IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 RSA.NO. 436 OF 2010() --------------------- {AS.114/2003 OF SUB COURT, KASARAGOD OS.266/1998 OF PRL.MUNSIFF, KASARAGOD} .................... APPELLANT(S): APPELLANTS/PLAINTIFFS --------------------------------------------- 1. GANANATHA SHETTY, 2. RAVEENDRANATH SHETTY, THE APPELLANTS ARE THE CHILDREN OF LATE PERLA NARAYANA SHETTY THE 1ST APPELLANT IS WORKING AS AN ARCHITECHT AT APSAR BULDINGS, 61B HILL RD,BANDRA, BOMBAY-50 AND 2ND APP: RES: AT UDAYAVAR (H), UDYAVAR (V),P.O.MANJESHWAR,KASARGOD TALUK & DIST. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENT(S)/RESPONDENT(S)/DEFENDANTS: ------------------------------------------------------ 1. PADMAVATHI.N. SHETTY, W/O. OF PERLA NARAYANA SHETTY, RESIDING AT UDYAVAR VILLAGE, P.O.MANJESHWAR, KASARGOD TALUK AND DISTRICT. 2. PRATAP SHETTY, SON OF PERLA NARAYANA SHETTY, RESIDING AT CHINMAYA, AMBALPADY MAIN ROAD, UDUPI, UDUPI TALUK AND DISTRICT. 3. UMA.B.SHETTY, WILFE OF BALAKRISHNA SHETTY, RESIDING AT JIGNA APARTMENTS, GAVANPADA ROAD, MULUND EAST, BOMBAY. 4. DAKSHAYINI.V.SHETTY, WIFE OF H.V.HALDAS SHETTY, RESIDING AT HOUSE NO. 41, 2ND CROSS, VINAYAKA LAYOUT, BHUPASANDR, BANGAORE. RSA.NO. 436 OF 2010 :: 2 :: 5. HARSHAVARDHANA SHETTY, SON OF PERLA NARAYANA SHETTY, RESIDING AT KODLAMOGARU HOUSE,KODLAMOGARU VILLAGE AND POST (VIA) MANJESHWAR, KASARGOD TALUK AND DISTRICT. 6. PURUSHOTHAMA SHETTY, S/O. PERLA NARAYANA SHETTY, RESIDING AT OM NILAYA, BAILUR, UDUPI, KARNATAKA. 7. VIJAYALAXMI.P.SHETTY, WIFE OF PRBHAKARA SHETTY, RESIDING AT HOUSE NO.416 6TH MAIN, 1ST CROSS, H.A.L. 2ND STAGE, INDIRA NAGAR, BANGALORE-38. 8. BEENA.T.KUMAR, WIFE OF THILAK KUMAR, RESIDING AT HOUSE NO.41, 2ND CROSS, VINAYAKA LAYOUT, BHULU SANDRA, BANGALORE. 9. MURALIDHAR SHETTY, SON OF PERLA NARAYANA SHETTY, RESIDING AT HOUSE NO.41, 2ND CROSS, VINAYAKA LAYOUT, BHULU SANDRA. BANGALORE. 10. GOVARDHANA SHETTY. SON OF PERLA NARAYANA SHETTY, RESIDING AT HOUSE NO. 146/7, DEEPASHREE, NAGASETTI HALL, BANGALORE-94. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- R.S.A.No.436 of 2010 --------------------------------------- Dated this the 2nd day of September, 2010 JUDGMENT Plaintiffs in a suit for partition are the appellants. Challenge is against the preliminary decree and judgment to the extent both the courts below have declined separate possession and allotment claimed by the plaintiffs over some of the suit properties. Though the contesting defendants have resisted the claim for partition over the suit properties canvassed by the plaintiffs, during the trial the controversy was confined to four items alone, item Nos.9 and 17 to 19 in plaint B schedule. So far as the other items covered by the suit, the claim for partition by the plaintiffs for allotment of their share was practically conceded and the decree granted thereof has become final. In respect of item No.9, which was covered by Ext.B4 gift deed executed by the first defendant in favour of defendants 6 to 8, the plaintiffs claimed partition ignoring such gift, contending that a Boothathan Chavadi in that item of property was R.S.A.No.436 of 2010 :: 2 :: put up with the funds of the first plaintiff, and as such they are entitled to have allotment of that property in their share. Ext.B4 gift deed executed in favour of defendants 6 to 8 was also impeached as having not come into effect at all. In respect of item Nos.17 to 19 over which, admittedly registered sale deeds had been taken in the name of the 6th defendant, the claim for partition was pressed into service by the plaintiffs contending that such sale deeds were taken with the funds provided by the first plaintiff and the purchases under the deeds were made for the benefit of the family. Both the courts below, after meticulous consideration of the pleadings and also the evidence tendered in the case, negatived the claim set up by the plaintiffs over the aforesaid items. The claim for partition over item No.9 property stating that Boothathan Chavadi situate therein was put up by the first plaintiff it has been concurrently held by both the courts below, no worth mentioning evidence to prove such a case was brought on record. Taking into that R.S.A.No.436 of 2010 :: 3 :: Boothathan Chavadi is a place of worship of all the members of the family, the trial court directed for keeping that structure with the appurtenant premises in item No.6 in common, and the area thereof to be preserved was relegated for determination in the final decree proceedings. Claim for division and separate possession over item No.6 property, subject to the above reservation made, by the plaintiffs was negatived. Item No.9 is admittedly covered by the gift deed executed by the first defendant in favour of defendants 6 to 8. The executant has no challenge against the gift and that the property covered by the deed absolutely belonged to that defendant is also not under challenge. Some structures have been put up in the property with the funds advanced by the plaintiffs, is the basis for the claim for partition which however remained unsubstantiated by any evidence. The concurrent findings entered by both the courts below that the claim for partition over item No.9 is unworthy of any merit and it is not open to challenge at all. R.S.A.No.436 of 2010 :: 4 :: 2. So far as the claim over item Nos.17 to 19 is concerned, admittedly those items have been purchased under various registered sale deeds taken in the name of the 6th defendant. That defendant has no income of his own and the funds for such purchases were made by the first plaintiff was the basis to seek partition of the share of the plaintiffs over such items contending that such purchases have been made for the benefit of the family. Other than the self-serving claims made by the 2nd plaintiff, when examined as PW.1, nothing was brought on record that the purchases have been made with the funds advanced by the first plaintiff. Both the courts below have taken note that the 6th defendant was possessed of sufficient income and thus capable of effecting the purchases over such properties in his name as shown in the sale deeds executed in his favour. Merely by setting up a plea that the properties covered by the sale deeds in favour of the 6th defendant had been purchased in his name for the benefit of the family, R.S.A.No.436 of 2010 :: 5 :: without anything more, the exception covered by sub- section 3(a) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 cannot be canvassed to get over the prohibitions over benami transactions even assuming that such sale deeds had been taken as benami in favour of the above defendant for the benefit of the family. The 6th defendant, who was examined as DW.1, apart from producing the sale deeds in his favour, over items 17 to 19, produced other documentary materials as well to show that he has been exercising right over the properties as the title holder to the exclusion of other members of the family. His title taken under the sale deeds, considerable long period before the institution of the suit, has not been assailed by any of the parties was also taken note of by both the courts. The first plaintiff claimed share over items 17 to 19 advancing a case that such properties were purchased with his funds for the benefit of the family, but the sale deeds were taken by the 6th defendant, ignoring the direction to take the deeds in the R.S.A.No.436 of 2010 :: 6 :: name of the children of the 1st plaintiff. Such a case was advanced alleging that the 6th defendant was employed as a clerk in the office of the first plaintiff in Bombay and he had no income of his own. The sixth defendant is possessed of sufficient income and he was capable of effecting the purchases was established by the evidence tendered in the case. It is noticed that the first appellate court has also taken note that a contradictory stand was taken by the appellant to assail the sale deeds contending that the purchases under the sale deeds were made by the 6th defendant out of the income from other properties of the family, which goes against the version set up to claim that such purchases were made from the funds advanced by him to that defendant. Concurrent finding entered by the courts below declining the claim for separate share over items 17 to 19 by the plaintiffs where the materials showed that the sale deeds taken by the 6th defendant over such properties in his name conferred on him absolute title and possession over such R.S.A.No.436 of 2010 :: 7 :: properties was perfectly justified, and there is no merit in the challenge canvassed by the appellants/plaintiffs. The findings arrived at by the courts below, it is seen, are essentially findings of fact on the materials placed and there is absolutely no question of law, leave alone substantial question of law, for entertaining this appeal. The appeal is devoid of any merit and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.