9911796707
TMI Blog2021 (12) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the suit schedule property or from creating any encumbrances/charges thereon, for costs of the suit and further grant such other or further reliefs as this Court deems fit in the facts and circumstances of the case. 4. The sum and substance of the plaint is that Shri. Kumaran Nair, is the father of the plaintiff and the first defendant is the mother of the plaintiff and defendant Nos.2 to 4. The said Kumaran Nair passed away on 07.08.1987. 5. It is the contention of the plaintiff that his father - Kumaran Nair and he himself had jointly acquired the suit schedule property and the said property was got registered in the name of the mother i.e., first defendant. The father was working at Kolar Gold Fields in the beginning and later on was working at the Police Department. It is also the claim of the plaintiff that he had also contributed funds to improve the property, which Kumaran Nair, as Kartha of the family, had acquired. The suit schedule property is the property of Hindu Undivided property. Hence, he claims the share. 6. Defendant Nos.1 to 3 i.e., mother and two brothers have filed their written statement contending that Kumaran Nair retired from the service in the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of agreement Rs. 1,250/- was paid and thereafter the appellant was paid a sum of Rs. 500/- on 03.07.1974 and on 14.10.1974 paid remaining Rs. 500/- and got registered the site in the name of the mother on 30.10.1974. It is an admitted fact that when the site was registered in the name of the mother she was a housewife and Kumaran Nair and the plaintiff are the only earning members in the family and defendant Nos.2 to 4 are the minors, and it is clearly admitted in their legal notice that after selling the site situated at Suddaguntapalya, the suit schedule property was built. The non-consideration of this important material on record resulted in failure of justice. 11. The Trial Court also committed an illegality in not considering Ex.P2-LIC proposal form dated 26.06.1975 to establish that the plaintiff is in the joint family and he was not married at that time and he made the first defendant his mother as his nominee in the LIC form and it is not disputed by the defendants that the plaintiff was in joint family. Under the circumstances, the Trial Court ought to have decreed the suit of the plaintiff. 12. The Trial Court has committed a grave mistake in not considering the joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agreement dated 30.10.1973 in which an advance amount was paid by the father and an agreement was also in the name of the father. But subsequently, the property was purchased in the name of the mother. Ex.P3 also not considered, wherein, the mother herself has admitted out of the retirement benefit of the father, the house was constructed and also not considered the payment made by the plaintiff in favour of the vendor in the month of August itself and subsequently the Sale Deed was executed by the Vendor. Out of the sale consideration of Rs. 2,250/-, an advance amount of Rs. 1,250/- was paid in terms of Ex.P1 and all these aspects have not been considered by the Trial Court. 16. The learned counsel appearing for the respondents/defendants would vehemently contend that the Trial Court has considered each and every material available on record and particularly the document - Ex.D1 and not committed any error in dismissing the suit and rightly comes to the conclusion that there is no any contribution on the part of the plaintiff and the plaintiff failed to prove his contention before the Trial Court. 17. The learned counsel appearing for the appellant filed an application i.e., I.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the daughter as respondent No.5 in the appeal. In support of this application, the appellant has contended that the proposed respondent - Smt.Prabhavathi as his sister and she derives right and interest in the suit schedule property. By over sight, she was not made a party to the suit and in this appeal. When the same is noticed, she was advised to file necessary application and accordingly the application is filed to implead his sister as party to the proceedings. 23. Having heard the respective counsel and on perusal of the material, it is clear that the first defendant - mother is also no more and she also passed away on 24.08.2017 and this application is filed prior to death of the mother and the reasons assigned in the application that by oversight she was not made as a party to the proceeding. It has to be noted that the appellant claims that the suit schedule property belongs to the joint family and other respondents have also not disputed the fact that she is not the daughter of Kumaran Nair and also the first defendant - Thangamma. When the suit is filed for the relief of partition and separate possession, the appellant ought to have made her a party to the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the parties only whether the suit schedule properties are the joint family properties or not even if any documents are created during the pendency of the appeal that will not take away the case of the appellant/plaintiff. While allowing the application filed under Order 41 Rule 27 read with Section 151 of CPC, the Court has to be kept in mind whether those documents are necessary to adjudicate the issues involved between the parties. I have already pointed out that the issue involved between the parties is whether the plaintiff is entitled for the relief of partition in proving the suit schedule property is the joint family property or not. Hence, I do not find any ground to allow the application filed Order 41 Rule 27 read with Section 151 of CPC permitting him to produce the additional documents. Hence, I answered point No.2 as 'negative'. Point No.(iii): 26. It is the contention of the plaintiff before the Trial Court that he himself and his father acquired the suit schedule property in the name of the first defendant - mother. On the other hand, it is the contention of defendant No.1 along with other defendants that it is the exclusive property of defendant No.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same has been compromised. Except the account book he had no other document to show his contribution towards the cost of construction of suit house. Suit building was completed in the year 1978. 28. In support of his contention also, he examined one witness P.W.2. In his evidence, he says that he came to know the plaintiff in the year 1978 and he had requested him to construct a house for him. He had agreed. In the same year construction was commenced and it was closed in the year 1979. The plaintiff has occupied newly built house in 1979. Plaintiff was supplying building materials and paying labour charges. After two months, construction of first floor was commenced. The plaintiff has taken assistance of others for the construction. He was subjected to cross-examination. 29. In the cross-examination, he admits that he had no documents to show that the suit schedule house was constructed by him. He also admits that the house was constructed without the help of a plan. He was a building contractor. He admits that in respect of BDA sites, buildings will be constructed only on the basis of a plan. He has not maintained any account regarding payment received in respect of the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he was also residing at Madivala. 32. On the other hand, the defendants had examined D.W.1 i.e., mother of the plaintiff and she also in her evidence reiterated that the plaintiff is not residing in the family from the year 1972 onwards. There was some property given by her mother in her native place and the said property was sold and out of the sale proceeds, she has purchased the suit schedule property. The ground floor was constructed by herself and her children and the remaining portion was also constructed by herself and her children by borrowing loans. In the evidence, it is stated that the contents of Ex.P3 is not correct. D.W.1 got marked the documents as Exs.D1 to D7. She was subjected to cross-examination. 33. In the cross-examination, she admits that she cannot say the survey number of the property which she was purchased. But the same was purchased from one Reddy. It is suggested that an agreement was entered in respect of the purchaser of the said property and the said suggestion was denied. It is suggested that the agreement was entered on 30.10.1973. It is elicited that the plaintiff joined the Police Department during 1972 January approximately. It is elicite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferred from KGF to Bengaluru but claims that his mother paid the sale consideration. But he was not present at the time when his mother paid the money to Krishnappa Reddy. He does not know anything about the agreement entered into between his father and owner of Suddaguntepalya property. He also does not know whether the plaintiff had contributed any funds to purchase the suit property and also he was not present when payment was made to Krishnappa Reddy. A question was put to him that the plaintiff had paid Rs. 500/- to the Vendor and the witness refuses to look to the said passbook to give answer and closed his eyes. He admits that his father attained superannuation in the year 1977. He admits that Ex.P5 is a group photo of their family. The plaintiff got married in the year 1980. But he claims that the photo was taken at V.V. Puram at the time of reception. In the said photo, his mother is also there. He admits that he had not contributed any funds to purchase Suddaguntepalya property. He admits that during the pendency of the suit a loan was raised from the Bank. 37. The other witness is one Advocate, who is examined as CW.1, he deposed that he only translated the depositions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut though the defendants have denied the same, P.W.3 also says that he had purchased one site. Hence, he requested the plaintiff to purchase the site. No doubt, the Sale Deed was executed in the name of Defendant No.1 - mother. In terms of Ex.P1, the sale consideration was fixed at Rs. 2,250/- and out of that Rs. 1,250/- was paid as advance and the balance amount payable is only Rs. 1,000/-. No doubt, the defendants also claim that defendant No.1-mother, who had got the property at her native place also sold the property but the fact is that before registration of the document, the sale agreement was entered into in the name of the father is clear that the sale agreement was entered into between the father and the vendor, but the defendants have not produced any sale agreement. It is not their case that directly sale deed was executed and the said sale deed is consequent upon the earlier sale agreement and the Trial Court also failed to take note of the document-Ex.P1. 41. It is also important to note that in terms of Ex.P3, notice was given under the instructions of defendant No.1 on 23.06.1988 claiming that the site at Sudduguntepalya was purchased by her selling her property si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese are the materials falsifies the case of the defendants and all the documents - Exs.P1 to P5 support the claim of the plaintiff. The plaintiff also relied upon the document - Ex.P2 - LIC Proposal Form, which was taken in the year 1974, wherein, his mother was made as nominee but mother claims that from the year 1972 onwards, her son is not residing along with them and no explanation on the part of D.W.1 making her as nominee in the said LIC Proposal Form in the year 1974, subsequent to he has joined the Police Department in the year 1972. It is admitted that he had joined the Police Department in 1972 itself and construction was done in 1978-79 and the other defendants were minors at that time. These are the material documentary evidence and oral evidence available on record, the Trial Court ought not have come to the conclusion that the suit schedule property is not the joint family property. The Trial Court has committed an error in coming to the conclusion that the plaintiff is not entitled for any relief. The very approach of the Trial Court is erroneous and made an observation in the judgment that mere producing of Ex.P1 - Sale Agreement and also Ex.P4 - Canara Bank Pass Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on record in toto both oral and documentary evidence placed on record is clear that it was the joint family property and the plaintiff also substantiated before the Court by marking Ex.P4-Canara Bank Pass Book in which an amount of Rs. 500/- was paid to the Vendor. 45. Under the circumstances, the Trial Court failed to consider both oral and documentary evidence placed on record and committed a material illegality in considering the evidence and material evidence also not considered and lost sight particularly, documents - Exs.P1 to P5 and also the conduct of the defendants i.e., DWs.1 and 2 and mainly carried away accepting the case of the defendants that she has sold the property belongs to her native place property and failed to take note of the evidence available on record in toto. Hence, it requires an interference of this Court. 46. The subsequent development mother is no more and she passed away during the pendency of this appeal and one of the sister of the plaintiff is also brought on record by allowing the application - I.A.No.1/2013. Hence, the plaintiff is entitled for 1/5th share in the suit schedule property. Point No.(iv): 47. In view of the discussions made ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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