-1- IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DFIARWAD DATED THIS THE 291H DAY OF MARCH 2011 PRESENT THE HONBLE MR.JUSTICE KLMANJUNATII AND ‘l’IIE HO’BLE MRiUSTICE H.N.NA(AMOIIAN DAS RFA No.745/2005 BETWEEN: SriAnand Shett S ‘oMuddanna Shettv Age: 70 years, 0cc: Business, R / o. Hotel Mavura, Coen road, Huhli-580028. ...Appellant (B\ Sri. G.S.Bhat. Advocate.) AND: L K.Bhujanga Shettv S o.Muddanna Shett\ Age: 4 years, 0cc: Business, R o. Guru Apartments. Deshpancle Nagar. H u b Ii -580029 2. K. Guvinda Shettv S o.Muddanna Shettv Since deceased, represented by His legal heirs. 2a. SmtKamala Shetty W o.late K.Govinda Shettv -2- Age: Major, 0cc: Housewife, R/o.Bailkere House, Chitpadi, 76, Badagubettu, Udupi — 576 102. 2b. Smt.Sunanda Shetty W/o.Babu Shetty Age: Major, 0cc: Household work, R/o.Oopalpur Math, Santhekatte, Kalyanpur, Udupi-576 103. 2c. Smt.Mohini Shetty W/o.Laleendar Shetty Age: Major, 0cc: Household work, R/o.Nidambally House, Kalyanpur, Mooduthonse village, Udupi-576 103. 3. C.Jagannath Shetty S/o.Muddanna Shetty Age: about 74 years, R/o.Krishna Restaurant, Veerapur Oni, Hubli-580 029. 4. Smt.Sundari W/o.Kallappa Shetty Age: Major, 0cc: Nil, R/o.Ramesh Bhavan, Keshavapur, Hubli-580029. 5. Ramesh Shetty S/o.Kallappa Shetty Age: Major, 0cc: Business, R/o.Ramesh Bhavan, Keshavapur, Hubli-580029. 6. Damodhar Shetty S/o.Kallappa Shetty Age: Major, 0cc: Business, (V -3- R oRamesh Bha an, K C S h a v a pu r, Ilubli 58002Q. Respondents (B Sri, Dinesh M. Kulkarni. Advocate, for Ri.) (SriMGNaganuri. Advcoate, for R2A to R.2C, R. 3) (R.4, R5, R.6 NoDce served.) This Regular First Appeal is filed U S 96 of CPC, against the judgment and decree dated 7 4 2005 passed in O.S.No 142 1999 on the file of the Addi. Civil Judge (Sr.Dn.), Hubli, decreeing the suit for partition and separate possession. This Appeal coming on for Final Hearing this da, K.L.Manjunath, J, delivered the following judgment: JUDGMENT The appellant who was defendant No.3 in OSNo. 142 1999 on the file of Addi. Civil Judge (Sr.Dn.), Hubli, 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 u ill be referred as per the status before the Court belou. r -4- 4. The plaintiff Bhujang Shetty, defendant 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 (‘4 .5. business of Udupi Restaurant was expanded and thereafter the suit property was purchased in the name of the 3rd defendant since he was a brilliant businessman and had good public relations. According to the plaint averments, the plaint schedule property was purchased 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. I 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 3’d defendant, was not divided and that the 3 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 1/5111 1 € -6- share and that the suit property was purchased by the brothers jointly in the name of the 3ic1 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 3n1 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 he contcnds 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 9’ -7- 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 land was purchased under sale deed dated 6/2/ 1969 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. 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 -8- enjoing the property right from 1963 as owner of the property and has perfected bib title by ay of atherse possession. In the circumstances he rcquested the Court to dismiss the suit 10. Based on the above pleadings the foI1oting issues ere 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.2632 on 31/5/1963 and another piece of 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? 2j Whether the plaintiff proes that the sale deeds of the suit properties have been made in the name of defendant No.3 with the consent of c/ 9 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 Sb. Tesu Saliyana, a hair-dresser as PW-2. On behalf of the defendants one Satish Shetty 5/0. Raghava Shetty was examined as DW- I 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 ‘4/ -10- 7. The trial court after appreciating the evidence letin by the parties held Issue Nos. 1, 2 and 5 in the affirmative and Issue Nos.3 and 4 in the negatlvc. Ultimately, the suit of the plaintiff came to be decreed holding that he is entitled for / h share in the plaint schedule property. This judgment and decree is called in question in this appeal by the apilant 12. The main contention of learned counsel for the appilant belore 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 Allyci Scmthana Law and that the plaint schedule property is not the property of their mother to claim it as Aliya Santharici lw He further contends that after filing of the suit, the plaintiff had filed a suit in OS. No. 1 09/ 2000 on the file of the Civil Judge (Sr.Dn,). Udupi, claiming partition and separate possession of their fhmilv properties wherein the present suit property ‘a - not Therefore, he contends that the suit 1\ filed by the plaintiff claiming it as a joint family property or coownership 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 4 -11- in the name of 3rd defendant/appellant, burden is heavy on him to show that the propcrt was acquired out of the joint acquisition of the plaintiff and all his brothers and that the 3rd defendant is only a name lender 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 3n1 defendant on behalf of the brothers. 13. He further contends that the trial court has committed a serious error in rejecting the evidence of DW-2, the wife of 3M defendant, on the ground that 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 3n1 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 fV -12- 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 3rd1 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- I 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. -13- 4 Per contru. learned counsel for the 1 ‘ respondent Mr. Dinesh. M .Kulkarni contends thai 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 3ii defendant has admitted the relationship between the parties, and when the 3rd defendant admits that 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 learned counsel for the parties, following points are to be considered by this Courta (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? I h. The relationship between the parties is not at all in dispute. It is also not in dispute that the parties are governed by Alizju Scrnthcrna Law. It is also not in dispute that there is -14- 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 3nt 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 -15- profit out of the business and also the 3M defendant and his sons have collected huge deposit and 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 givc 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 of plaintiffs and defendants. If it is treated as 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 busincss run in the name of 3M 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 ci the suit property was acquired in the name of the 311 defendant and ho the suit property is treated dS 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 3id defendant and in another breath he contends that it is a joint famil business. If it is a joint famil 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 for partition in OS. No.10(4/2000. 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 eidencc would be differ and distinct. When the 3:’ defendant has filed the written statement contending that it is his self acquired property and similarly, the plaintiff and remaining defendants have acquired the properties in their name individually, the -17- burdcn of proving that the suit schedule property as acquired by the plaintiff and his brothers as co-owners is hea 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 plaint schedule property as the property acquired by the brothers as co owners in the name of the 3”’ defendant. But unfortunately, no such declaration is sought and no evidence is also let-in 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- I 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 inested by the plaintiff and his brothers, he has not placed any material before the Court below. The plaintiff has produced Ex.P-I to Ex.P-l0. Out of them Ex.P-l 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 31.01.199 1: Ex.P-8 is another notice dated 13.10.1998; Ex.P 9 is postal w -18- acknosledgment and Ex.P-1O is the paper publication taken out in a daily newspaper. From the abo’c documents it is clear that no document is produced by the plaintiff to shoii ho and in what manner, the property was acquired by the plaintiff and his brothers in the name of the 3td defendant It has come in the evidence that when the Jid 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 poaer of attorney was cancelled in the year 1988. From 1988 onwards, the 3”’ defendant’s children are maintaining the plaint schedule property. In the cross-examination of PW-1, he has admitted as hercundcr: “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 3’ defendant Witness volunteers that as 3 defendant was intelligent man and said records were made in his name. It is true that rent note was also in the name of 310 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 -19- 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 3 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. 3 rd 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 /uuderlining 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 3 defendant. It is true that 3rc defendant has not given any share in the profit of Udupi Hotel as well as Mayur Hotel. At no point of time, I have -20- asked the 3 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.” F-Ic has further admitted as hereunder: “It is not true 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 3 rd defendant. It is true that 3 rd 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 /underimmg 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 ftr partition and separate possession. He has filed the suit for partition ‘p -21- one year later in 0.5. No.109/2000 on the file of the Civil Judge (Sr.Dn.), Lidupi. Ln other words, in one breath he contends that the suit schedule property 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 hc has contributed to acquire the property in the name of 3I 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