IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.F.A.No.163/2008 BETWEEN:
E. KANTHARAJU, S/O LATE B.C. ESWARA MURTHY, AGED 49 YEARS, OCC: SERVICE, R/O.NO.100, 5TH CROSS, 3RD MAIN, VIDYARANYA NAGAR, BENGALURU-560 023. … APPELLANT (BY SRI K.V. NARASIMHAN, ADVOCATE FOR SRI N.M. HANDRAL, ADVOCATE) AND:
1. SMT. JAYALAKSHMAMMA, W/O LATE B.C. ESWARA MURTHY, AGED 70 YEARS, OCC: HOUSEHOLD, R/O.NO.100, 5TH CROSS, 3RD MAIN, VIDYARANYA NAGAR, BENGALURU-560 023.
2. SMT. DEEPA R. SALUNKE, W/O RATHNAKAR SALUNKE, AGED 44 YEARS, OCC: HOUSEHOLD, R/O.NO.5, 3RD BLOCK, KAVERI COMPLEX, HOSUR ROAD, BENGALURU-560 030.
3. SMT. MEENAKSHAMMA, W/O. LATE M. MUNIYAPPA, AGED 47 YEARS, OCC: HOUSEHOLD, R/O.NO.55, 3RD CROSS, CHOLURUPALYA, MAGADI ROAD, BENGALURU-560 023. ... RESPONDENTS (BY SRI B.M. AKANDESWARA, ADVOCATE FOR R-1 AND R-3, SRI SITHARAMA G. HEGDE, ADVOCATE FOR R-2) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 12.11.2007 PASSED IN O.S.NO.855/1998 ON THE FILE OF THE I ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH- 2), DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed against the judgment and decree of dismissal dated 12.11.2007, passed in O.S.No.855/1998, on the file of the I Additional City Civil and Sessions Judge, Bangalore City (CCH No.2).
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
3. The plaintiff is the son of defendant No.1. The plaintiff at the first instance filed a suit against the mother seeking the relief of partition. During the pendency of the suit, item No.2 of the suit schedule property was sold in favour of defendant No.2. Hence, defendant No.2 was arraigned as a party to the proceedings. The plaintiff subsequently impleaded one of his sister as defendant No.3. The case of the plaintiff before the Court below is that defendant No.1 is the mother of the plaintiff and the father of the plaintiff Sri B.C. Eshwara Murthy died long back on 23.6.1960 and after the death of his father, he is looking after the welfare of defendant No.1. It is further contended that the plaintiff is employed in the Revenue Department, Government of Karnataka. During the lifetime of his father, he has not earned any movable or immovable property and he has not left any property. The plaintiff out of his self- earned money has purchased several properties more fully described in the schedule. Since the defendant No.1 is the eldest member of the family and mother of the plaintiff, all the properties were purchased in her name. However, in the year 1986, the plaintiff married one Radha. But, defendant No.1 is not ready to give the share of the plaintiff out of the suit schedule properties inspite of his request. Hence, the plaintiff was constrained to file the suit for partition.
4. The defendant Nos.1 to 3 appeared through their counsel and filed their separate written statements. The defendant Nos.1 to 3 admitted the relationship of the plaintiff with defendant Nos.1 and 3. They also admitted that the defendant No.2 is the purchaser of the item No.2 of the suit schedule property. In the written statement they have denied that the suit schedule properties are the self-acquired properties of the plaintiff. It is the contention of defendant No.1 that, all the suit schedule properties are her self-acquired properties and the same was purchased out of her earnings. The defendant No.2, who is the subsequent purchaser, in her written statement contended that she verified the documents before purchasing the property and item No.2 of the suit schedule property was standing in the name of defendant No.1 and hence she has purchased the property from defendant No.1. The defendant No.3 – daughter of defendant No.1, claims that item No.3 of the suit schedule property was bequeathed in her favour by her mother. The Court below after considering the pleadings of the plaintiff and defendant Nos.1 to 3, framed the following issues:
(1) Whether the plaintiff proves that he purchased the suit schedule properties on behalf of the joint family in his mother’s name?
(2) Whether the plaintiff proves that he is entitled for partition of the suit schedule properties and for separate possession of his share by metes and bounds? If so, what is the extent of his share?
(3) Whether the defendants prove that the suit schedule properties are the self-acquired properties of the first defendant and she is the absolute owner in possession of the same?
(4) Whether the second defendant proves that the suit is bad for mis-joinder of necessary and proper parties and her name is deleted against the relief claimed by the plaintiff?
(5) To what reliefs are the parties entitled to?
(6) What order or decree?
5. The plaintiff in order to substantiate his contention, examined himself as P.W.1 and marked documents at Exs.P1 to 12. The defendant Nos.1 to 3 have been examined as D.Ws.1 to 3 and got marked the documents at Exs.D.1 to 14. The Court below after hearing both the parties and after considering the material on record, dismissed the suit of the plaintiff. Hence, the plaintiff has preferred this appeal before this Court.
6. The main grounds urged in the appeal memo is that the Court below has committed an error in coming to the conclusion that the suit schedule properties are the self-acquired properties of defendant No.1. The Court below failed to take note that defendant No.1 has not produced an iota of evidence regarding acquisition of funds to purchase the suit schedule properties. The defendant No.1 in her evidence has not stated what was her income. On the other hand, the plaintiff has produced substantive evidence regarding purchase of suit schedule properties out of his self-earning. The Court below has presumed the things only on surmises and conjectures, which has resulted in miscarriage of justice. The Court below has gravely erred in shifting the burden of proof entirely on the plaintiff, which is illegal and without considering the fact that when defendant No.1 asserts that the suit schedule properties are her self- acquired properties. Therefore, the burden of proof is equally on her to prove the same. The defendant No.1 has not discharged her burden to prove the mode of self-acquisition of funds to purchase the suit schedule properties. Her evidence in this regard is silent and inspite of it the Court below dismissed the suit by coming to the conclusion that the suit schedule properties are the self-acquired properties of defendant No.1. Hence, it requires interference of this Court.
7. The learned counsel appearing for the appellant in his argument vehemently contended that the plaintiff lost his father in the year 1960 when he was one year old. When he was studying in 8th standard itself, he was working in the private concerns. He also spent money for performing the marriages of his two sisters and also has taken care of his mother. The plaintiff also worked as deed writer from 1980 onwards and thereafter he joined Government service in the year 1986. All these suit schedule properties were purchased out of his income and his mother was not having any income or any avocation. The very finding of the Trial Court that the properties are self- acquired properties of defendant No.1 is erroneous. The Court below while dismissing the suit made an observation that the plaintiff has not placed any material before the Court to substantiate his claim and the very approach of the Trial Court is erroneous.
8. The appellant has also filed an application under Order 41 Rule 27 of CPC seeking permission to produce the additional documents before this Court. Along with the said application, the appellant/plaintiff has produced the copy of licence to show that he was working as deed writer, which was issued in the year 1980. He has also produced the copy of the mortgage deed for having paid the mortgage amount in favour of the tenant in respect of the portion of the property. He prays this Court to allow the application, as these two documents are very much necessary to decide the issues involved between the parties.
9. On the other hand, the learned counsel for the respondents, in his arguments contends that item No.1 of the suit schedule property was purchased in the year 1981 and subsequently item No.2 was purchased in the year 1990 and item No.3 was purchased in the year 1995. The main contention of the defendants is that the plaintiff married in the year 1986 and he was residing along with his mother only for a short period. Thereafter, he started to live separately and did not take care of his mother. He has contributed nothing to purchase the suit schedule properties.
10. The Court below considering both oral and documentary evidence placed on record has rightly come to the conclusion that the plaintiff did not place any material for having contributed his income to purchase the suit schedule properties.
The defendant No.1 has purchased the suit schedule properties out of her cash amount and her savings and also by doing tailoring work. In the absence of any material before the Trial Court to show that the plaintiff has contributed his money to purchase the suit schedule properties, it cannot be held that it is a joint family property. Hence, the Court below has rightly come to the conclusion that the plaintiff failed to prove his case.
11. The learned counsel for the respondent – defendants orally opposed the application filed under Order 41 Rule 27 of CPC contending that the documents which the plaintiff is relying upon will not in any way come to the help of the plaintiff. It is only a licence and nothing has been placed before the Court to substantiate that the plaintiff contributed money to purchase the suit schedule properties by working as a deed writer. In order to decide the issue involved between the parties, the said document is not necessary. The other document is the xerox copy and the same cannot be entertained. Hence, prayed this Court to dismiss the appeal and the application filed under Order 41 Rule 27 of CPC.
12. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in answering issue Nos.1 and 2 in the negative and issue No.3 in the affirmative in coming to the conclusion that the plaintiff has failed to prove that he is entitled for the relief of partition in respect of item Nos.1 to 3 and so also answering issue No.3 in affirmative that suit schedule properties are the self-acquired properties of the defendant No.1?
(ii) Whether the appellant/plaintiff has made out the grounds to allow the application filed under Order 41 Rule 27 of CPC?
(iii) What order?
Point No.(ii):
13. Before considering the merits of the appeal, when an application is filed under Order 41 Rule 27 of CPC, this Court has to give a finding with regard to the application whether the plaintiff has made out the grounds to invoke Order 41 Rule 27 of CPC. It is settled law that Order 41 Rule 27 of CPC could be invoked, if additional documents are necessary to decide the issues between the parties. This Court can entertain the application subject to the plaintiff is vigilant and non-production of the documents is not in his control. He has to satisfy the grounds mentioned in Order 41 Rule 27 of CPC. At the same time, the Court should also consider whether those documents are necessary to decide the germane issues involved between the parties and if the plaintiff satisfies the same, then only the Court can entertain an application under Order 41 Rule 27 of CPC.
14. In the case on hand, the plaintiff is seeking permission of this Court to produce the additional evidence before the Court mainly relying upon the documents of licence, which he has obtained in the year 1980. The document only shows that he obtained the licence in the year 1980 from the concerned authority to work as deed writer. Other than the licence, the plaintiff has not produced any document to substantiate his claim that he has contributed money out of his income as deed writer. Mere entertaining the said licence itself is not enough to consider the case on hand. The said licence will not help the plaintiff to come to the other conclusion that he was having source of income. It only shows that he was registered as deed writer in the year 1980. In order to decide the issues between the parties, the said document is not helpful to the plaintiff. The plaintiff has also not assigned any reasons as to what prevented him from producing the said document before the Trial Court when the specific question was put to him with regard to avocation and income. The plaintiff did not comply with Order 41 Rule 27 of CPC to entertain the application under Order 41 Rule 27 of CPC that he was very vigilant and the document was not in his custody. No efforts were made to place the document before the Trial Court and it is not his case that the document was not in his custody. When such being case, it is not appropriate to entertain the application under Order 41 Rule 27 of CPC granting permission to the appellant to produce the additional documents. Hence, I answer point No.(ii) in the negative.
Point No.(i) 15. The sum and substance of the case of the plaintiff before the Court is that when his father died on 23.6.1690, he had not left any property to the family. It is also his case that when he was studying in 8th standard, he started to work in private concern. Thereafter also he was doing the work and helping the family. It is also his contention that all the suit schedule properties were purchased out of his income in the name of his mother, since his mother is the elder member in the family. The mother was not having any source of income to purchase the properties.
16. Before considering the issues involved between the parties whether it is self-acquired property of defendant No.1 or it is the self-acquired property of the plaintiff, this Court would like to make a mention with regard to admitted facts. The fact that the father of the plaintiff died in the year 1960 is not in dispute. The fact that the plaintiff was aged one year at that time is not in dispute. The fact that defendant No.3 was married in the year 1977-78 is not in dispute. The other sister was married in the year 1979 is also not in dispute. On perusal of the documents at Exs.P1 to 3, it is clear that item No.1 of the suit schedule property was purchased on 25.4.1981. The sale consideration was only Rs.2,000/-. The fact that the site was allotted in favour of defendant No.1 from Malleshwaram Tailoring Co-operative Society is also not in dispute. Item No.2 of the suit schedule property was purchased on 15.10.1990 in terms of Ex.P.2 and the sale consideration was Rs.35,000/-. Item No.3 of the suit schedule property was purchased on 27.3.1995 for sale consideration of Rs.1,90,000/-. Admittedly, item Nos.1 and 2 are the vacant sites and item No.3 is the building.
17. The other admitted fact is that the marriage of the plaintiff was solemnised in the year 1986. The plaintiff claims that he was residing with his mother till 2003. But notice given in terms of Ex.P.6 on 24.11.1997 shows the address mentioned in respect of plaintiff and defendant No.1 as one and the same. The claim of defendant No.1 is that immediately after the marriage, the plaintiff started living separately. Only for some time they were residing together in item No.3 of the suit schedule property. During the pendency of the suit, defendant No.1 has sold item No.2 suit schedule property in favour of defendant No.2 and the same is also not in dispute. The defendant No.3 claims that item No.3 suit schedule property was bequeathed in her favour by Will dated 11.4.2003 during the pendency of the suit. The defendant No.1 is alive. Hence, the question of considering the Will and its validity does not arise.
18. Now the disputed question before the Court is whether item Nos.1 to 3 of the suit schedule properties are the self- acquired properties of the plaintiff or the self-acquired properties of defendant No.1. The plaintiff in order to substantiate his claim that the suit schedule properties are his self-acquired properties, examined himself as P.W.1. The plaintiff in his evidence reiterated the averments made in the plaint. He relied upon the documents at Exs.P.1 to 12. The documentary evidence are the sale deeds – Exs.P1 to 3 in respect of item Nos.1 to 3 of the suit schedule properties. All the sale deeds are standing in the name of defendant No.1. The plaintiff has produced the original sale deed. Ex.P.4 is the encumbrance certificate, Ex.P.5 is the khata certificate, Ex.P.6 is the application given to ARO, Ex.P.7 is the voters’ list, Ex.P.8 is the acknowledgment, Exs.P.9 to 11 are the list of assets and liabilities and Ex.P.12 is the certified copy of the sale deed in respect of the sale made in favour of defendant No.2.
19. On the other hand, to substantiate the claim of defendant No.1, defendant No.1 examined herself as D.W.2. Defendant No.2 who is the subsequent purchaser during the pendency of the suit has been examined as D.W.1. The other daughter of defendant No.1, who is defendant No.3 is examined as D.W.3. The defendants have relied upon the documents Ex.D.1 – registered sale deed made in favour of defendant No.3, Ex.D.2 – Special notice by Bangalore City Corporation, Exs.D.3 to 9 – tax paid receipts, Ex.D.10 – property tax receipt, Ex.D.11 – Khata certificate, Ex.D.12 – encumbrance certificate and Ex.D.13 – certified copy of sale deed.
20. In the cross-examination of P.W.1, it is elicited that he has not produced any documents to show that in purchasing the item No.2 of the schedule property, he has paid the sale consideration amount. It is also elicited that he has not sought any relief against defendant No.2. He further admits that he was knowing the fact that his mother has sold item No.2 suit schedule property in favour of defendant No.2. It is his evidence that he had raised objections with his mother in respect of selling of item No.2 of the schedule property in favour of defendant No.2. He admits that his sister Puspavati was not impleaded as a party to the suit. He also admits that his father was serving in the office of Sub-Registrar as a S.D.A. Before attaining the superannuation period, his father expired. Hence, he got the job on compassionate grounds. He admits that his mother was getting the pension, but it was very less. It is suggested that he is deposing falsely stating that in the year 1977 he was having earning of Rs.5,000/- and spent the same towards the marriage of his sister Meenakshi and the same was denied. It is also suggested that he is falsely deposing that he spent money for marriage of both the sisters and the same was denied. It is suggested that item No.3 schedule property was purchased by his mother out of her own earnings and the same was denied. It is also suggested that item Nos.1 and 2 of the schedule properties were purchased by his mother out of the amount received by her by selling her jewels and the same was denied.
21. It is further elicited in the cross-examination that he is in possession of item No.3 of the suit schedule property. It is suggested that his mother was staying in the ground floor portion of item No.3 of the suit schedule property and the same was denied. He admits that he has not produced any documents to show that in the year 1981 he was earning. It is suggested that at the time of purchasing of item No.3 of the suit schedule property, he was residing separately from his mother and the same was denied. He admits that he has not produced any documents to show that in purchasing item No.3 of suit schedule property, he had paid the entire sale consideration amount to the vendor.
22. The evidence of D.W.2 is that all the suit schedule properties are her self-acquired properties and out of her own income she has purchased the properties. It is also stated that her husband B.C. Eshwara Murthy died while he was in service and he left cash and jewellery and service benefits and out of it she has acquired the suit schedule properties. It is also her evidence that she was doing chit and tailoring business. It is her evidence that she had also performed the marriages of the plaintiff in the year 1986 with one Radha and also performed the marriage of defendant No.2. It is also her evidence that immediately after the marriage, the plaintiff being instigated by his wife Radha, left the house and they had started to reside separately and he has not even bothered to look after her and her welfare inspite of her old age. It is her evidence that the plaintiff has not contributed any amount to purchase the suit schedule properties. She was subjected to cross-examination.
23. In the cross-examination, it is elicited that she is an illiterate and her marriage had taken place 30 years ago with Eshwarappa. Her father was a weaver. It is also elicited that no dowry was given to her at the time of her marriage. Her husband has no ancestral property. It is also elicited that when her husband passed away, at that time the plaintiff was aged one year. Prior to her marriage, her husband was working in Revenue Department and he passed away in 1960. It is elicited that after the death of her husband, she is receiving the family pension. Firstly, the pension was 8 rupees 10 paise per month. Now, the pension is Rs.2,000/- per month. It is further elicited that the salary of her husband was sufficient to maintain their family and he was not capable to save anything out of his salary. She claims that she has no documents to show her chit business. It is elicited that she was not at all running any chit business.
She has not produced any passbook with regard to her chit business. It is her evidence that though she had a tailoring machine, now she has sold the same. She does not know the name of the purchaser of tailoring machine. It is elicited that after the marriage of the plaintiff, the plaintiff, his wife and herself were residing jointly. But, she volunteers that for some time she was residing with them at Vidhyaranya Nagar. Vidhyaranya Nagar property is the suit item No.3 of the suit schedule property. It is elicited that in the complaint, she has furnished the address pertaining to the item No.3 of the suit schedule property, because she was residing in the first floor of the building at that time. Further, she admits that the police called her and the plaintiff and gave advice to both on the strength of the said complaint. She claims that she purchased item No.1 of the suit schedule property for Rs.1,90,000/- and paid the amount by cash. It is elicited that all the items of the suit schedule properties were purchased after the marriage of her daughters. But she claims that the husband of her daughter was helping her financially. It is elicited that she has no documents to show that late Muninanjappa helped her financially.
24. The other witnesses are daughter and subsequent purchaser during the pendency of the suit and their evidence is not material with regard to the issues involved between the parties. It is only with regard to the subsequent development during the pendency of the suit. D.W.3 claims that she derived the right in respect of item No.3 of the suit schedule property by way of Will. D.W.1 is the subsequent purchaser during the pendency of the suit and there is no dispute with regard to selling of item No.2 of the suit schedule property in favour of the defendant No.2.
25. Now this Court has to analyse the evidence available on record. This Court has already mentioned with regard to undisputed facts before the Court. Now the disputed facts are with regard to the claim of the plaintiff that he has contributed his earnings to purchase the suit schedule properties. Admittedly, item Nos.1 to 3 suit schedule properties are standing in the name of defendant No.1. It is also an admitted fact that though the plaintiff claims that he is entitled for the relief of partition, he did not make his other sister as party to the suit. The main contention of the plaintiff before the Court is that he contributed money for the purchase of the suit schedule properties and he purchased the properties by paying the entire sale consideration in respect of item Nos.1 to 3. He purchased the same in the name of his mother. It has to be noted that when there is no dispute with regard to the death of the father of the plaintiff in the year 1960 and he was aged about one year at that time and hence it goes back to the date of birth of the plaintiff as 1959. Item No.1 of the suit schedule property was purchased in the year 1981 and it is also an undisputed that the site was allotted by Malleshwaram Tailoring Co-operative Society. It is the claim of defendant No.1 that she was working as a tailor and also in her evidence she says that she has sold the tailoring machine subsequently, but she is not able to mention the name of the purchaser. The plaintiff did not dispute the allotment of the site in favour of his mother i.e., defendant No.1 by Malleshwaram Tailoring Co-operative Society. The very allotment of the site by Malleshwaram Tailoring Co-operative Society discloses that she was doing the tailoring work. The sale of the tailoring machine is also not disputed by the plaintiff except making the suggestion and eliciting answer that she was not able to mention the name of the purchaser. Admittedly, she was getting pension of 8 rupees 10 paise per month at that time and the plaintiff was minor. There is no evidence from the mouth of the plaintiff as to how his mother has maintained the family including his two sisters and the plaintiff from 1960 to 1980, since the plaintiff claims that he started working in the year 1980 as deed writer. No doubt he claims that he was studying in 8th standard when he started working. In order to substantiate the same, he has not placed any material before the Court. It is also important to note that the plaintiff has not examined any witnesses with whom he had worked. He categorically admits that he has not produced any documents to show that in the year 1981 he was earning and paid the sale consideration in respect of item No.1 of suit schedule property.
26. Now the question is with regard to item No.2 of the suit schedule property, which was purchased in the year 1990 in terms of Ex.P.2 and item No.3 which was purchased in the year 1995. It is an admitted fact that after the marriage of the two sisters of the plaintiff, both the sisters were residing separately with their respective husbands. It is also the claim of the plaintiff that he got the job in the year 1986 and his appointment is also on account of death of his father, who died during the service. No doubt he started earning in the year 1986 by joining the Government job. The plaintiff also claims that he started working as deed writer from 1980 onwards. No doubt now he made an application before the Court to show that he has obtained the licence, but no material is placed to show that he was working as a deed writer. No documents is placed before the Court with regard to his income during his job as deed writer. Throughout in the cross-examination in respect of purchasing of item Nos.2 and 3 of the suit schedule properties, he categorically admits that he has not produced any documents to show that he paid the sale consideration to the vendor. He has not examined the vendors of these two properties also to show that he had paid the amount to purchase those properties. It is his categorical admission that he is not having any documents to show that he has paid the sale consideration to the vendors of those three items of the properties. The Court cannot presume the things and there is no dispute with regard to the plaintiff working as a Government employee from 1986 onwards. He categorically admits that he has not produced any documents to show that he was earning in the year 1981. He further admits that he has not produced any documents to show that he purchased item No.3 of the suit schedule property and he paid the entire sale consideration amount to the vendor. These admissions takes away the case of the plaintiff. The defendant No.1 has purchased the property in the year 1981 itself when the plaintiff was aged about 22 years. This Court has also made an observation that the said site was allotted in favour of defendant No.1. Subsequently, the plaintiff might have contributed to the family after joining the service in 1986. But in order to substantiate the contention of the plaintiff, no documentary proof is produced to show that he has paid the sale consideration to the vendor out of his income which he earned.
27. The learned counsel for the appellant made his efforts to show that in Ex.P.9 – assets and liabilities, the plaintiff has declared the property in respect of item No.3 and the sale consideration is mentioned as Rs.2,65,000/- and he also declared that the property stands in the name of his mother. Nowhere in the document, he has declared that out of his savings, he contributed the money for purchasing the item No.3 of suit schedule property, except mentioning the sale consideration. Hence, the document Ex.P.9 will not come to the aid of the plaintiff. None of the documents produced before the Court substantiate the claim of the plaintiff that he paid the sale consideration in favour of the vendor. Except oral evidence, there are no documentary proof.
28. The other contention of the appellant’s counsel is that the Court below has committed an error in answering issue No.3 as affirmative in coming to the conclusion that the suit schedule properties exclusively belongs to defendant No.1. No doubt in the cross-examination, it is elicited that defendant No.1 was not doing any chit business, though it is claimed. It is also important to note that nowhere in her written statement she has contended that she was doing chit business and that she was having jewellery. But her only contention in the written statement was that she purchased the suit schedule properties out of her own earnings and she herself has paid the sale consideration. She also contended that the plaintiff has no right in respect of item Nos.2 and 3 suit schedule properties, which were purchased by defendant No.1 by her self-earned money.
29. This Court while considering the contention of both the plaintiff and defendants has already stated that in between 1960 and 1975, defendant No.1 was not having any income, except pension of 8 rupees 10 paise. When such being the case, there is no explanation on the part of the plaintiff also, except denying that the mother was not having any income. There is no explanation on the part of the plaintiff regarding what was the source of income of defendant No.1 for maintaining the family from 1960 onwards if defendant No.1 was not working. This Court already pointed out that Malleshwaram Tailoring Co- operative Society allotted a site in favour of defendant No.1. It is also her claim that she was doing the tailoring work and subsequently she sold the tailoring machine and the same has not been seriously disputed by the plaintiff, except stating that the mother was not having any income. Admittedly, all the documents in respect of item Nos.1 to 3 stands in the name of defendant No.1. In the absence of any positive evidence before the Court that the plaintiff has contributed the money, the very contention of the plaintiff that his mother was not having any income, cannot be accepted. In the written statement the defendant No.1 has not stated about the avocation of defendant No.1 and has not stated with regard to jewels. But that itself is not a ground to discard the evidence of the defendant. Hence, I do not find any reason to come to other conclusion that the Court below has committed an error in considering both oral and documentary evidence. The plaintiff has failed to prove and substantiate his claim that he has purchased the property out of his own income. In the absence of any documentary proof and only on the oral evidence of plaintiff, this Court cannot reverse the findings of the Trial Court. The appeal is devoid of merits.
30. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/- JUDGE MD