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2011 DIGILAW 358 (KAR)

Anand Shetty v. K. Bhujanga Shetty

2011-03-29

H.N.NAGAMOHAN DAS, K.L.MANJUNATH

body2011
JUDGMENT 1. The appellant who was defendant No.3 in O.S.No 142/1999 on the file of Addl. Civil Judge (Sr.Dn), Huble, is challenging the judgment and decree passed by the said Court on 7/4/2005. 2. We have heard the learned counsel for the parties. 3. For the sake of convenience the parties will be referred as per the status before the Court below. 4. The plaintiff Bhujang Shetty, defended No.1 Govinda Shetty, defendant No.2 Jagannath Shetty, defendant No.3 Ananda Shetty and one Kallappa Shetty the husband of defendant No.4 and father of defendant No.5 and 6 are the children of Muddanna Shetty. The plaintiff Bhujanga Shetty filed the suit for declaration to declare that he is having 1/5th share by meets and bounds in respect of plaint schedule property and to restrain the defendants from alienating the plaint schedule property. The plaint schedule property is a hotel building bearing CTS No.2632 and 2625/2B. 5. According to the plaint averments the parties are originally from a village in Udupi Taluka and they hail from a very poor family. On account of their family difficulty the plaintiff and his brothers came to Hubli and worked in various hotels in Hubli in various capacity, after saving some of their earnings started a restaurant at Hubli in the name and style of Udupi Restaurant and thereafter they started two pan-shops and a Tailoring Shop adjoining to Udupi Restaurant. Subsequently, the business of Udupi Restaurant was expanded and thereafter the suit property was purchased in the name of the 3rd defended since he was a brilliant businessman and had good public relations. According to the plaint averments, the paint schedule property was purchases out of the contribution made by the plaintiff and defendants Nos.2 and 4. It is also the case of the plaintiff that his elder brother the defendant No.1 decided to leave Hubli and shifted to Udupi and therefore he did not participate in the activities of Hubli business. After some time, the defendant No.1 and other defendants established their houses separately and they also started business individually and acquired the properties in their individual names. However, the property purchased jointly out of the efforts of the plaintiff and defendants in the name of 3rd defendant, was not divided and that the 3rd defendant, and his children started acting to the detriment of the plaintiff. However, the property purchased jointly out of the efforts of the plaintiff and defendants in the name of 3rd defendant, was not divided and that the 3rd defendant, and his children started acting to the detriment of the plaintiff. Therefore he filed a suit for declaration to declare that he is having 1/5th share and that the suit property was purchased by the brothers jointly in the name of the 3rd defendant. 6. The 2nd defendant supported the case of the plaintiffs and filed a written statement sailing with the plaintiff. 7. The legal representatives of defendant no.1 also filed a memo adopting the written statement filed by the defendant No.2. 8. The 3rd defendant who is the appellant herein contested the suit. According to him there is no Hindu joint family and joint family property. The parties are governed by the Aliya Santana until the Hindu Succession Act was enacted and that they are governed by their customary laws. He admits that his father was a very poor man. Therefore each of his sons started earning separately. He also admitted that all the brothers were working in different hotels and however the contends that he started his career as a child labour, as a dish washer in hotels and restaurants and used to work for more than 16 hours in a day and out of his hard earned money, he started a small Tea Shop under the name and style of Udupi Restaurant by taking a premises on lease in Bani Oni and out of the said income and by raising loan from Hubli Co-operative Housing Society Limited, expanded the business and he acquired the portion of the plaint schedule property under a sale deed of 1963 and another piece of and was purchased under sale deed dated 6/2/1969 and that the plaintiff did not do business as a Tailor and that the plaintiff did not do business as a Tailor and that there was no contribution of him or of other brothers to acquire the plaint schedule property. 9. According to him the plaint schedule property is his self-acquired property. The plaintiff or the remaining defendants cannot have any claim over the same. When the 3rd defendant is the owner of the property, the question of giving accounts either to the plaintiff or to the remaining defendants did not arise at all. 9. According to him the plaint schedule property is his self-acquired property. The plaintiff or the remaining defendants cannot have any claim over the same. When the 3rd defendant is the owner of the property, the question of giving accounts either to the plaintiff or to the remaining defendants did not arise at all. It is also his case that the plaintiff and other defendants have acquired the properties on their own. Therefore, he contends that the suit filed by the plaintiff is not maintainable. Alternatively, it was also contended that he has been enjoying the property right from 1963 as owner of the property and has perfected his title by way of adverse possession. In the circumstances he requested the Court to dismiss the suit. 10. Based on the above pleadings the following issues were framed by the Court below:- ISSUES 1) Whether plaintiff and defendants with intention of expanding their business in Hubli, spotted the open-space of land adjacent to Udupi Restaurant, put the earnings of Udupi Restaurant and Pan Shop, purchased the piece of that land bearing CTS No.2925/2B on 6/2/1969 and constructed the building there named as “Hotel Mayura” as alleged in the plaint para-3? 2) Whether the plaintiff proves that the sale deeds of the suit properties have been made in the name of defendant No.3 with the consent of all the brothers as alleged in para 3 of the plaint? 3) Whether the third defendant proves that his possession has ripened into full ownership by way of adverse possession as alleged in para 12 of the written statement? 4) Whether third defendant proves that the Court fee paid by plaintiff is not proper? 5) Whether the plaintiff is entitled for the reliefs sought for? 6) What order or decree? 11. In order to prove their respective contentions, plaintiff was examined as PW-1 and he relied upon Ex.P-1 to Ex.P-10. He also examined one Baburao Saliyana S/o. Tesu Saliyana, a hair-dresser as PW-2. On behalf of the defendants one Satish Shetty S/o. Raghava Shetty was examined as DW-1 as power of attorney holder of legal representatives of Defendants 1. On behalf of the contesting 3rd defendant, his wife Smt. Jalaja Shetty, was examined as DW-2, as his power of attorney holder on account of his old-age and illness. The defendants relied upon Ex.D-1 to Ex.D-7. On behalf of the contesting 3rd defendant, his wife Smt. Jalaja Shetty, was examined as DW-2, as his power of attorney holder on account of his old-age and illness. The defendants relied upon Ex.D-1 to Ex.D-7. The trial court after appreciating the evidence let-in by the parties held issue Nos.1, 2 and 5 in the affirmative and Issue Nos.3 and 4 in the negative. Ultimately, the suit of the plaintiff came to be decreed holding that he is entitled for 1/5th share in the plaint schedule property. This judgment and decree is called in question in this appeal by the appellant. 12. The main contention of learned counsel for the appellant before us is that the trial court has committed a serious error in decreeing the suit of the plaintiff. According to him, the parties are governed by Aliya Santhana Law and that the plaint schedule property is not the property of their mother to claim it as Aliya Santhana property. He further contends that after filing of the suit, the plaintiff had filed a suit in O.S. No.109/2000 on the file of the Civil Judge (Sr.Dn), Udupi, claiming partition and separate possession of their family properties wherein the present suit property has or not been included. Therefore, he contends that the suit filed by the plaintiff claiming it as a joint family property or co-ownership property is not maintainable. According to him, when the plaintiff contends that the suit property was acquired out of the joint efforts of the plaintiff and defendants in the name of 3rd defendant/appellant, burden is heavy on him to show that the property was acquired out of the joint acquisition of the plaintiff and all his brothers and that the 3rd defendant is only a name ender and that such property is liable for partition amongst the co-owners. According to him, except the self-serving testimony of PW-1, not even a scrap of material is placed before the Court that the plaintiff was doing his tailoring business and he contributed money either in the year 1963 or in 1969 to acquire the suit properties. Similarly, the remaining defendants also did not produce any material to show that out of the joint acquisition of the plaintiff and his brothers, the property was purchased in the name of 3rd defendant on behalf of the brothers. 13. Similarly, the remaining defendants also did not produce any material to show that out of the joint acquisition of the plaintiff and his brothers, the property was purchased in the name of 3rd defendant on behalf of the brothers. 13. He further contends that the trial court has committed a serious error in rejecting the evidence of the power of attorney holder cannot be looked into. According to him, the plaintiff has admitted in unequivocal terms that on account of the old-age and illness, the 3rd defendant is permanently residing at Udupi and once in a while he would come to Hubli. Therefore, he contends that the rejection of evidence of DW-2 by the Court below is erroneous. He further contends that in view of Section 120 of the Indian Evidence Act, a wife is competent to give evidence on behalf of her husband and in view of non-consideration of Section 120 of the Evidence Act, the judgment and decree of the trial court has to be set aside. He further contends that when the burden of proving that the plaint schedule property was acquired out of the funds of the plaintiff and his brothers in the name of 3rd defendant was heavy on the plaintiff, when the said burden has not been discharged, the question of decreeing the suit by the court below does not arise at all. He further contends that even if Defendant No.3 had not let-in any evidence, the same cannot be a ground for the trial court for decreeing the suit, since the plaintiff has failed to prove Issue Nos.1 and 2. He further contends that the appreciation of evidence of PW-1 and PW-2 is perverse and liable to be reversed. He further contends that the admission made by PW-1 in the cross-examination in regard to the acquisition of the property or contribution of the plaintiff to acquire the property has not been considered by the court below. He lastly contends that the weaknesses of the defendant cannot be a trump-card for the plaintiff as the plaintiff has to stand or lose based on the evidence let-in by him. 14. Per contra, learned counsel for the 1st respondent Mr. Dinesh M. Kulkarni contends that the plaintiff’s evidence has not been challenged by the defendants and therefore, the trial court is justified in granting a decree in favour of the plaintiff. 14. Per contra, learned counsel for the 1st respondent Mr. Dinesh M. Kulkarni contends that the plaintiff’s evidence has not been challenged by the defendants and therefore, the trial court is justified in granting a decree in favour of the plaintiff. According to him, when the 3rd defendant has admitted the relationship between the parties, and when the 3rd defendant admits all the brothers started working at Hubli in different hotels, would only show that there was a contribution by each of the brothers to acquire the suit property and therefore, the trial court was justified in decreeing the suit. 15. Having heard the earned counsel for the parties, following points are to be considered by this Court:- (i) Whether the trial court is justified in granting a decree in favour of the plaintiff holding that the suit property has been acquired jointly by the plaintiff and his brothers? (ii) Whether the judgment and decree of the trial court requires to be interfered with? 16. The relationship between the parties is not at all in dispute. It is also not in dispute that the parties are governed by Aliya Santhana Law. It is also not in dispute that there is no property to be divided amongst the brothers under the provision of Aliya Santhana Law (the mother’s property). It is also not in dispute that after the institution of this suit, the plaintiff has filed a suit before the Civil Judge (Sr.Dn.), Udupi, claiming partition and separate possession of his share in respect of the property of his late father Muddanna Shetty. In the said suit, the suit property has not been included as one of the items. 17. The plaintiff has admitted in paragraph 11 of the plaint that on account of old-age, 3rd defendant is not in a position to manage the joint family properties and cannot look-after the business physically and visit the business premises twice or thrice in a month. The sons are trying to play fraud and are making an attempt to grab the properties for themselves. The 3rd defendant had earlier executed a power of attorney in the name of his wife and the same came to be cancelled subsequently. 18. The sons are trying to play fraud and are making an attempt to grab the properties for themselves. The 3rd defendant had earlier executed a power of attorney in the name of his wife and the same came to be cancelled subsequently. 18. In paragraph 8 of the plaint, the plaintiff has also admitted that from 1988, the 3rd defendant and his family members are managing the suit property and the 3rd defendant has not given any account and has not paid any profit out of the business and also the appropriated for themselves and received rentals from the tenants and therefore, the 3rd defendant is liable to pay share of the plaintiff in the amount received by the 3rd defendant and the 3rd defendant is liable to give accounts. 19. In paragraph 9, he pleads that the suit property is family business of the brothers herein. From the pleadings, it is clear to the Court that the plaintiff has contended that the plaint schedule business is a family business, normally, the plaintiff would have filed the suit for partition including all the family properties. But, in the instant case, the plaintiff has filed the suit claiming only 1/5th share in the business run in the name of 3rd defendant without including other properties, but later in the year 2000, he has filed a separate suit for partition and separate possession on the file of Civil Judge (Sr.Dn.), Udupi, which only shows that the plaintiff himself is not clear in regard to the nature of suit schedule property. If the plaintiff is intending to contend that the suit schedule business as the business of the brothers as co-owners, he would have pleaded properly contending that how the suit property was acquired in the name of the 3rd defendant and how the suit property is treated as property of co-owners consisting of plaintiff and his brothers. At one breath the plaintiff contends that on account of the assistance made by him and his brothers, the property was purchased in the name of 3rd defendant and in another breath he contends that it is a joint family business. If it is a joint family business, the suit filed by the plaintiff is not maintainable as it is not a suit filed by him claiming partial partition. He should have included all the family properties for partition and separate possession. If it is a joint family business, the suit filed by the plaintiff is not maintainable as it is not a suit filed by him claiming partial partition. He should have included all the family properties for partition and separate possession. When he has filed a suit or partition in O.S.No.109/2000, excluding the plaint schedule property, then this property cannot be considered as a family business or the family property of the plaintiff and defendants. In such an event, the plaintiff can claim his share as-a co-owner. 20. If the plaintiff is intended to claim the suit property as a co-ownership property, the pleadings and evidence would be differ and distinct. When the 3rd defendant has filed the written statement contending that it is his self-acquired property and similarly, the plaintiff and remaining defendants have acquired properties in their name individually, the burden of proving that the suit schedule property was acquired by the plaintiff and his brothers as co-owners is heavy on the plaintiff. In addition to that, he should have pleaded in unequivocal terms that the suit schedule property as a co-ownership property and he should have sought for a declaration to declare the plant schedule property as the property acquired by the brothers as co-owners in the name of the 3rd defendant. But unfortunately, no such declaration is sought and no evidence is also let-in this line. In this background, it would be useful for us to refer to the evidence of plaintiff who has been examined as PW-1. 21. The examination-in-chief of PW-1 is nothing but the replica of the plaint, because, it is an affidavit filed in lieu of examination-in-chief. To show that it was out of the amount invested by the plaintiff and his brothers, he has not placed any material before the Court below. The plaintiff has produced Ex.P-1 to Ex.P-10. Out of them Ex.P-1 to Ex.P-5 are the property extract register and hand-sketches to show the extent of property and in whose name the property stands in the municipal records; Ex.P-6 is the notice got issued in the year 1992; Ex.P-7 is another notice dated 31.01.1991; Ex.P-8 is another notice dated 13.10.1998; Ex.P-9 is postal acknowledgement and Ex.P-10 is the paper publication taken out in a daily newspaper. From the above documents it is clear that no document is produced by the plaintiff to show how and in what manner, the property was acquired by the plaintiff and his brothers in the name of the 3rd defendant. It has come in the evidence that when the 3rd defendant was not well, the PW-1 was managing the affairs of the plaint schedule property as a power of attorney holder and the said power of attorney was cancelled in the year 1988. From 1988 onwards, the 3rd defendant’s children are maintaining the plaint schedule property. In the cross-examination of PW-1, he has admitted as hereunder:- “I have no document to show that we have also invested our earning in the said tea hotel. It is true that licence and other document in respect of the said Udupi hotel was in the name of 3rd defendant. Witness volunteers that as 3rd defendant was intelligent man and said records were made in his name. It is true that rent note was also in the name of 3rd defendant.” 22. Subsequently, in one of the paragraphs, he has admitted as hereunder: “It is true that in my income tax returns, I have not at all shown Udupi hotel and suit properties as joint family properties. It is true that in my returns I have never shown that suit properties as joint family properties at any time. It is true that for the first time in this suit. I have claimed share in the suit property.” He has further admitted as hereunder: “It is true that licence, sale deed and other documents in respect of Mayur hotel and lodge are in the name of 3rd defendant. Since 30- years, I am submitting income tax returns. I have maintained accounts in respect of my business. At the time of construction of Mayur hotel, nobody had invested the money 3rd defendant has borrowed the loan for the purpose of construction of the building and we were the guarantors of the said loan. It is not true to suggest that even now that loan is pending. We have got document to show that we have discharged the said loan…..” [underlining is by us] 23. He has further admitted in the subsequent paragraphs as hereunder: “I have not shown in my income tax returns regarding the payment made to the 3rd defendant. It is not true to suggest that even now that loan is pending. We have got document to show that we have discharged the said loan…..” [underlining is by us] 23. He has further admitted in the subsequent paragraphs as hereunder: “I have not shown in my income tax returns regarding the payment made to the 3rd defendant. It is true that 3rd defendant has not given any share in the profit of Udupi Hotel as well as Mayur hotel. At no point of time, I have asked the 3rd defendant to give share in the profits of Udupi Hotel and Mayura Hotel. I do not know whether my other brothers had paid any amount in order to make good loss of Mayura Hotel. It is true that I have no document to show that I have put my funds in Udupi Hotel and Mayura Hotel.” He has further admitted as hereunder: “It is not to suggest that I am deposing falsely that the suit properties as joint family properties. It is not true to suggest that suit properties are not self-acquired properties of 3rd defendant. It is true that 3rd defendant is collecting the rent from the persons, who are running Mayura Hotel and lodge. Since 20-30 years myself and my brothers are residing separately. It is true that all the brothers are having separate houses and separate hotels…..” [underlining is by us] 24. From the above evidence, it is clear that he has not claimed suit property as co-owner ship property. In other words, he contends that it is a joint family property. If it is a joint family property, he could have included all the properties of the joint family while filing the suit for partition and separate possession. He has filed the suit for partition one year later in O.S. No.109/2000 on the file of the Civil Judge (Sr.Dn), Udupi. In other words, in one breath he contends that the suit schedule properly as co-ownership property, in another breath he contends that it is joint family property. To show that it is a co-ownership property and that he has contributed to acquire the property in the name of 3rd defendant, no evidence is let-in by the plaintiff. Similarly, the other brothers have also not let-in evidence to show that they also contributed to acquire the suit property. To show that it is a co-ownership property and that he has contributed to acquire the property in the name of 3rd defendant, no evidence is let-in by the plaintiff. Similarly, the other brothers have also not let-in evidence to show that they also contributed to acquire the suit property. He has also admitted that all the brothers are having separate houses and hotels. When all the brothers are having separate hotels, businesses and houses, the question of claiming suit property as the joint family property of the plaintiff and defendants does not arise for consideration at all. Except the evidence of PW-1, we do not have any other evidence. As stated supra, the plaintiff has not placed any document to show that how the suit property was acquired. If really, it is a joint acquisition of the brothers as co-owners, there was no difficulty for the plaintiff to examine the vendors of suit property who has sod the property to 3rd defendant or to examine the attestors or the scribe of the document to show that it was acquired out of the joint funds of the brothers. 25. PW-2, Baburao Saliyana, who is a hair-dresser, in his cross-examination was admitted as hereunder:- “It is true that brothers of Anand Shetty are residing separately in different houses. It is true that Anand Shetty was working as cleaner in different hotels. It is true that Anand Shetty was working as supplier and cleaner in Majestic hotel in Maratha Galli. It may be that Anand Shetty out of his earnings constructed Mayura Hotel…..” From the above admission, it is clear that he too admits that it may be that 3rd defendant has constructed Mayura Hotel out of his earnings. Therefore, the evidence of PW-2 is no assistance to prove the case of plaintiff. 26. Then, we have the evidence of DW-1, Sathish Shetty, who is the power of attorney holder of legal representatives of deceased Defendant No.1. He has no personal knowledge about the business run by the plaintiff and his brothers. He is only a power of attorney holder of legal representatives of Defendant No.1. He has been examined in the year 2003, then his age was 30 years. He has no personal knowledge about the business run by the plaintiff and his brothers. He is only a power of attorney holder of legal representatives of Defendant No.1. He has been examined in the year 2003, then his age was 30 years. When the property was acquired in the year 1963 & 1969, and when he is not a resident of Hubli and when he was not even born, the evidence of DW-1 is of no assistance to support the case of the plaintiff or the deceased Defendant No.1. 27. Then, we have the evidence of DW-2, Smt. Jalaja Shetty, the wife of 3rd defended, Anand Shetty. She had been examined as a power of attorney holder. In detail , she has stated how her husband was working as a supplier and as a cleaner in different hotels and how he acquired the properties and constructed building by mortgaging the suit property and borrowing the loan. Her evidence is not seriously challenged. But the trail court without considering the provisions of Section 120 of the Indian Evidence Act and that she is none other than the wife of 3rd defendant and that as the 3rd defendant is an aged person and has been residing permanently in Udupi which is about 300 k.m. away from Hubli, he could not be examined and the evidence of DW-2 has been could not be examined and the evidence of DW-2 has been rejected by the trial court without assigning any reason. It would be useful for us to refer to Section 120 of the Indian Evidence Act, which reads as under:- “In all civil proceedings, the parties to the suit and the husband or wife of any part to the suit shall be witness.” From this, it is clear that even if DW-2 is not a power of attorney holder, she could have been examined to depose on behalf of her husband who is aged and ailing. The rejection of evidence of DW-2 by the court below is perverse and liable to be reversed. 28. As stated supra, the plaintiff has not placed any material to show that the suit property was acquired jointly by the brothers. In addition to that he has admitted in his cross examination that when the 3rd defendant borrowed loan for construction of the building from the bank and all the brothers have stood as guarantors. 28. As stated supra, the plaintiff has not placed any material to show that the suit property was acquired jointly by the brothers. In addition to that he has admitted in his cross examination that when the 3rd defendant borrowed loan for construction of the building from the bank and all the brothers have stood as guarantors. If really, the property was purchased jointly by the brothers, in the loan application they would have mentioned that they have acquired the property jointly in the name of the 3rd defendant and as they are co-owners they would have joined 3rd defendant in borrowing the loan and they would have discharged the loan as principal borrowers and not as guarantors. The trial court without considering the oral and documentary evidence has wrongly held that the plaintiff has proved Issue Nos.1 and 2. According to us the finding of the trial court on Issue Nos.1 and 2 is not based on proper appreciation of evidence and such finding is a perverse finding, which requires to be reversed. In the circumstances, we hold the points framed for determination in this appeal are answered against the 1st respondent/plaintiff and in favor of the appellant/3rd defendant. 29. In the result, the judgment and decree passed by the Addl. Civil Judge (Sr.Dn), Hubli in O.S. No.142/1999 dated 07.04.2005 is hereby set aside and this appeal is allowed and the suit instituted by the 1st Respondent/plaintiff in O.S. No.142/1999 is hereby dismissed. Considering the relationship between the parties, there shall be no order as to costs.