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TMI Blog2021 (12) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... lication, whether she is necessary party or not has not been disputed by the proposed respondent in the objection statement. Hence, the appellant has made out a ground to allow the application filed under Order 1 Rule 10(2) read with Section 151 of CPC to implead his sister as respondent No.5. Plaintiff proof that he has got 1/5th share in the suit property - HELD THAT:- As noted that the suit is filed for the relief of partition and also the suit was dismissed prior to execution of these documents. In order to decide the issue whether the suit schedule property is the joint family property or not, these documents are not necessary and germane issues are involved between 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Order: - The impugned judgment and decree passed on the file of the XV Additional City Civil Judge at Bengaluru City, is set aside.The plaintiff is entitled for 1/5th share in respect of suit schedule property. - R.F.A.NO.842/2004 (PAR/INJ) - - - Dated:- 12-11-2021 - THE HON'BLE MR. JUSTICE H.P. SANDESH FOR THE PETITIONER : SRI SANGAMESH R.B., ADVOCATE FOR THE RESPONDENT : SRI DINESH RAO N., ADVOCATE FOR M/S. RAO ASSOCIATES FOR CAVEATORS/R1 R2 AND FOR R3 R4; SRI K.SREEDHARA, ADVOCATE FOR PROPOSED IMPLEADING JUDGMENT This appeal is filed by the plaintiff challenging the judgment and decree dated 18.03.2004 passed in O.S.No.6217/1988 on the file of the XV Additional City Civil Judge at Bengaluru City. 2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court. 3. The factual matrix of the case is that the plaintiff has sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned himself as P.W.1 and other two witnesses as P.Ws.2 and 3 and got marked the documents at Exs.P.1 to 5. On the other hand, defendant No.1 was examined as D.W.1 and defendant No.2 was examined as D.W.2 and they got marked the documents at Exs.D.1 to D7. The Trial Court after considering both oral and documentary evidence placed on record, dismissed the suit in coming to the conclusion that the plaintiff has not proved the suit schedule property is a joint family property. Hence, the present appeal is filed before this Court. 9. The main contention of the appellant/plaintiff before this Court in this appeal is that the Trial Court has committed an error in not considering the fact that the plaintiff is the eldest son of the first defendant and Kumaran Nair. Kumaran Nair retired from service in the year 1978. It is contended that after the death of the father, the plaintiff being the eldest son in the family was maintaining the entire family and providing education to the younger brothers. The Trial Court committed a mistake in not considering Ex.P3, wherein, specific averments are made in the notice that the house was constructed out of the retirement benefits of the father. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eddy, who was the owner of the suit schedule property and further he was also stated in his evidence that he paid a sum of ₹ 3,000/- to the plaintiff towards the construction of the suit schedule property and he had occupied the first floor of the suit schedule property for some time as tenant and the said amount of ₹ 3,000/- has been paid by the plaintiff at the time of construction of first floor was adjusted towards the rent and the said fact was not disputed by the defendants. The Trial Court committed an error in accepting the contention of the first defendant that the first defendant sold the property derived from her mother at Kerala and investing the same purchased the property in Suddaguntapalya in her name. The entire approach of the Trial Court has resulted in miscarriage of justice. 14. The learned counsel appearing for the appellant/plaintiff would vehemently contend that out of the four issues the Trial Court answered issue No.1 in favour of the plaintiff and thereafter committed a serious error in dismissing the suit for partition. 15. The learned counsel appearing for the appellants in support of his arguments he reiterated the grounds urged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f institution of the suit, the suit was dismissed and during the pendency of R.F.A., in between 2004 to 2006, he did not make any application only after the matter was referred back to this Court by the Apex Court, an attempt is made to implead her. When this application is filed after lapse of almost three years, an application is filed for recalling the earlier order. An application is filed after almost 25 years from the date of institution of the original suit. Hence, he is estopped from filing such an application and prayed this Court to dismiss the application. Other respondents have not filed any objections. 21. Having heard the arguments of the respective learned counsel and also on perusal of the material available on record, this Court has to re-appreciate the material and while re- appreciating the material available on record, the following points arise for the consideration of this Court: (i) Whether the appellant has made out a ground to allow the application filed under Order 1 Rule 10(2) read with Section 151 of CPC to implead the daughter-Prabhavathi as necessary party to the proceedings? (ii) Whether the appellant has made out a ground to allow the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is prayed that this Court to permit the appellant to produce the three gift deeds dated 04.11.2011 and one gift deed dated 10.11.2000. In support of this application, it is sworn to by the appellant that the suit schedule property was purchased in the name of his mother Thangamma, out of consideration paid by his father and he himself. During the pendency of the above appeal, his mother Thangamma has executed three registered gift deeds in favour of defendant Nos.2, 3 and 4, respectively in respect of portion of the suit schedule property and it is contended that those documents are created by defendant Nos.2 to 4 by colluding with each other so as to defeat his rights. In order to attain final adjudication in the above suit he intended to file the said gift deeds and hence, he may be permitted to produce additional documents and along with the application xerox copies of the gift deeds are also produced before the Court. This application is opposed orally and not filed any statement of objections. 25. Having considered the grounds urged in the application, it is stated that these documents of gift deeds are created during the pendency of the appeal and contend that these docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 978. He admits that his name do not find place in the sale deed in respect of the said site. But he claims that he has produced agreement which is in favour of his father regarding above said site. He claims that the site in suit property was purchased out of savings of his salary and savings of his father. He joined the Police Department in the year 1972. But he had no documents to show that he had source of income prior to 1972. But he claims he had produced account book to show his contribution for the purchase of site in the suit property. But he had not signed the sale deed in respect of suit site in any capacity. But he was present at the time of registration of the suit site that was in the month of December 1977. No license or sanctioned plan was obtained to put up suit building. But his mother has applied for regularization of suit building. It has been regularized in the year 1992. He did not file any objections. It is his claim that his father got ₹ 15,000/- by way of retirement benefits. Out of the above said ₹ 15,000/- jewels worth about ₹ 2,000/- were purchased to his mother. It is elicited that the defendants have replied to his notice. He also admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in installments. Site was purchased in the name of Thangamma i.e., first defendant. House was got built by the plaintiff during 1978-79. House warming ceremony took place in the year 1979. A sum of ₹ 3,000/- was paid by him to the plaintiff towards cost of construction. The first floor was occupied by him as tenant. The loan of ₹ 3,000/- was adjusted towards the rent. It is also his evidence that the retirement benefit of the father of the plaintiff was also invested for construction. Plaintiff was maintaining account regarding the construction in Madivala Branch of Bengaluru. He was subjected to cross-examination. 31. In the cross-examination, it is elicited that he was the classmate of the plaintiff in V.V.Puram Evening College and both of them studied together in 1978. Plaintiff had three brothers and one sister. He does not have any document to show that he had purchased a site from Krishna Reddy. He had seen the copy of agreement entered into between Krishna Reddy and the plaintiff in respect of the suit schedule property. Under the said agreement, plaintiff had paid an advance of ₹ 500/- in cash. He has not seen the sale deed in that regard. Plaintiff i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loans. Now, it has got two floors. Second floor was constructed subsequently. She does not know the total extent of amount which her husband got as retirement benefit. It is suggested that the construction was made by her husband and her son i.e., first and second floor and the same was denied. However, she admits that her son i.e., the plaintiff got married in the year 1980. But she claims that she did not attend the marriage. It is suggested that he stayed along with her till he got married and the same was denied. 34. Suresh and Sudhakar were aged about approximately 11 and 15 years respectively when the property was purchased. It is suggested that before filing the suit a notice in terms of Ex.P3 was given to plaintiff on 27.06.1988 and the same was also denied. It is her claim that she raised the loan in the year 1994 and while availing the loan, she has produced the plan. Herself and all her sons except plaintiff, have signed the documents. It is elicited that her husband celebrated the marriage of Sethumadhavan. Only father and son took part in it. She admits that she was not quarreled with his wife at any time. A photo was confronted to the witness that she also taken pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On perusal of document Ex.P4, it is clear that an amount of ₹ 500/- was paid in favour of the vendor, who had executed the Sale Deed in favour of first defendant and the Trial Court has not given any clear finding with regard to the payment made to the vendor Krishnappa Reddy in terms of Ex.P4, but comes to the conclusion that if any such payment is made i.e., only to look after the affairs of the family. But here it has to be noted that, it is the contention of defendant No.1 i.e., D.W.1 that from the year 1972 onwards, the plaintiff was not resided along with them. Admittedly, the building was constructed in the year 1978 and the house warming ceremony made in the year 1979 and the plaintiff also examined two witnesses regarding who had constructed the house and the person, who had occupied the first floor of the building after construction, who is P.W.3. It is elicited from the mouth of P.W.2 that he had not maintained any account. But in the cross-examination of P.W.3, no suggestion was made that he was not a tenant in respect of the additional construction made to the suit schedule property. 40. It is the specific case of the plaintiff that P.W.3 lent an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year 1980 but both D.W.1 and D.W.2 claim that they have not attended the marriage, but only father had attended the marriage. But a group photo-Ex.P5 was confronted to D.W.2 and though D.W.1 gives different version in her cross-examination but D.W.2 categorically admits that the said photograph was taken at the time of reception. It is pertinent to note that the Trial Court has failed to take note of this evidence and also failed to take note of the sale agreement and also the witnesses have not given proper answer when Ex.P4 was confronted to show that plaintiff made the payment in favour of the vendor to the tune of ₹ 500/- prior to registration of the Sale Deed. The Trial Court failed to take note of the conduct of the parties, particularly, defendant No.1, who had gone to the extent of denying the fact that attending the marriage of the plaintiff in the year 1980 and gone to the extent of stating that her husband only attended the marriage but she did not attend the marriage, but the truth has been elicited from the mouth of D.W.2 that she also attended the marriage reception and photograph-Ex.P5, depicts the photo of the mother. Hence, it is clear that all of them join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said premises after the construction by lending an amount of ₹ 3,000/- and the same is adjusted towards rent and no cross-examination regarding the same. No doubt, he is the classmate of plaintiff but nothing is elicited with regard to he was a tenant in the portion of the additional construction. Hence, it is a fit case to reverse the finding of the Trial Court since the Trial Court has committed an error in coming to the conclusion that the plaintiff has not made out a case. 44. The other contention of the defendants is that they have not proved the said transaction is a Benami transaction. Here in this case, document - Ex.P1 - Agreement to Sell was in the name of the father. Sale Deed was in the name of the mother and all are family members. Hence, the question of Benami transaction does not arise. Only the mother is the name lender and the mother also may be contributed by selling her native place property which was given to her, but that does not mean that all the family members have not joined in purchasing the property and making the construction. Admittedly, the plaintiff also joined the Police Department in the year 1972 and the house was constructed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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