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2019 DIGILAW 1509 (KAR)

V. Rajkumar v. V. Sridharan

2019-07-02

H.B.PRABHAKARA SASTRY

body2019
JUDGMENT : H.B. Prabhakara Sastry, J. 1. The suit of the present respondent No. 1 in his capacity as a plaintiff filed in the Court of learned XXVIII Addl. City Civil Judge, Bengaluru, (hereinafter for brevity referred to as ‘trial Court’) against the present appellant and respondent Nos. 2 and 3 (Respondent Nos. 3(a), 3(b) and 3(c) being legal representatives of deceased 3rd respondent) as defendants therein for the relief of partition and separate possession, came to be decreed by the judgment and decree dated 14.01.2011, passed in O.S. No. 16483/2001. Challenging the said judgment and decree, the defendant No. 1 in the trial Court has preferred this appeal. 2. The summary of the case of the plaintiff in the trial Court is that he being the younger brother of the defendants, the plaint "A" schedule property being his fathers, who died intestate on 25.09.1980 and his mother also having died subsequently, was entitled to 1/4th share in the suit schedule properties. It was his further contention that the suit schedule "B" property is a family business being run by defendant No. 1 on behalf of the joint family, as such, the defendant No. 1 was liable to give accounts in respect of the business carried on in the plaint "B" schedule property from the year 1980 and he (plaintiff) is entitled for 1/4th share in respect of "B" schedule property also. 3. The defendant No. 1 (appellant herein) contested the matter by filing written statement. Though he admitted that suit schedule "A" property was purchased by their father Sri V.C.V. Chellam, but, it was specifically contended by defendant No. 1 that in the year 1989, when the family members met and decided, including the plaintiff, that the defendant No. 1 shall become the absolute owner and nobody else had a right over the said suit schedule property as the defendant No. 1 redeemed the three mortgages made by his father V.C.V. Chellam pertaining to "A" schedule property, accordingly, the plaintiff and other family members signed the document for changing katha in the name of the defendant no. 1. After changing the katha, the defendant No. 1 put up construction of the first floor and allowed the plaintiff to reside in the same. 1. After changing the katha, the defendant No. 1 put up construction of the first floor and allowed the plaintiff to reside in the same. With respect to "B" schedule property is concerned, it was the contention of defendant No. 1 that the business in name of the M/s. Electric and General Engineering Company, though was being run by Sri V.C.V. Chellam i.e. their father, but, the business was stopped in "B" schedule property in the year 1977. Thereafter, their father Sri V.C.V. Chellam expired in the year 1980. From the year 1977 onwards, one Mr. N. Nagaraj was doing the business in "B" schedule property, who was dispossessed by the defendant No. 1 and took possession as an obstructors in possession in the year 1982 as recorded in the order sheet in Execution No. 353/1977. The defendant No. 1 denied the averment that he was doing business in "B" schedule property on behalf of joint family. Further, the defendant No. 1 contended that all the loans availed by Sri V.C.V. Chellam by mortgaging plaint "B" schedule property were repaid by the defendant No. 1, who also cleared the hospital bills and conducted the ceremonies of the father and mother. The marriage of the plaintiff was also conducted by the defendant No. 1 out of his own earnings and has taken care of the plaintiff for about two years during ITC Companies strike period in which Company the plaintiff was working. With this the defendant No. 1 contended that the plaintiff has no share in the suit schedule property and prayed for dismissal of the suit. 4. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff proves that schedule "A" property is the joint family property of plaintiff and defendants and schedule "B" is the joint family business? 2. Whether first defendant proves that he has become the absolute owner of schedule "A" property? 3. Whether the plaintiff is entitled for partition? If so, what is the extent of his share? 4. Whether defendant No. 1 is liable to render account of schedule "B" business? 5. Whether the plaintiff is entitled for the relief of permanent injunction? 6. What order or decree? In order to prove his case, the plaintiff got himself examined as PW-1 and got marked documents from Exs.P-1 to P-7. 4. Whether defendant No. 1 is liable to render account of schedule "B" business? 5. Whether the plaintiff is entitled for the relief of permanent injunction? 6. What order or decree? In order to prove his case, the plaintiff got himself examined as PW-1 and got marked documents from Exs.P-1 to P-7. The defendant No. 1 was examined as DW-1 and his son R. Sai Murali, as DW-2 and the documents from Exs.D-1 to D-31 were marked. 5. After hearing both side, the trial Court after answering Issue Nos. 1, 3 and 4 in the affirmative and issue Nos. 2 and 5 in the negative, decreed the suit of the plaintiff, holding that he is entitled for partition and separate possession of his 1/4th share in the "A" schedule property. It was also held that plaintiff was also entitled for 1/4th share in the schedule "B" business. The defendant No. 1 was held liable to render account of the said business. Defendant No. 2 and legal representatives of defendant No. 3 were held entitled for their 1/4th share from the suit schedule "B" business. It is against the said judgment and decree, the defendant No. 1 has preferred the present appeal. 6. Lower Court records were called for and the same are placed before this Court. 7. Heard the arguments of the learned counsel for the appellant and the learned counsel for respondent No. 1 and perused the materials placed before this Court. 8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 9. During the course of the argument, learned counsel from both side made a submission that the plaintiff in the trial Court, who is respondent No. 1 in this appeal, will have no objection to set aside the decree of the trial Court with respect to suit schedule "B" business, with respect to which, the trial Court had directed defendant No. 1 to render the accounts of the said business. On the other hand, the said defendant No. 1 in the trial Court, who is the appellant herein, would not have any claim with respect to suit schedule "B" business as against the plaintiff (respondent No. 1 herein). The said submission made jointly by both the learned counsels is taken on record. On the other hand, the said defendant No. 1 in the trial Court, who is the appellant herein, would not have any claim with respect to suit schedule "B" business as against the plaintiff (respondent No. 1 herein). The said submission made jointly by both the learned counsels is taken on record. As such, the scope of the appeal was confined and limited only to suit schedule "A" property. 10. In the light of the above, the only point that arise for my consideration is: Whether the judgment and decree passed by the trial Court with respect to suit schedule "A" property deserves to be set aside and the suit of the plaintiff deserves to be dismissed? The plaintiff who got himself examined as PW-1, in his examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by him in his plaint. He has stated that himself and the defendants are own brothers and sisters and their father Sri V.C.V. Chellam, during his life time, has purchased suit schedule "A" property and also started business under the name and style of M/s. Electric and General Engineering Company as described in suit schedule-B. After his father's life time, defendant No. 1 being the elder member of the family has been looking after the said business. The witness has further stated that the defendant No. 1 was not giving any accounts of the business to the family. At his instance, for the loan of Rs. 2,25,000/- raised by him from the Central Bank of India in the year 1990, the plaintiff stood as a guarantor. The said loan was taken for "B" schedule property business purposes. He also stated that defendant No. 1 borrowed one more loan from Indian Overseas Bank, Indiranagar Branch, for which also, he (plaintiff) stood as a guarantor. After the death of their father on 25.9.1980, the parties to the suit succeeded to both plaint schedule "A" and "B" properties. In the ground floor of plaint "A" schedule property, in the northern side, he is residing and defendant Nos. 1 and 2 have been residing on the southern portion which forms major portion of the schedule property. Stating that defendant No. 1 who is in an advantageous position is not willing to effect the partition of the property, the plaintiff has prayed that the suit be decreed as per the prayer made in the plaint. 1 and 2 have been residing on the southern portion which forms major portion of the schedule property. Stating that defendant No. 1 who is in an advantageous position is not willing to effect the partition of the property, the plaintiff has prayed that the suit be decreed as per the prayer made in the plaint. Even in his cross-examination, he adhered to his original version. 11. In support of his contention, PW-1 produced and got marked a certified copy of the Release Deed at Ex.P-1, two Encumbrance Certificates at Exs.P-2 and P-3, a sketch said to be of "A" schedule property at Ex.P-4, a letter regarding arrears of rent at Ex.P-5, an affidavit said to have been sworn by defendant No. 1 and filed in O.S. No. 8827/1998 at Ex.P-6, a copy of the written statement said to have been filed by defendant No. 1 in O.S. No. 16707/2002 at Ex.P-7. 12. The defendant No. 1 V. Rajakumar, got himself examined as DW-1. He has not disputed the relationship between the parties and also that the suit schedule "A" property was self-acquired property of their father late Sri V.C.V. Chellam, who expired in the year 1980. Though he has also stated that said Sri V.C.V. Chellam was doing the business in suit schedule "B" property, but, further stated that said Sri. V.C.V. Chellam stopped his business in "B" schedule property in the year 1977. As such, from the year 1977, one Sri N. Nagaraj was doing the business in "B" schedule property, the possession of which was taken over by him (defendant No. 1) during the year 1982 as an obstructor in Execution No. 353/1977. Thereafter, he has been continuously carrying on the business in the schedule "B" property independently. With respect to suit schedule "A" property, the witness has stated that, though the said property is the self-acquired property of their father later Sri V.C.V. Chellam, but, he (defendant No. 1) has cleared three mortgages and also the loan taken by his late father Sri V.C.V. Chellam. He has given the details of about nine loans said to have been cleared by him amounting a total sum of Rs. 1,35,500/-. Stating so, the witness has stated that from out of the said amount cleared by him, the plaintiff share comes to Rs. He has given the details of about nine loans said to have been cleared by him amounting a total sum of Rs. 1,35,500/-. Stating so, the witness has stated that from out of the said amount cleared by him, the plaintiff share comes to Rs. 33,875/-, which amount the plaintiff is liable to pay along with compounding interest at the rate of 18% p.a. He further stated that he has performed the marriage of the plaintiff at his expenses and also borne the entire expenses towards the hospital charges when his father and mother were ill. The witness also stated that though the plaintiff is residing in a portion of the suit schedule "A" property, the whole portion cannot be allotted to him and the plaintiff's claim is only 1/4th share subject to he discharging and paying the mortgaged money and loans paid by him and water and electricity charges. He has quantified the expenses at Rs. 78,300/- towards electricity, water charges and house maintenance. Adding the recurring interest on the alleged due said to be payable by the plaintiff, the defendant No. 1 in his evidence also stated that plaintiff is liable to pay a sum of Rs. 13,46,463.43 paise along with interest. He further stated that, he renovated the whole building and constructed the first floor in the building at a cost of Rs. 10 lakhs and the whole money towards the same was spent by him. 13. In his support, he produced and got marked a copy of katha certificate of schedule "A" property at Ex.D-1, a "No Objection Certificate" said to have been given by the plaintiff for transfer of katha at Ex.D-2, an endorsement with respect to katha at Ex.D-3, Release Deed said to have been executed by defendant Nos. 2 and 3 in favour of defendant No. 1 at Ex.D-4, two affidavits of defendant Nos. 2 and 3 in favour of defendant No. 1 at Ex.D-4, two affidavits of defendant Nos. 2 and 3 at Exs.D-4(a) and D-4(b), an acknowledgement said to have been issued by Bharathi Nagar police station at Ex.D-5, copy of the police complaint at Ex.D-6, a letter dated 21.5.2009, issued by Central Bank of India towards the clearance of loan at Ex.D-7, a copy of the written statement said to have been filed by the present plaintiff as 4th defendant in that suit in O.S. No. 8827/1998 at Ex.D-8, a copy of the affidavit in the same suit said to have been filed by the plaintiff herein at Ex.D-9, four Encumbrance Certificates with respect to suit schedule "A" property from Exs.D-10 to D-13, a Certificate of Enrolment issued under Karnataka Tax on Professions, Trades, Callings and Employments Act, 1976, at Ex.D-14, a receipt towards renewal payment issued by Senior Labour Inspector, Bengaluru, at Ex.D-15, Form-C with respect to suit schedule "B" business at Ex.D-16, Certificate of Registration with the Commercial Tax Department, showing the name of the defendant No. 1 with respect to suit schedule "B" property at Ex.D-17, letter addressed by the Electric and General Engineering Company i.e. "B" schedule establishment, to the Commercial Tax Department at Ex.D-18, two receipts towards the alleged clearance of loan at Exs.D-19 and D-20, the Mortgage Deed at Ex.D-21, a copy of the affidavit of Sri V.C.V. Chellam said to have been filed in Execution No. 279/1978 at Ex.D-22, the photographs with negatives from Exs.D-23 to d-28(a) and an Invoice towards photographs and CD charges at Ex.D-29, a Telephone bill of suit schedule "B" business establishment and its receipt at Exs.D-30 and D-31. 14. In the light of the above evidence of the parties, it was the argument of learned counsel for the appellant/defendant No. 1 that the written statement filed by the plaintiff as defendant No. 4 in O.S. No. 8827/1998, which is marked at Ex.D-8 shows that he was financially not sound, whereas, defendant Nos.1 to 3 had sufficient funds. The said written statement also shows that defendant Nos.1 to 3 were doing separate business, as such, it go to show that neither there was any joint family business nor the plaintiff was capable of assisting family financially in any manner. The said written statement also shows that defendant Nos.1 to 3 were doing separate business, as such, it go to show that neither there was any joint family business nor the plaintiff was capable of assisting family financially in any manner. Referring to photographs from Exs.D-23 to D-28, learned counsel further submitted that those photographs depict the old structure of the house of suit schedule "A" property to the present structure, which also includes newly constructed portion of the property. Vehemently denying that there was joint family business subsequent to the year 1977, learned counsel further stated that plaintiff has not denied that defendant No. 1 had spent a sum of Rs. 10 lakhs in renovation of suit schedule "A" property and putting up a new construction in a portion of it. Referring to the receipt at Exs.D-19 and D-20 and a Mortgage Deed at Ex.D-21, learned counsel further stated that all those mortgage amounts were cleared by defendant No. 1 himself. As such, the plaintiff before claiming the share in the suit schedule "A" property, is required to contribute his share in the expenses incurred by the defendant No. 1. In that regard, he relied upon a judgment of Hon'ble Apex Court in Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh and Others, (1954) SCR 177. He also relied upon the judgment of Andhra Pradesh High Court in Syed Ale Mossa Raza and Others vs. Razia Begum and Others, AIR 2003 A.P. 2 . Relying upon another decision of Andhra Pradesh High Court in R.B. Bharatha Charyulu vs. R.B. Alivelu Manga Thayaru, AIR 1996 A.P. 238 , learned counsel for the appellant also submitted that when defendant No. 1 has made improvements in suit schedule "A" property, the plaintiff who claims a share in it should contribute towards the expenses incurred by defendant No. 1 in improving the property. 15. Learned counsel for the respondent/plaintiff in his argument submitted that, admittedly the plaintiff was working in ITC Company. As such, his entire salary he was giving it to the joint family for its necessities. Ex.P-6 is an affidavit filed by the defendant No. 1 in a suit filed against him by the Banker, wherein it is clearly stated that the mortgage was cleared by their deceased father Sri V.C.V. Chellam. As such, his entire salary he was giving it to the joint family for its necessities. Ex.P-6 is an affidavit filed by the defendant No. 1 in a suit filed against him by the Banker, wherein it is clearly stated that the mortgage was cleared by their deceased father Sri V.C.V. Chellam. He further stated that the alleged expenses said to have been incurred by defendant No. 1 in alleged improvement of the property is from out of the income of the Firm at suit schedule "B" business and that the alleged development made in the property is only with respect to that portion of the suit schedule "A" property in which defendants are residing, but, not the plaintiff. With this, he submitted that the plaintiff being joint owner of suit schedule "A" property, is entitled for the share as claimed in the plaint which was properly appreciated by the Court below and accordingly, decreed the suit. 16. After going through the pleadings and evidence of the parties in the matter and hearing the arguments of learned counsel from both side, the undisputed facts that can be noticed in this matter are (a) that plaintiff and defendants are the children of late Sri V.C.V. Chellam, (b) suit schedule "A" property is the self-acquired property of said Sri V.C.V. Chellam, who had purchased the same under a registered Sale deed dated 29.4.1944, (c) the business in "B" schedule property was also started by said Sri V.C.V. Chellam, (d) Sri V.C.V. Chellam died intestate on the date 25.9.1980 leaving behind the plaintiff and the defendants as his sole surviving heirs. 17. It is in the light of the above undisputed facts, the plaintiff's contention is that as one of the successor to the estate of his deceased father, the plaintiff is entitled for 1/4th undivided share in the joint family property of his deceased father Sri V.C.V. Chellam along with the defendants who are his brother and sisters. 17. It is in the light of the above undisputed facts, the plaintiff's contention is that as one of the successor to the estate of his deceased father, the plaintiff is entitled for 1/4th undivided share in the joint family property of his deceased father Sri V.C.V. Chellam along with the defendants who are his brother and sisters. On the other hand, the defendant No. 1 who admits that plaintiff is one of the legal heirs of deceased Sri V.C.V. Chellam, but, contends that the defendant No. 1 has invested considerable amount with respect to suit schedule "A" property for getting the mortgages released and for alteration and renovation of the building, as such, in a meeting held between the family members, it was agreed that entire suit schedule "A" property should go to the share of defendant No. 1. In the alternative, it is also the argument from the appellants side that if the Court decides to confirm the partition, granting 1/4th share in suit schedule "A" property to the plaintiff, in which event, the plaintiff must be asked to contribute proportionately in the expenses incurred by defendant No. 1 towards suit schedule "A" property in releasing mortgages and alteration of the property. 18. An attempt was made in the cross-examination of PW-1 from the defendants side to show that the plaintiff was financially not in a sound position and that it was defendant No. 1 who has incurred expenses towards suit schedule "A" property. The plaintiff as PW-1 has stated that, having completed his Civil Engineering Diploma course, at the relevant point of time, he was working as a Drawing (to be read as Draftsman) in ITC Company at Bengaluru. The witness has admitted in his cross-examination that his father had availed few loans and stated that in order to clear those loans, he had sold two portions of the house property, one on the front side and another on the rear side. The witness has even admitted that, with respect to suit schedule "A" property, three mortgages were created. However, the witness has also stated that all those mortgages were redeemed during the life time of his father. 19. Throughout, in his cross-examination, the witness has stated that redemption of mortgages and clearing of loans were from out of the income received from the business shown in suit schedule "B" property. However, the witness has also stated that all those mortgages were redeemed during the life time of his father. 19. Throughout, in his cross-examination, the witness has stated that redemption of mortgages and clearing of loans were from out of the income received from the business shown in suit schedule "B" property. He specifically denied a suggestion made to him that it was defendant No. 1 alone who was the sole owner of suit schedule "B" property after the death of their father Sri V.C.V. Chellam. For a suggestion, PW-1 has stated that he does not know whether defendant No. 1 has spent Rs. 10 lakhs for the construction of the first floor of suit schedule "A" property. Though he admitted a suggestion as true that the alteration in the said property was made by defendant no. 1, but, specifically stated that he has effected it from out of the income received from joint family business. The Release Deed at Ex.P-1, which is admitted by the defendants, go to show that defendant Nos. 2 and 3, who are sisters of plaintiff and defendant No. 1, have released, relinquished renounced and given up their undivided share together with their right, title and interest in favour of defendant no. 1 Sri V. Rajakumar. Therefore, the shares, if any, falling to the part of defendant Nos. 2 and 3, would go to defendant No. 1. 20. Ex.P-2, which is an Encumbrance Certificate for the period from 1.4.1940 to 20.4.1991, go to show that with respect to property possessed, Sri V.C.V. Chellam had created about four mortgages and three of them were cleared during his life time only and by himself. Ex.P-6 go to show that the present defendant No. 1 in his affidavit filed in O.S. No. 8827/1998, has stated on oath that all the debts shown in the said affidavit which were due on the schedule property were redeemed during the life time of his father Sri V.C.V. Chellam. Hence, the schedule property was free from all encumbrances. 21. The defendant No. 1 as DW-1 in his cross-examination was confronted with his said affidavit at Ex.P-6, which he has not denied, but, only stated that he does not remember about his statement made in the said affidavit. Hence, the schedule property was free from all encumbrances. 21. The defendant No. 1 as DW-1 in his cross-examination was confronted with his said affidavit at Ex.P-6, which he has not denied, but, only stated that he does not remember about his statement made in the said affidavit. Though the witness stated that he had got some of the mortgages redeemed with respect to suit schedule "A" property, but, himself has stated in his cross-examination that, except his oral statements, he has not produced any documents to show that those mortgages were got redeemed by him. Even though he has produced two receipts at Exs.D-19 and D-20 stating that the amount mentioned therein, which is at Rs. 500/- and Rs. 5,000/- respectively, were paid by him towards clearance of loans and redemption of mortgages, but, since those documents were specifically denied, in the absence of any specific recital in the receipt that the amount mentioned therein were paid by defendant No. 1, it cannot be accepted that the amounts mentioned therein were paid by defendant No. 1 out of his personal income towards the clearance of loan and redemption of mortgage. The same reasoning applies with respect to document at Ex.D-21 also, which is another transaction of mortgage. Moreover, the said document also shows an endorsement made with respect to redemption of mortgage by receipt of the consideration thereunder on 17.9.1980 i.e. prior to the death of Sri V.C.V. Chellam, but, it does not mention anywhere that the said redemption was by defendant No. 1. Therefore, merely because defendant No. 1 being the eldest male member in the family and kartha of the family, after the death of Sri V.C.V. Chellam, is said to have been in possession of those documents and produced them in the Court below, by that itself, it cannot be inferred that he has cleared the loans and redeemed the mortgages mentioned in those documents. It is also because the plaintiff has denied that it was defendant No. 1 who has cleared those loans and redeemed the mortgages from out of his individual income. 22. Merely because in an affidavit filed in Execution No. 279/1978, a copy of which is marked at Ex.D-22, the deceased Sri V.C.V. Chellam is shown to have stated in the Execution Case filed against him that his income does not exceed Rs. 200/- per month or Rs. 22. Merely because in an affidavit filed in Execution No. 279/1978, a copy of which is marked at Ex.D-22, the deceased Sri V.C.V. Chellam is shown to have stated in the Execution Case filed against him that his income does not exceed Rs. 200/- per month or Rs. 2,400/- per year as on 23.10.1978, by that itself, it cannot be inferred that he had no capacity to redeem the mortgages or clear his loans. This finding gains more support because of the undisputed fact that said Sri V.C.V. Chellam had sold two portions of his immovable property during his life time to clear his loan liabilities. Therefore, in the absence of any documentary evidence to show that defendant No. 1 had cleared those loans and redeemed mortgages from out of his individual income, his disputed oral evidence that he had cleared those loans and mortgages from out of his income, cannot be taken as proved. 23. It is also the contention of defendant No. 1 that he had cleared a loan to an extent of Rs. 1,35,500/- said to have been made by their father Sri V.C.V. Chellam. He has named nine persons in his affidavit filed in the form of examination-in-chief, showing the quantum of loan said to have been availed from them by his father. In view of the fact that the said statement has been denied from the plaintiff's side and in the absence of any documentary evidence or corroborative evidence to support the said contention of DW-1, it has to be necessarily taken that defendant No. 1 could not able to prove his statement of he clearing the loans of his father. The defendant No. 1 has also stated that a meeting was held between the parties to the suit prior to filing of the suit, in which, it was agreed that considering the contribution made by defendant No. 1 to the improvement of the property, his brothers and sisters, including the plaintiff, had agreed to give away their right in the property in favour of defendant No. 1. The said statement is disputed by the plaintiff. Here also, the defendant No. 1 except making that statement, has not produced any corroborative evidence to support his contention. Even though he has examined his son as DW-2, but, the evidence of DW-2 is in no way helpful to DW-1 on the point. The said statement is disputed by the plaintiff. Here also, the defendant No. 1 except making that statement, has not produced any corroborative evidence to support his contention. Even though he has examined his son as DW-2, but, the evidence of DW-2 is in no way helpful to DW-1 on the point. He being the son of DW-1, has supported the contentions of his father without he being the first hand informant about the facts or a participant in the alleged incidents. As such, the said contention of defendant No. 1 that in the meeting between the family members, they had given the entire right in the suit schedule properties in his favour has also not been established. 24. The defendant No. 1 has produced a Katha certificate with respect to suit schedule property issued by the then Corporation of the City of Bengaluru at Ex.D-1, a "No Objection" letter said to have been written by the plaintiff to the Revenue Officer of the said Corporation stating his no objection for transferring katha in the name of defendant No. 1 at Ex.D-2 and an endorsement by the said Corporation about transferring the katha in the name of defendant No. 1 at Ex.D-3, These three documents are not disputed. But, merely because the katha of the property of the deceased father is transferred in the name of eldest member in the family among the successors, by that itself, it cannot be held that the property was given away to the said member by the other members in the family or that there was any transfer in the title of the property in favour of the katha holder. Therefore, those documents also would not come to the benefit of the defendant No. 1 to show that he is the sole successor to the suit schedule properties. 25. Therefore, those documents also would not come to the benefit of the defendant No. 1 to show that he is the sole successor to the suit schedule properties. 25. When the above analysis go to show that defendant No. 1 could not able to show that the suit schedule "A" property has been given to his share or that he is entitled for the entire share, On the other hand, the very same witness in his examination-in-chief in the form of affidavit evidence, at Para-12, has stated that the fact that plaintiff is residing in a portion of suit schedule "A" property, would not allow him to claim whole portion exceeding 1/4th, however, subject to he discharging and paying the mortgaged money and the loans by him (DW-1) and water and electricity charges. The said witness in his cross-examination has stated that, in his examination-in-chief, he has admitted that plaintiff is entitled for 1/4th share in suit schedule "A" property. Therefore, though defendant No. 1 has admitted that plaintiff is entitled for 1/4th share in suit schedule "A" property, but, he has put a rider that the plaintiff's entitlement would be subject to he contributing his portion in the expenses said to have been incurred by defendant No. 1 in clearing the loans and discharging the mortgages. However, as already analysed above, the defendant No. 1 could not able to establish that he had cleared any loans or redeemed any mortgages from out of his personal/individual income. Thus, in view of of defendant No. 1 failing to show that he has spent his personal income or money towards the betterment of the family property, his condition that the plaintiff should clear his 1/4th proportion of liability would not deprive the plaintiff from claiming his 1/4th share in the suit schedule "A" property. 26. Lastly, the argument of learned counsel for the appellant was that, defendant No. 1 has incurred an expenses of Rs. 10 lakhs in renovating the suit schedule "A" property and putting up a portion of construction in it, as such, the plaintiff is required to contribute his portion in the said expenses before claiming share in the property. Learned counsel relied upon the photographs and their negatives at Exs.D-23 to D-28 (a). 10 lakhs in renovating the suit schedule "A" property and putting up a portion of construction in it, as such, the plaintiff is required to contribute his portion in the said expenses before claiming share in the property. Learned counsel relied upon the photographs and their negatives at Exs.D-23 to D-28 (a). No doubt, those photographs shows an old building in Exs.D-23 to D-26 and a portion of the new building in Exs.D-27 and D-28, It is not in dispute that the very portion of the old building was demolished and a new construction was put up. However, by that itself, it cannot be inferred that the expenses incurred in the said renovation of the building or construction of a portion of it was incurred by defendant No. 1 from out of his individual/personal income. The plaintiff has categorically denied the suggestion made to him in his cross-examination from the defendants side on this point. Therefore, it was necessitated for the defendant No. 1 to produce corroborative evidence and documentary evidence giving the details of the expenses incurred by him and to show that those expenses were met by him from out of his personal/individual income. In the absence of defendant No. 1 placing any material on record to show as to what was his income at any particular point of time, but, on the contrary, his own evidence, both oral and documentary, would go to show that he himself had availed a loan from Central Bank of India (as per Ex.D-7) for the business purposes, would raise a doubt that he had any personal income to invest for the improvement of the family property. Therefore, the argument of learned counsel for the appellant on the said point that it was the defendant No. 1 who had invested for renovation/alteration of the house property is also not acceptable. 27. The learned counsel for the appellant while submitting his argument that plaintiff is liable to contribute proportionately towards the expenses incurred for the betterment of the suit schedule "A" property, has also relied upon few judgments in his support. 27. The learned counsel for the appellant while submitting his argument that plaintiff is liable to contribute proportionately towards the expenses incurred for the betterment of the suit schedule "A" property, has also relied upon few judgments in his support. In Sidheshwar Mukherjee's case (supra) the Hon'ble Apex Court in Page-182, was pleased to observe that, the question whether the sons of defendant No. 1 were liable in law to discharge the decreetal debt due by their father could be answered only with reference to the doctrine of Mitakshara law which imposes a duty upon the descendants of a person to pay the debts of their ancestor provided they are not tainted with immorality. However, the Hon'ble Apex Court in the very same judgment, in the very same paragraph, has further pleased to observe that, the doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions. Under the law, as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets; it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. In Syed Ale Mossa Raza's case (supra), while dealing with Section 51 of the Transfer of Property Act, the Hon'ble Apex Court was pleased to observe at Paragraph-32(c) of its judgment that the plaintiff by his acts and omission acquiesces in the acts of constructions or improvements by the defendant and permits the defendant to undertake the same over the plaintiff's property, in such a case, the defendant would have right to require the plaintiff to elect to have value of the constructions or require plaintiff to sell their interest in the property to the defendant. In R.B. Bharatha Charyulu's case (supra), which was also relied upon by the learned counsel for the appellant in his argument, with respect to Section 51 of the Transfer of Property Act, the Andhra Pradesh High Court was pleased to observe that where the plaintiffs having title over the suit land and the defendants making the construction over it in bona fide belief that they had valid title over the land, but, defendants not establishing nor pleading necessary ingredients of Estoppel, then Section 51 gets squarely attracted. The defendants will have right to require plaintiffs to elect to have value of constructions or require plaintiffs to sell their interest in property to defendants. 28. After going through all the three above observed judgments and after applying the principles laid down in those judgments to the case on hand, the only observation that can be made is that the defendant No. 1 might have had a right to claim proportionate contribution from the plaintiff towards the expenses incurred in improving the suit schedule "A" property, provided the defendant No. 1 could able to establish that the alleged expenses were met by defendant No. 1 from out of his individual or personal income. As already observed above, since the defendants, more particularly, defendant No. 1, who is the contesting defendant, has failed to establish that the alleged expenses said to have been made with respect to the alleged improvement to suit schedule "A" property was met by himself from out of his personal income, then, none of the above judgments, including Section 51 of the Transfer of Property Act would come to his favour in demanding the proportionate contribution from the plaintiff. Thus, the last phase of the argument of the learned counsel for the appellant that even though plaintiff is entitled for 1/4th share in the suit schedule "A" property, but, before claiming his share, the plaintiff ought to have contributed proportionately to the expenses incurred for the improvement of the property, cannot be accepted. 29. As such, since all the points of the arguments raised by the appellant could not able to convince this Court and establish that there was any error in the judgment and decree under appeal warranting any interference by this Court and no grounds are made out to set aside the judgment and decree granting 1/4th share in suit schedule "A" property to the plaintiff, I do not find any reason in interfering in the judgment and decree under appeal with respect to suit schedule "A" property. However, as already observed above, since the parties have made a submission on 20.06.2019, which has been recorded in the proceedings sheet, whereunder the plaintiff has submitted his no objection to set aside the decree of the trial Court with respect to suit schedule "B" business, with respect to which, the trial Court had directed the defendant No. 1 to render the accounts of the said business and on the other hand, the defendant No. 1 in the trial Court i.e. the appellant herein had undertaken that he would not have any claim with respect to suit schedule "B" business as against the plaintiff, the judgment and decree under appeal is liable to be set aside with respect to liability of the defendant No. 1 to render accounts of suit schedule "B" business. It is for this limited extent only, the Appeal deserves to be allowed in part. 30. Accordingly, I proceed to pass the following order: ORDER: The Appeal is allowed in part. The judgment and decree dated 14.01.2011 passed by the learned XXVIII Addl. City Civil Judge, Mayo Hall, Bengaluru, in O.S. No. 16483/2001, with respect to holding the defendant No. 1 before it (appellant herein) as liable to render the accounts of suit schedule "B" business alone is set aside. The other part of the judgment and decree, including the plaintiff's entitlement for partition and separate possession of his 1/4th share in suit schedule "A" property is confirmed. Draw modified decree accordingly. The refund of the Court fee to the appellant would be in accordance with law. The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.