
11. After recording evidence of both sides and
hearing arguments of both sides, the learned trial judge
came to the conclusion that plaintiff by producing Exs.P8,
P15 and other relevant documents has established that
plaintiff has contributed for purchase of suit 'B' schedule
property and defendant No.1 has contributed for purchase
of suit 'A' schedule property and thus decreed the suit as
prayed in the plaint.
12. Aggrieved by said judgment and decree, legal
representatives of defendant No.3 and defendant No.4 have
preferred the present appeal.
13. Heard arguments of both sides.
14. Learned counsel for appellants Sri.Arvind D.
Kulkarni would contend that marriage of defendant Nos.3
and 4 has taken place in the year 1988 whereas suit 'A'
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RFA NO.100146 OF 2020
schedule property was purchased in the Year 1987 in the
name of defendant No.3. But, in the plaint it is stated that
said property was purchased in the name of defendant Nos.
3 & 4 only to facilitate them to obtain loan, which is
apparently wrong. Learned counsel for Appellant would
further submit that according to the recitals of Ex.P.1-sale
deed, only ₹.30,000/- was the sale consideration amount
i.e. ₹.5,000/- was paid in advance and ₹.25,000/- was paid
in presence of Sub-Registrar. But, the Sub-Registrar has
collected stamp duty only based on market value of the
property at ₹.43,500/-. Admittedly, as on the date of said
sale deed, no joint family nucleus, as there was no property
standing in the name of any of the family members at that
time. Suit 'A' schedule property was first purchased
property by defendant No.3.
15. Learned counsel for appellants would further
submit that as far as Ex.D.5 is concerned, it is defendant
No.4 who has taken loan of ₹.1,40,000/- from LIC on
21.12.1989 for construction of house in suit 'A' schedule
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RFA NO.100146 OF 2020
property. He would further submit that the documents
produced by plaintiff themselves establish that according to
plaintiff through Cheque No.963581, he has given
₹.1,85,000/- to defendant No.3 on 09.05.2005, but said
cheque was returned on 10.05.2005, cash of ₹.1,85,000/-
was deposited in the bank account of defendant No.3.
According to plaintiff, the second cheque was for
₹.1,60,000/- and it was given by the wife of plaintiff and
she is not a party to the suit. Even considering all these
things, only ₹.4,00,000/- was paid and not ₹.5,85,000/- as
alleged by the plaintiff. Furthermore, Ex.P.9 receipt is for
₹.5,00,000/- and it is not tallying with either to
₹.5,85,000/- or to ₹.4,00,000/- and furthermore, in Ex.P9,
it is stated that only for funding purchase of house this
amount is paid by plaintiff to defendant No.3 and not for
any other purpose and thus plaintiff cannot be called as
joint owner in respect of suit 'B' schedule property.
Furthermore, suit 'B' schedule property is purchased in the
name of defendant No.2 and she has taken loan from Indian
Overseas Bank. Her loan account details establish that
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RFA NO.100146 OF 2020
₹.6,00,000/- loan was taken on 10.05.2005 and credited to
her savings bank account on the same day. Hence, said
argument is also not tenable in law. Hence, as both
properties i.e. suit 'A' and suit 'B' schedule properties are
purchased by defendant Nos.3 and 4 in their respective
names and they have produced ample material before the
Court to show that defendant Nos. 3 and 4 were working at
BSNL since long time prior to purchase of suit 'B' schedule
property and some time prior to purchase of suit 'A'
schedule property. Hence, they were having sufficient
nucleus to purchase these two properties and they have
also obtained loan for construction of the house in suit 'A'
schedule property.
16. Learned counsel for appellants would further
submit that Ex.P15 cannot confer any rights over these two
properties to plaintiff or to other defendants because it is
not duly stamped and not registered in accordance with law.
Its nomenclature itself is incorrect. This document is not fit
into any type of transactions admissible under law.
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However, these facts are not considered by the trial Court
and suit was wrongly decreed.
17. The learned counsel for appellants would further
submit that as the suit 'B' schedule property was purchased
for a sum of ₹.9,00,000/-, But, stamp duty was paid on
₹.9,85,000/- as it was the market value fixed by Sub-
Registrar. These facts clearly establish that plaintiff is not
aware about the total sale consideration for both suit 'A' and
suit 'B' schedule properties. It is his contention that he and
other defendants have contributed for purchase of suit 'A'
schedule property and he has contributed for purchase of
suit 'B' schedule property holds no water. Hence, prayed for
dismissal of appeal with costs throughout. Hence, prayed
for allowing the appeal and to dismiss the suit of plaintiff in
respect of both suit 'A' and 'B' schedule properties.
18. Learned counsel for respondent No.1/plaintiff
would submit that admittedly father of plaintiff and
defendant Nos.2 and 3 i.e. defendant No.1 was working as
Chief Jailer and retired from service in the year 1980 and he
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was getting pension. Thus, there was income for the family.
Since 1981 onwards plaintiff, defendant Nos.2 & 3 were all
working. Defendant No.3 was working from 1980.
Defendant No.1 was working from 1981 and plaintiff was
working as advocate from 1987 and prior to that he was
working as Civil Contractor and thus all of them were
residing together and they were blending their income and
thus they have purchased suit 'A' schedule property in the
name of defendant No.3 only because defendant No.3 was
working in BSNL and it was easy for them to get loan from
the bank.
19. Learned counsel for plaintiff would further submit
that accordingly on 19.09.1997 as per Ex.P15, defendant
No.3 has executed the document in favour of plaintiff,
defendant Nos.2 & 3, wherein he acknowledges the receipt
of ₹.36,000/- from his father at the time of purchase of suit
'A' schedule property and acknowledges the receipt of
₹.35,000/- at the time of construction of house in suit 'A'
schedule property. Hence, there is major contribution from
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defendant No.1-father to purchase suit 'A' schedule
property. Hence, not only plaintiff, defendant Nos.2, 3 and
5 to 7 will get equal share in said property. But, the trial
Court has granted 1/4th share to plaintiff and he fairly
concedes the error on this point by the trial Court.
20. Learned counsel for plaintiff would further submit
that as far as purchase of suit 'B' schedule property is
concerned, it is purchased in the name of defendant No.4
for a sum of ₹.9,75,000/- under registered sale deed dated
10.05.2005. At that time on previous day of this sale deed,
totally ₹.5,85,000/- was given by plaintiff to defendant No.
3 and it is through bank transaction and it clearly
establishes that plaintiff has contributed at least 50% to
purchase said property. Hence, he is entitled for half share
in suit 'B' schedule property. He would further contend that
even though in the sale deed, the sale consideration
amount is only mentioned as ₹.30,000/- in respect of suit
'A' schedule property, the stamp duty and registration
charges would be ₹.6,100/- and there will be other
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miscellaneous expenses also and thus father has paid
₹.36,000/- for its purchase and remaining petty amount
was being paid by defendant No.3 and it is clearly admitted
by defendant No.3 in Ex.P.15. Exs.P.16, P.17 and P.22
establish the payment of ₹.5,85,000/- by plaintiff to
defendant Nos.3 and 4.
21. After hearing the arguments of both sides and
upon verifying the appeal papers along with Trial Court
records, the following point would arise for consideration:
1. Whether the judgment and decree passed by
the Trial Court is erroneous and it requires
interference?
22. Finding of this Court on the above point is in
'affirmative' for the following reasons:
23. The admitted facts of the case are that plaintiff
and defendants No.2 & 3 are brothers and defendants No.4
to 7 are sisters. Plaintiff, defendants No.2, 3 and 5 to 7 are
children of defendant No.1. During pendency of the case,
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defendant No.1 died and his LRs. i.e., plaintiff, defendants
No.2, 3 and 5 to 7 were already on record; Defendant No.3
died during the pendency of the appeal and he is
represented by his LRs. i.e., defendants No.3(a and b) and
also his wife-defendant No.4; Defendant No.5 also died
during the pendency of the matter and her LRs. defendant
No.5(a) is brought on record.
24. The relationship between parties is admitted.
Suit 'A' schedule property is Plot No.8 measuring 2 guntas
and 2 annas and suit 'B' schedule property is Plot No.7
measuring 3 guntas and 13.5 annas.
25. Certified copies of Sale deeds as per Ex.P.1 & 3
reveals that suit 'A' schedule property was purchased in the
name of defendant No.3 for a sum of ₹.30,000/- under
registered sale deed dated 03.11.1987 and suit 'B' schedule
property is purchased in the name of defendant No.4 for a
sum of ₹.9,00,000/- under registered sale deed dated
10.05.2005. However, stamp duty for suit 'A' & 'B' schedule
property was paid on the existing market value of
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₹.43,500/- and ₹.9,85,000/- respectively. This sale deed as
per Ex.P.1 further reveals that totally ₹.5,220/- towards
stamp duty and ₹.882/- towards registration charges i.e.,
₹.6,100/- is paid.
26. It is the specific contention of plaintiff that his
father has contributed a sum of ₹.36,000/- to purchase suit
'A' schedule property, which was vacant plot and ₹.35,000/-
for putting up of construction in suit 'A' schedule property
and thus it is the joint family properties of plaintiff and
defendants No.1 to 3 and 5 to 7. It is his further contention
that to purchase suit 'B' schedule property, he has
contributed ₹.5,85,000/- and it is purchased for a sum of
₹.9,85,000/-.
27. As discussed above,, in both these sale deeds,
sale consideration amount mentioned is ₹.30,000/- and
₹.9,00,000/- respectively, whereas plaintiff in the plaint and
in his evidence contended that the sale consideration
amount is ₹.43,500/- and ₹.9,85,000/- respectively. Hence,
learned counsel for defendants No.3 and 4 would submit
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that plaintiff is not aware about the actual sale
consideration amount itself to purchase these two
properties. This shows that he has not contributed anything
for purchase of these two properties. Hence, he is not
entitled for any share in these two properties.
28. It is to be noted here that at the time of
purchase of suit 'A' schedule property in the year 1987,
plaintiff, defendants No.2 and 3 were unmarried. Marriage
of defendant No.3 was celebrated in the year 1988. After
such marriage, defendant No.3 & 4 together have obtained
loan of ₹.1,40,000/- from LIC and put up construction in
suit 'A' schedule property. Ex.D.5 is the loan account
extract, which establishes the same.
29. As far as purchase of suit 'B' schedule property is
concerned, it was purchased on 10.05.2005.
30. It is the specific contention of plaintiff in the
plaint and also in his affidavit evidence that totally he has
contributed ₹.5,85,000/- for purchase of this suit 'B'
schedule property. In this regard, he has stated that he has
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issued Cheque bearing No.963581 of Canara Bank for a
sum of ₹.1,85,000/-; another Cheque of Corporation Bank
bearing No.062985/- was issued for a sum of ₹.1,60,000/-,
another cheque of MG Bank was issued for a sum of
₹.55,000/-, and ₹.1,85,000/- cash was deposited in the
Indian Overseas Bank.
31. The account extract of defendant No.3
establishes that Cheque bearing No.963581 of Canara Bank
for a sum of ₹.1,85,000/- was returned on 10.05.2005.
Hence it was not encashed.
32. Ex.P.16 is the bank account extract of one
Leelavati Ganapathrao Mulgund, who is none other than the
wife of plaintiff and from her account, this ₹.1,60,000/- was
transferred on 07.05.2005. Ex.P.17 is the Canara Bank
account of plaintiff. According to it, on 10.05.2005 he has
withdrawn ₹.1,85,000/- as per Cheque No.963582 for self.
33. Ex.D.1 is the bank account extract of defendant
No.3. It reveals that ₹.1,60,000/- is received from the bank
account of wife of plaintiff on 09.05.2005. On the same day
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i.e., 09.05.2005, ₹.55,000/- is received from the bank
account of plaintiff and Cheque of ₹.1,85,000/- was
returned on 09.05.2005, but cash of ₹.1,85,000/- is
deposited on 10.05.2005. The loan account of defendant
No.4 as per Ex.D.6 reveals that ₹.6,00,000/- was
transferred from the loan account on 10.05.2005 to her
savings bank account.
34. The certified copy of sale deed produced by the
plaintiff as per Ex.P.3 reveals that ₹.6,00,000/- was
transferred from the Indian Overseas Bank account of the
purchaser i.e., of defendant No.4 to the bank account of
seller; ₹.10,000/- was paid in advance and remaining
₹.2,90,000/- was paid through Banker's Cheque bearing
No.802178 dated 10.05.2005 and thus the entire sale
consideration amount was paid.
35. Even though defendants No.3 & 4 have denied
receipt of the aforesaid amounts by plaintiff and his wife to
defendant No.3, these documents clearly and categorically
establish the payment of ₹.1,85,000/- cash, ₹.1,60,000/-
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through Cheque of the wife of plaintiff, ₹.55,000/- through
Cheque of plaintiff. Thus, ₹.4,00,000/- was transferred from
the bank accounts of plaintiff and his wife to bank account
of defendant No.3.
36. In this regard, defendant No.3 has written one
receipt as per Ex.P.9. Its recitals are as follows:
"RECEIPT
Received Rs.5,00,000/- (Rupees Five lakhs
only) from my brother R.H. KULKARNI, "Parijata" I
main Road, Jayanagar, Dharwad on 10.5.2005 for
funding purchase of house."
Below that, name and signature of defendant No.3 is
forthcoming in Ex.P.9.
37. Defendant No.3 has also executed one
agreement as per Ex.P.15 dated 19.09.1997. It is recited in
that document that father of defendant No.3 during 1987
has given ₹.36,000/- for purchase of plot No.44/E-8
measuring 2 guntas and 2 annas situated at C.I.T.B.
Jayanagar, Saptapur Village, which was purchased for a
sum of ₹.43,500/-. Out of which, ₹.36,000/- was paid by
the father and remaining amount is given by defendant
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No.3. Afterwards, to construct the house in that property,
they have taken loan from LIC and at that time their father
has given ₹.35,000/- for construction of the house. Thus,
according to the recitals of this document, it is the father of
plaintiff and defendants No.2, 3 and 5 to 7 who gave
₹.35,000/- for construction of the house.
38. It is an admitted fact that the construction of
house was completed in the year 1990 and since from 1990
till 2010, plaintiff and defendant No.2 along with defendant
No.1 were residing in the same house. Defendants No.3 and
4 were also residing in the same house. But in the
meanwhile whenever they were transferred from Dharwad
to other places i.e., Bengaluru and Hubballi, they were
residing in Bengaluru and Hubballi respectively and even at
that time, plaintiff, defendants No.1 and 2 with their family
members were residing in the same house.
39. These facts clearly and categorically establish the
contribution of money by the father of plaintiff and
defendants No.2, 3 and 5 to 7 to purchase and construct a
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house in suit 'A' schedule property. In this regard,
defendants No.3 and 4 have produced Ex.D.5, the details of
housing loan issued by the Senior Divisional Manager of
LIC, Dharwad Branch. According to this document, loan of
₹.1,40,000/- sanctioned to defendants No.3 and 4 jointly
for construction of a house at suit 'A' schedule property,
which was completely repaid on 05.10.2000.
40. Learned counsel for defendants No.3 and 4
vehemently submits that Ex.P.15 is an inadmissible
document because it is unstamped and it is not fit into any
type of transaction. The further recitals of this document
are that the ownership of defendant No.3 would be
confirmed only after defendant No.3 gave one gunta
property and cash of ₹.24,000/- to plaintiff and defendant
No.2 in Dharwad and they have to get it registered into
their name without any delay and only afterwards
defendant No.3 would become the absolute owner of suit 'A'
schedule property and it is accepted by all the members of
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family. It is duly signed by defendant No.3 and signed by
some of the attestors.
41. Even though it is recited in this document that
defendant No.3 will give a property of one gunta and
₹.24,000/- to plaintiff and defendant No.2, it appears that
no such property and cash was given by defendant No.3 to
plaintiff and defendant No.2.
42. It is to be noted here that plaintiff, defendants
No.2, 3 and their family members together resided in suit
'A' schedule property from 1990 till 2010 i.e., for a
continuous period of 20 years even in the absence of
defendant No.3 & 4 and they have not given any rent
during their stay. This factum is clearly and categorically
admitted by defendant No.4 in her cross-examination.
43. It is to be noted here that the sale deed is in the
name of defendant No.3 and even then why defendant No.3
executes such letter as per Ex.P.15 saying that he would
give property and cash and then only he would become
absolute owner of said property. These recitals at
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undisputed point of time during 1997 itself reveals that
when both parties were cordially living together under
single roof, even though this property was purchased in the
name of defendant No.3, it appears it is blended in the joint
family.
44. Learned counsel for defendants No.3 & 4 would
submit that there is no joint family property exists before
purchase of suit 'A' schedule property and hence there is no
question of blending of this property.
45. It is not in dispute that prior to purchase of suit
'A' schedule property, no other immovable property was in
the joint family; father of plaintiff and defendants No.2 & 3
was working as Chief Jailor i.e., he had Government job and
retired during 1980 and he was getting pension. Thus,
though there is no joint family, immovable property existed
prior to purchase of suit 'A' schedule property; it is
defendant No.1 and plaintiff and defendants No.2 and 3 and
also plaintiff were working and all of them were getting the
income. When all of them were residing together under
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same roof, it appears that they have blended their income
to construct the house in suit 'A' schedule property. Hence,
only for that reason, it appears that this letter as per
Ex.P.15 came into existence. This letter does not confer or
extinguish any right on any property. It is only a remark
that defendant No.3 would get absolute right over suit 'A'
schedule property after he makes some arrangements to
plaintiff and defendant No.2. That itself cannot be
considered as the relinquishment of right of plaintiff and
defendant No.2 in the property or conferring right to
defendant No.3 on the property. Hence, it is only a family
arrangement and thus it need not be stamped or registered.
Hence, the arguments of learned counsel for defendants
No.3 & 4 that this document requires compulsory
registration are not proper.
46. As far as taking loan and repayment in respect of
suit 'B' schedule property is concerned, it is not in dispute
that father of plaintiff and other defendants was getting
pension and he was having his pension account as per
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Ex.P.22. This document reveals that he was making some
payments often to the account of defendant No.3 and
sometimes to the loan account. On 09.05.2011, through
Cheque No.598447, ₹.1,55,000/- was credited to the
account of defendant No.3. Likewise, there are several
transactions in this document, which reveal that often
₹.10,000/-, ₹.3,000/-, ₹.4,000/-, etc., were being
transferred from the account of defendant No.1 to
defendant No.3 even after 2010. Thus, the contention of
plaintiff of blending is substantiated even by producing
Ex.P.21.
47. It is the contention of plaintiff that as defendant
No.3 was working in BSNL and defendant No.4 was also
working in BSNL, it was easy for them to obtain housing
loan and hence suit 'A' and 'B' schedule properties were
purchased in the name of defendants No.3 and 4
respectively.
48. It is not in dispute that defendants No.3 and 4
were working in BSNL. Defendant No.3 commenced his job
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in BSNL during 1983 as class-III telephone operator. Thus,
there would not be huge sum of salary to defendant No.3 at
that time.
49. With this background, the oral evidence of both
sides is to be looked into.
50. To substantiate the contention of plaintiff,
plaintiff examined a witness as P.W.2. He has stated in his
affidavit evidence regarding payment of ₹.5,00,000/- by
plaintiff to defendant No.3. In this regard, he was examined
in respect of Ex.P.9. According to Ex.P.9, it is only stated
that defendant No.3 received ₹.5,00,000/- from plaintiff.
But according to cross-examination of P.W.2, ₹.5,00,000/-
cash was paid on that day because it was suggested to him
that whether ₹.5,00,000/- cash was paid in his presence on
that day, for which he answered 'yes'. However, according
to contention of plaintiff under different Cheques and cash,
he has paid the amount as discussed above. Accordingly,
because P.W.2 deposed that ₹.5,00,000/- was paid in his
presence, that would not take away the entire case of
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plaintiff because his case is based on documentary evidence
as discussed above.
51. D.W.1 is defendant No.4 in this case. Her
contention is that it is she and defendant No.3 alone has
contributed for purchase of suit 'B' schedule property. In
this regard, in the cross-examination, defendant No.4
admitted the signature of her husband in Vakalathnama and
also in written statement. Even according to her, suit 'A'
schedule property was purchased for a sum of ₹.45,000/-
and not ₹.30,000/- as per the recital. According to her, she
purchased suit 'B' schedule property for a sum of
₹.9,00,000/- for which ₹.6,00,000/- was taken as loan from
Indian Overseas Bank. ₹.1,00,000/- was her savings and
₹.2,00,000/- was given by defendant No.3. She has not
produced any other document except the documents as
discussed above to prove the aforesaid contention.
52. She has not produced documents to show that
she was having savings of ₹.1,00,000/- in her account at
the time of purchase of this property. According to her,
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defendant No.3 has obtained loan from BSNL Employees
Co-operative Society to purchase suit 'A' schedule property
and to put up construction on it. But no such documents are
produced to prove it. Suit 'B' schedule property was already
consisted of a house property. Defendants No.3 and 4 have
taken loan by mortgaging suit schedule property only for
the education of defendant No.3(a).
53. By examining all the above factors, rightly the
learned Trial Judge came to the conclusion that major
contribution for purchase of suit 'A' schedule property is by
the father of plaintiff and defendants No.2, 3 and 5 to 7.
Even though he came to that conclusion, while passing
decree, 1/4th share is awarded to plaintiff and defendants
No.1 to 3 in suit 'A' schedule property and excluded
defendant No.5 to 7.
54. However, when father has made major
contribution to purchase the property and also made some
contribution to put up construction in it and when all the
parties resided together in that property as the joint family
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property, then all the sons and daughters of defendant No.1
will get equal share in that property and thus the share of
plaintiff shall be only 1/6th on this property and not 1/4th as
prayed by him and as granted by the Trial Court. Hence,
that portion of judgment is to be modified.
55. Even though plaintiff has not produced proper
evidence to show that entire ₹.5,85,000/- was paid by him
to purchase suit 'B' schedule property, but he has produced
materials to show that on 06.05.2005, 09.05.2005 and
10.05.2005 i.e., he and his wife have contributed
₹.4,00,000/- to purchase suit 'B' schedule property and it
was purchased on 10.05.2005. Under those circumstances,
definitely plaintiff also contributed to purchase suit 'B'
schedule property is established by him.
56. Considering it, the learned Trial Judge has
granted ½ share to plaintiff in suit 'B' schedule property.
57. As far as suit 'B' schedule property is concerned,
there is no evidence to show that except plaintiff, his wife
and defendants No.3 and 4, other parties i.e., defendants
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No.2 or 1 have contributed to purchase this property.
Hence, both plaintiff and defendants No.3 and 4 are entitled
for ½ share and thus the decree in respect of said property
is unaltered.
58. Thus, contention of plaintiff is that his father has
repaid some of the loan amount made by defendants No.3
and 4 even in respect of suit 'B' schedule property and in
this regard, he relied upon Ex.P.22-bank account extract of
his father as discussed above.
59. According to Ex.D.5, the loan account of both
defendant No.3 & 4 in respect of suit 'A' schedule property
was cleared on 5.10.2000. Thus, any payment by father to
the loan account of defendant No.3 would be only pertaining
to suit 'B' schedule property. As discussed above, there are
several transactions in Ex.P.22 that father has paid amount
to the account of defendant No.3. Once, it was
₹.1,55,000/- as stated above. Thus, the contention of
plaintiff of blending the income of all family members is
substantiated by this entry.
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60. Under these circumstances, when father and
plaintiff and defendants No.3 & 4 contributed for purchase
of suit 'B' schedule property and when all the members
were residing together in these properties and when there
was blending of their income, then, it is impossible to say
who contributed how much, the plaintiff, defendants No.2, 3
and 5 to 7 will be equally entitled for 1/6th share even in
suit 'B' schedule property. However, the learned Trial Judge
has granted ½ share to plaintiff in suit 'B' schedule property
and not granted share to other defendants. Hence, all are
entitled for equal share even in suit 'B' schedule property.
However, the learned Trial Judge has not considered these
aspects properly and decreed the suit granting ½ share in
suit 'B' schedule property, which is not proper.
61. For the above reasons, we proceed to pass the
following:
ORDER
1. The appeal filed under Section 96 read with Order
XLI Rule 1 of CPC is allowed in part.
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2. Judgment and decree dated 22.11.2019 passed in
O.S.No.107/2013 on the file of Principal Senior Civil
Judge and CJM, Dharwad is hereby modified.
3. Share of plaintiff in suit 'A' & 'B' schedule property
shall be 1/6th instead of 1/4th and ½ respectively as
granted by the Trial Court.
4. Draw preliminary decree accordingly.
5. Send back TCR along with copy of this judgment to
Trial Court for reference.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Sd/-
(GEETHA K.B.)
JUDGE
HMB upto para 20
SH from para 21
CT-MCK
