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2014 DIGILAW 897 (KAR)

D. Jagadesha v. A. L. Ramachandra

2014-10-14

A.V.CHANDRASHEKARA, K.L.MANJUNATH

body2014
Judgment : 1. This appeal filed by the defendants 1 to 3 under Section 96 of CPC is directed against the judgment and decree passed on 03.11.2010 in O.S.No.91/2004 pending on the file of the II Addl. Senior Civil Judge at Shimoga. Suit filed by the plaintiffs-respondents herein for partition and separate possession has been decreed as prayed for. Several grounds have been urged in the appeal memo. Parties will be referred to as plaintiffs 1 to 14 and defendants 1 to 3 as per their ranking in the Trial Court. 2. Facts leading to the filing of the suit for partition and separate possession of two items of immovable properties and machines as described in schedule 'C' of the plaint are as follows: One person by name A.N.Loganatha Mudaliar had four sons 1) A.L.Nithyanandam 2) A.L.Purushothama 3) A.L.Dasharatha and 4) A.L.Ramachandra (1st plaintiff) and three daughters 1) Smt.Shivabhushanam 2) Smt. Pushpammal @ Pushpavathy and 3) Smt.Mahalakshmi i.e., 14th plaintiff. Among the children of Loganatha Mudaliar all are dead except the 1st and 14th plaintiffs. Second son A.L.Purushothama Mudaliar is stated to be unheard and unseen since 1958 inspite of best efforts made by the family members. Hence, he is stated to be civilly dead. 12th plaintiff Smt.M.Saraswathi, is the wife of A.L.Purushothama. Deceased first son Nithyanandham has two wives 1) Late Malarveni and 2) Smt.Kokilammal (2nd plaintiff). 3rd Plaintiff Shanthakumari is the daughter of Nithyanandham through his first wife and plaintiffs 4 to 7 are the children of Nithyanandham through his second wife Kokilammal. A.L.Dasharatha has three sons 1) D.Sreedara 2) D.Jagadesha (1st defendant) and 3) D.Manohara (2nd defendant) and one daughter by name Smt.M.Nalini (3rd defendant). Sri.D.Sreedara the first son of A.L.Dasharatha is stated to be missing since 1993 and as such, his whereabouts are not known till now. 8th and 9th plaintiffs are the two daughters of Smt.Shivabhushanam D/o A.N.Loganatha Mudaliar. 9th plaintiff is the wife of 1st plaintiff and has no issues. Plaintiffs 10 to 13 are the children of S.Pushpammal D/o Late Loganatha Mudaliar. According to the plaintiffs, the suit schedule properties were the self-acquired properties of the deceased Loganatha Mudaliar and since he died interstate, all his sons and daughters are entitled for equal shares. 9th plaintiff is the wife of 1st plaintiff and has no issues. Plaintiffs 10 to 13 are the children of S.Pushpammal D/o Late Loganatha Mudaliar. According to the plaintiffs, the suit schedule properties were the self-acquired properties of the deceased Loganatha Mudaliar and since he died interstate, all his sons and daughters are entitled for equal shares. Suit item No.1 was allotted to deceased Loganatha Mudaliar by TMC Shimoga and then registered in his favour on 17.10.1941 and later on Loganatha and his second son Purushothama built a Mangalore Tiled House thereon. Similarly, suit item No.2 was also allotted in favour of Loganatha Mudaliar and after his death, Khatha was changed in the name of his wife Smt.Bhagyammal and she died during 1987. The Engineering works at Shimoga was jointly started by Loganatha and his second son Purushothama under the name and style of "H.K.S. Engineering Works" in suit 'A' property. After the death of Loganatha, Purushothama looked after suit item No.1 for a year and later on, he is not to be seen or heard till now. It is averred that Loganatha Mudaliar was working as foreman in the Department of Industries and Commerce at Shimoga and the retirement benefits were utilized by him to set up H.K.S Engineering Works. A.L.Dasharatha was working in Silver Jubilee Polytechnic at Bhadravathy and he quit his job within two years and joined his father in starting the Engineering works at Shimoga. 1st Plaintiff was working in V.I.S.L at Bhadravathy as a Chemist and retired in 1981-82 and invested all his retirement benefits in H.K.S. Engineering Works. After the death of Dasharatha, his two sons i.e., defendants 1 and 2 were looking after the Engineering works. They did not manage the unit properly and resultantly suffered loss. RCC house was put up by all the members of the joint family during the year 1984-85 and defendants are collecting rent from the RCC house and Mangalore tiled house. They have even gone to the extent of getting the Khatha changed into their name and denying to give the plaintiffs their legitimate share. Hence, suit had to be filed for partition and separate possession and for rendition of accounts. 3. Defendants have filed written statement denying the very relationship. They have called upon the plaintiffs to strictly prove the contents of the plaint and genealogical tree furnished by them. Hence, suit had to be filed for partition and separate possession and for rendition of accounts. 3. Defendants have filed written statement denying the very relationship. They have called upon the plaintiffs to strictly prove the contents of the plaint and genealogical tree furnished by them. It is clearly averred that Loganatha Mudaliar had only one son and that plaintiffs are not the legal heirs of deceased Loganatha. According to them, all the plaintiffs except 1st plaintiff are the sons and daughters of A.N.Narayana Swamy Mudaliar and 1st plaintiff had claimed himself to be the adopted son of Narayana Swamy Mudaliar. 4. First plaintiff was a friend of Loganatha Mudaliar and he used to visit the house of Loganatha and the intimacy was such that everyone was feeling that Loganatha and the first plaintiff were father and son. Later on, 1st plaintiff proclaimed himself as the son of Loganatha Mudaliar and even concocted certain documents to show to the world that he was the son of Loganatha. According to them, suit item No.1 was the self-acquired property of their father and the unit was closed by their father Sri.A.L.Dasharatha during his life time. Hence, after the death of A.L.Dasharatha, Katha has been transferred to their name. The fact that suit item No.2 was allotted to Loganatha Mudaliar has been admitted. Suit is stated to be false and frivolous. 5. With these pleadings, they have prayed for dismissal of the suit. Following issues have been framed: 1. Whether the plaintiffs prove that first plaintiff is the son of A.N.Loganatha and he is related to the defendants? Recasted issue No.1 1. Whether the plaintiffs prove that Late A.L.Loganatha Mudaliar had 4 sons and 3 daughters as stated in para 4 of the plaint? 2. Whether the plaintiffs prove that the schedule property are the joint family properties of the plaintiffs and the defendants? 3. Whether the plaintiffs are entitled for 6/7th share in all the schedule property? 4. Whether the plaintiffs prove are entitled for mesne profits? 5. Whether the defendants prove that they are the sole owners of the schedule property? 6. Whether the plaintiffs have properly valued the suit and court fee paid is sufficient? 7. What decree of order? 6. First plaintiff is examined as PW-1 and has got marked 33 exhibits. First defendant has examined himself as DW-1 and has examined two witnesses on his behalf. 6. Whether the plaintiffs have properly valued the suit and court fee paid is sufficient? 7. What decree of order? 6. First plaintiff is examined as PW-1 and has got marked 33 exhibits. First defendant has examined himself as DW-1 and has examined two witnesses on his behalf. 22 exhibits have been got marked on behalf of the defendants. Issue Nos. 1, 2, 3 and 6 have been answered in the affirmative. Remaining issues have been answered in the negative. Suit is decreed as prayed for and it is this judgment and decree dated 03.11.2010 which is called in question in this first appeal. 7. We have heard the learned counsel for the parties at length. Though several grounds are raised in the appeal memorandum, Sri.S.V.Prakash, learned counsel for the appellants has mainly canvassed about the authenticity of the power of attorneys marked as Exs.P-1 to 4 and the alleged relationship between the plaintiffs and defendants. It is argued that it was Sri.A.L.Dasharatha who invested sufficient amount to put up a two storied RCC building in the suit property. Hence, it is prayed to allow the appeal. 8. Learned counsel for the respondents has supported the findings of the Trial Court contending that the Trial Court has property evaluated the evidence on the touchstone of intrinsic probabilities, keeping in mind the presumption available under Section 90 of Evidence Act. Following points arise for our consideration: a) Whether the relationship between the parties to the suit is properly established? b) Whether there is sufficient evidence placed by the defendants to probabilise that two storied building was put up as their father A.L.Dasharatha out of his own funds on suit item No.1? c) Whether any interference is called for and if so, to what extent? Reasons: 9. Plaintiff No.1 is the general power of attorney holder of remaining plaintiffs and the GPAs have been marked as Exs.P-1 to 4. They have been executed before the notary publics. Suit is filed by the first plaintiff on behalf of other plaintiffs and plaint has been duly verified by him as the power of attorney holder of plaintiff Nos.2 to 14. This aspect has not at all been denied in the written statement. A presumption is available under Section 85 of Evidence Act, regarding the genuineness of the power of attorneys if they are certified by a notary public. This aspect has not at all been denied in the written statement. A presumption is available under Section 85 of Evidence Act, regarding the genuineness of the power of attorneys if they are certified by a notary public. As rightly pointed out by the Trial Court in paragraph 44 of the judgment, the other plaintiffs have not disputed the GPAs. If the defendants had disputed the authority of plaintiff to file the suit as power of attorney holder on behalf of other plaintiffs, in their written statement, Court would have framed a specific issue to that effect. Therefore, proof of Exs.P-1 to 4 on the basis of the initial statutory presumption available under Section 85 of Evidence Act has remained virtually unrebutted. Exs.P1 to 4 will have to be considered as positive evidence in regard to the interse relationship of the parties to the suit. 10. Ex.P-31 is the genealogical tree relied upon by the plaintiffs about the relationship of the parties to the suit. We will have to see whether the plaintiffs have been able to probabilise the same on the basis of the broad preponderance of probabilities. The defendants have gone to the extent of asserting that their father A.L.Dasharatha, was the only son to Loganatha Mudaliar. Case of the plaintiffs is that Loganatha Mudaliar's wife's name was Bhagyammal and out of their matrimonial relationship, four sons and three daughters were born. According to them, the four sons are 1) A.L.Nithyanandham 2) A.L.Purushothama 3) A.L.Dasharatha and 4) A.L.Ramachandra (1st plaintiff). A.L.Purushothama was married but has not been heard or seen since 1958 inspite of best efforts made by the plaintiffs and as such he is civilly dead. 12th plaintiff Smt. Saraswathi is the wife of Purushothama. Plaintiffs 2 to 7 are the children of Late Nityanandham, who had two wives Malarveni and Kokilammal. 11. In his cross examination DW-1, Jagadish has testified that he knew A.L.Nityanandham and Purushothama but they were the sons of Narayana Swamy. But he has not placed any material to probabalise his defence even remotely. On the other hand, PW-1 has produced the original sale deed executed by the President of Town Municipal Council in favour of Late A.N.Loganatha Mudaliar on 17.10.1941 in respect of suit item No.1 and this deed was based on the resolution adopted in TMC on 2-3-1941. But he has not placed any material to probabalise his defence even remotely. On the other hand, PW-1 has produced the original sale deed executed by the President of Town Municipal Council in favour of Late A.N.Loganatha Mudaliar on 17.10.1941 in respect of suit item No.1 and this deed was based on the resolution adopted in TMC on 2-3-1941. Ex.P-15 is the plan approved by the TMC Shimoga authorizing Loganatha to put up building as per the plan. If PW1 was not a member of the family of Loganatha, he could not have produced the same. Hence, the reasonable inference is that PW-1 as the lawful custodian of these original documents has produced the same. This according to us, is a circumstance probabalizing the averments made in the plaint. 12. The fact that Smt.Bhagyammal was the paternal grandmother of defendants is not disputed by DW1 and she died on 23.07.1987 at Vellore and the same was proved by producing the Death Certificate issued by Vellore Municipality of North Arcot District. Smt.Mahalakshmi A.L. the 14th plaintiff is the daughter of Loganatha and Bhagyammal. This is evidenced by producing her School Leaving Certificate and Ex.P22 is the said certificate issued by the then Mysore Secondary Education Board. She is shown as the daughter of Lokanatha Mudaliyar and her date of birth is shown as 21.05.1938. This is a thirty year old document issued by a statutory authority and the same has a presumptive value. This is yet another document probablising the relationship of the parties. Ex.P16 is the original registered mortgage deed dated 14.03.1945 executed by A.N.Loganatha Mudaliar and his son Purushothama Mudaliar for availing loan of Rs.1,000/-from M/s.Hasoodi Rama Shastry & Sons an arecanut merchant of Shimoga in order to establish an Engineering workshop. DW1 has feigned ignorance about the same while this was brought to his notice. This document is also more than 30 years old and produced by the lawful custodian. Sri Loganatha himself has described Purushothama as his own son in Ex.P16. There is a specific reference in Ex.P16 that a sum of Rs.50/-each was paid by Purushothama on 20.02.1958 and 01.03.1958 respectively. 13. Exs.P28 to 30 are the receipts issued by the lender H.Rama Shastri & Sons for having received Rs.250/-, 500/- and 50/- on 13.05.1957, 20.02.1958 and 01.03.1958 respectively. These documents support the execution of Ex.P16. There is a specific reference in Ex.P16 that a sum of Rs.50/-each was paid by Purushothama on 20.02.1958 and 01.03.1958 respectively. 13. Exs.P28 to 30 are the receipts issued by the lender H.Rama Shastri & Sons for having received Rs.250/-, 500/- and 50/- on 13.05.1957, 20.02.1958 and 01.03.1958 respectively. These documents support the execution of Ex.P16. On Exs.P28 to 30, it is specifically endorsed by the lender that the amounts mentioned therein were paid by Loganatha and Purushothama. 14. Ex.P23 is the original registered simple mortgage deed executed by Smt.Bhagyammal and her sons A.L.Dasharatha and A.L.Ramachandra in favour of City Co-operative Bank Limited, Shimoga, on 22.09.1972 for availing a sum of Rs.4,000/-in order to perform the marriage of her daughter. Suit item No.1 was mortgaged under Ex.P23. This is also 30 year old document produced by a lawful custodian. Loan was repaid to the Society on 03.01.1977 in a sum of Rs.3,150-90 and Rs.258-10 by Smt.Saraswathy W/o Purushothama. Signature of Smt.M.Saraswathy is found in Ex.P24 and Ex.P24 and P25 are the cash receipts issued by the Co-operative Bank. 15. Ex.P27 is the lease deed executed between Bhagyammal and Srinarasimha Asst. Master, Sacred Heart High School, Shimoga, leasing Mangalore Tiled house bearing Door No.939-2 of O.T.Road, Shimoga, on a monthly rent of Rs.300 on 29.06.1981. There is a specific clause in Ex.P27 authorising her son A.L.Ramachandra to renew the lease after the expiry of (11) eleven months. 16. In respect of Ex.P27 DW1 has feigned ignorance. Similarly he has feigned ignorance about Exs.P28 to 30. Ex.P32 is the Passbook of 1st plaintiff in regard to his bank account in SBM, Shimoga Branch. He has feigned ignorance about the fact of this rent being deposited in this account. His designation is mentioned as Chemist V.I.S.L Laboratory at Bhadravathy. There is no reason to disbelieve these documents as presumption is available under Section 90 of Evidence Act, in regard to documents which are 30 years old. The Trial Court has rightly drawn the said presumption in regard to Exs.P16, 22, 23, 24 25, 27 to 30 and the contents thereof. 17. It is not as though the oral evidence of PW1 is foolproof. He has given some evasive answers to some questions and has not produced his S.S.L.C. marks card and other documents to show that he is the son of Loganatha Mudaliar. 17. It is not as though the oral evidence of PW1 is foolproof. He has given some evasive answers to some questions and has not produced his S.S.L.C. marks card and other documents to show that he is the son of Loganatha Mudaliar. If he had produced those documents, they would have further strengthened his case. But the documents which have been produced sufficiently probablise the case of the plaintiffs, more particularly, when the defendants have not been able to probablise their defence even remotely. Evidence of DWs.2 and 3 is of no assistance to support the case of the defendants in any manner. 18. What is argued before this Court by the learned counsel for the appellants is that burden of proof was on the plaintiffs and the same has not been effectively discharged and hence plaintiffs cannot take advantage of the weaknesses, if any, of the defendants. Burden of proof pales into insignificance when the parties lead evidence consciously knowing their respective case. Legal burden will remain static and the onus goes on shifting as the evidence is adduced. It is in this regard, the decision of the Hon'ble Supreme Court in the case of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and others reported in AIR 1960 SC P.100 is relevant and the same is reproduced below: "The expression "burden of proof" really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic." 19. The Trial Court has, on an overall consideration of the evidence let in by the parties, has come to the conclusion that the case of the plaintiffs is more probable and acceptable. It has assessed the evidence on the touchstone of intrinsic probabilities. It has adopted right approach to the real state of affairs. The Trial Court has, on an overall consideration of the evidence let in by the parties, has come to the conclusion that the case of the plaintiffs is more probable and acceptable. It has assessed the evidence on the touchstone of intrinsic probabilities. It has adopted right approach to the real state of affairs. Even on re-appreciation of the entire evidence, we are of the considered opinion that plaintiffs have been able to prove that A.N.Loganatha had four sons and two daughters and that 1st plaintiff is not the adopted or foster son of Loganatha as averred by the defendants. Hence, we answer point No.1 in the affirmative. Point No.2: 20. The Trial Court has given a finding that suit items were the self-acquired properties of late A.N.Loganatha. Even DW1 has categorically admitted in his evidence that suit items 1 and 2 had been granted to his grandfather Loganatha. In his cross-examination done on 02.12.2009, DW1 has admitted the suggestion that vacant site by the side of O.T. Road was granted to Loganatha by TMC Shimoga by executing a sale deed, as true. He has further admitted that Katha of item No.1 was changed to her name after Loganatha's death. DW1 has admitted in paragraph-2 of his cross-examination that on 09.10.2009 that item No.2 is in the name of his grandmother Bhagyammal. This item No.2 also had been owned by Loganatha in his individual capacity. 21. During the lifetime of Loganatha, H.K.S. Engineering Works was started in item No.1 by putting up building and a Mangalore Tiled house. After the death of Loganatha, two storied house was built in item No.1 behind the tiled house. Suggestion put to DW1 that the said RCC house was built by the contribution of plaintiffs and Dasharatha has been denied. But DW1 has not placed any material to show that his father alone bore all the expenses to put up RCC house. Admittedly, Dashratha was looking after H.K.S Engineering Works after the death of Loganatha. From 1958 A.L.Purushothama, has not been heard or seen. 22. PW1 was a Chemist in V.I.S.L Bhadravathy and was promoted as Scientific Officer. He got voluntary retirement in 1981-82 and hence got all monetary benefits from the Government V.I.S.L Factory. Thus, he has been able to probabilise that he had money in 1984-85 to contribute to the family in order to put up a RCC House. 22. PW1 was a Chemist in V.I.S.L Bhadravathy and was promoted as Scientific Officer. He got voluntary retirement in 1981-82 and hence got all monetary benefits from the Government V.I.S.L Factory. Thus, he has been able to probabilise that he had money in 1984-85 to contribute to the family in order to put up a RCC House. A.L.Dashratha was in service for two years only and joined his father in assisting him in H.K.S Engineering Works. Dashratha died in the year 1996. 23. The fact that Dashratha had also contributed money to put up RCC building is not in dispute. But he cannot say that it was his self-acquired property. Whatever income that Dashratha had, was only from M/s.HKS Engineering Works started by his father. Apart from this Loganatha died in 1954-55 and his terminal benefits were received in 1960-61 and the same was utilized to develop M/s. HKS Engineering Works. 24. On re-assessment of the evidence, we are of the considered opinion that DW1 has not been able to probabilise that HKS Engineering Works absolutely belonged to his father A.L.Dashratha and that RCC house was built by his father alone. Accordingly, we answer point No.2 in the negative. Point No.3: 25. In view of finding on points 1 and 2, no interference is called for and the appeal is liable to be dismissed upholding the judgment and decree of the Trial Court. If the appellants want any equity to be worked out in their favour, they are at liberty to urge the same before the FDP Court in which event, the Trial Court will follow the law laid down by the Hon'ble Apex Court in M.L.Subbaraya Shetty Vs. Nagappa Shetty & Others reported in AIR 2002(2) SC 2066. ORDER Appeal is dismissed. Parties to bear their costs.