IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO.1330/2006 (PAR) BETWEEN ILYAS S/O GHOUSE KHAN @ JULESAB MEHBOOB BI AGED ABOUT 60 YEARS R/O MUSLIM BLOCK MADDUR TOWN MANDYA DISTRICT – 571 428 …APPELLANT (BY SRI CHANDAN S. RAO, ADVOCATE) AND :
1. AMEER JAN @ PAPA S/O GHOUSE KHAN MEHBOOB BI @ JULESAB AGED ABOUT 63 YEARS ELECTRICAL CONTRACTOR, BHAGYAJYOTHI ELECTRICALS LEELAVATHI EXTENSION MADDUR TOWN MANDYA DISTRICT – 571 428 2. AMEER JAN AGED ABOUT 65 YEARS WIREMAN KEB CHANNAPATNA BANGALORE RURAL DISTRICT – 571 505 3. CHOTA JAN S/O MAHABOOBBI AGED ABOUT 63 YEARS ELECTRICIAN, 7TH CROSS RAMANAGAR MADDUR TOWN MANDYA DISTRICT – 571 428 …RESPONDENTS (BY SRI J.SUDHAKAR, ADVOCATE R2 & R3 DELETED VIDE COURT ORDER DATED 10.10.2006) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 25.02.2006 PASSED IN R.A.NO.52/2003 ON THE FILE OF THE CIVIL JUDGE(SR.DN), MADDUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.10.2003 PASSED IN O.S.NO.438/1991 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC, MADDUR.
THIS RSA COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The plaintiff in OS.No.438/1991 on the file of Civil Judge (Jr.Dn), Maddur, has come up in this second appeal impugning the concurrent findings of both the courts below in dismissing his suit for partition and alleged separate possession in the suit schedule property.
2. The brief facts leading to this second appeal are as under:
The suit in OS.No.438/1991 is filed by the appellant herein against his brother Ameer Jan @ Papa, who is the proprietor of Bhagyajyothi Electricals and a registered Electrical Contractor, residing at Maddur Town. Though the suit was filed initially against Ameer Jan @ Papa, subsequently it was amended by including the names of two other persons, namely Ameer Jan s/o Mahaboob Bi and Chota Jan s/o Mahaboob Bi. The suit schedule property is property bearing Nos.435/425 and 436/426, situated at Maddur Town, Muslim Block consisting of vacant site and RCC building thereon.
3. Admittedly, the plaintiff – Ilyas and 1st defendant – Ameer Jan @ Papa are sons of one Mahaboob Bi through her first husband, whose name is not stated in the plaint. It is stated that subsequently, the mother of plaintiff and 1st defendant Mahaboob Bi married another person and through him she got two more sons, who are subsequently impleaded as defendant Nos.2 and 3, who are Ameer Jan and Chota Jan. The suit is filed contending that the suit schedule property consisting of two half sites situated within the limits of Maddur Municipality was purchased by their mother Mahaboob Bi with an intention to give it to her two sons each one, one site. It is stated that two years prior to filing of the suit, Mahaboob Bi died. Subsequently, 1st defendant got the katha of suit property changed to his name clandestinely behind the back of plaintiff without informing him. Hence, the suit is filed seeking partition of the suit property between the plaintiff and 1st defendant.
4. In the said suit, on service of summons 1st defendant entered appearance and filed written statement. Wherein, it was stated that the suit is bad for non joinder of parties for the reason that Mahaboob Bi had in all 4 sons viz., besides the plaintiff and 1st defendant she had 2 more sons, namely Ameer Jan and Chota Jan. It was denied that the suit schedule property was the absolute property of Mahaboob Bi. It was further denied that 1st defendant in collusion with the municipal authorities got the katha of suit property clandestinely transferred to his name after the death of his mother. The defendant had also denied the other averments in the plaint.
5. According to 1st defendant, Mahaboob Bi in all had 4 sons. After attaining majority all of them got divided and they are living separately from past 25 years. The family of Mahaboob Bi did not have any movable or immovable property when they were living in joint before division and it is the 1st defendant, who is 4th son of Mahaboob Bi was taking care of her during her lifetime after all the brothers got divided and started living separately by providing food, shelter, medical care and all other facilities to his mother keeping her with him. It is stated by 1st defendant that the plaintiff who was residing at Maddur left for Bangalore and settled there for doing business, 2nd son took up job at Channapatna as a lineman in KEB and 3rd son was also an Electrical Contractor at Maddur. It is further stated by 1st defendant that it is he, who is the youngest of 4 sons of Mahaboob Bi, working as an electrical contractor at Maddur purchased half of the suit schedule property on 27.10.1977 from one Syed Pasha Saheb and got the same registered in the name of his mother which is bearing No.435/425 and measuring east to west 45 feet and north to south 17½ feet. It is also the case of 1st defendant that at the time of construction of house on suit property he has sold all the jewels of his wife, borrowed money and constructed house thereon. According to 1st defendant, the second half portion of suit property was purchased in his name on 12.10.1981 and the investment for purchase of both portions of suit property is by himself.
6. According to 1st defendant, both portions of suit property are his self acquired property and the corpus for acquiring the same is from out of his personal savings, borrowings, generating funds, from disposing off all the gold jewels of his wife and other movable properties in the house, which according to him was known to all his brothers. Subsequently, after the death of his mother, he got transferred the property which was purchased by him in her mother’s name to his name. 1st defendant also contended that in the event if the court comes to the conclusion that the plaintiff is entitled to any share, it will be only 1/4th of the property which was standing in his mother’s name i.e, though the plaintiff has not contributed anything if he is found to be legally entitled to any share it cannot be more than 1/4th and if such a share is found to be given, it should be quantified in terms of monetary relief but not with reference to a share in the immovable property.
7. In the said suit, the other defendants also filed written statement, wherein they supported the defence taken by 1st defendant that it is 1st defendant who is the youngest son of Mahaboob Bi who took care of his mother till her last breath. They also stated that their mother did not have any independent income of her own nor she owned any movable or immovable property from which the suit property could be purchased by her. In the nutshell, the written statement filed by defendant Nos.2 and 3 is in similar lines with the defence taken by 1st defendant. Defendant Nos.2 and 3 also took up a defence that they are not necessary parties to the suit as they are not entitled to any share in suit schedule property and suit should be dismissed as against them.
8. With the aforesaid pleadings, the court below framed the following issues:
1. Whether the plaintiff proves that he is entitled for half share in the S.S.P ?
2. Whether the plaintiff proves that he is entitled for an order of enquiry as per order 20.R.12 C.P.C for mesne profits ?
3. Whether the 1st defendant proves that he is the absolute owner of S.S.P ?
4. Whether the 2nd and 3rd defendants are entitled for 1/4th share in the S.S.P ?
5. Whether this court has no pecuniary jurisdiction to try this suit ?
6. To what reliefs, parties are entitled ?
7. What order or decree ?
Thereafter the matter went in to trial, wherein on behalf of the plaintiff he examined himself as PW.1 and he also examined two other persons by name Sab Jan as PW.2 and Basha Sab as PW.3. The sum and substance of their evidence is similar to the pleadings in the plaint.
9. However, in the evidence of PW.1-plaintiff there was an attempt on his part to improve his case by contending that at the time of purchase of suit schedule property by his mother he had borrowed a sum of Rs.15,000/- from his father-in-law and had given the same to his mother for purchasing the suit property for the benefit of joint family of himself and his brothers. The plaintiff also stated that immediately after the death of his mother, he went and requested the 1st defendant to divide the suit property and to give his share. Since 1st defendant refused to do so, he has filed the present suit for partition. Though the plaintiff has stated in his examination-in-chief that he had paid a sum of Rs.15,000/- for purchase of suit property he was not able to demonstrate the same in his cross-examination and miserably failed.
So far as PWs.2 and 3 are concerned, they are the close relatives of plaintiff and defendants. They tried to assert that the suit property was purchased by Mahaboob Bi from out of her own income. However, they failed to establish that she had independent source of income to purchase the suit property.
10. Per contra, on behalf of defendants, 1st defendant adduced evidence as DW.1, wherein he was able to produce the original sale deeds of both portions of suit property, the tax paid receipts, passbooks of the property register and other documents to show that he has been in possession and enjoyment of the suit property from the date of purchase till date of filing of the suit by plaintiff. He was also able to demonstrate his defence through other independent witnesses namely Chikka Venkataiah – DW 2, who constructed the house on suit schedule property at the instructions of 1st defendant and his mother. DW.3 – Syed Mokthar is the neighbour of 1st defendant who had seen the acquisition of property by 1st defendant in the name of his mother, subsequent development taken up by him by borrowing money from the financial institutions, constructing the house thereon, being in possession and enjoyment of the same uninterruptedly from the date of acquisition of suit property till date of filing of the suit. DW.4 – Puttaswamy is a person who did carpentry work to the house constructed on suit schedule property. PW.5 – Payaz Pasha is a relative of both plaintiff and 1st defendant who spoke about the acquisition of suit property by 1st defendant from out of his savings.
11. The court below on appreciation of the pleadings and evidence available on record proceeded to answer the 1st issue with reference to plaintiff’s entitlement for half share in suit schedule property and 2nd issue with reference to seeking an enquiry under order 20 Rule 12 of CPC for mesne profits in the negative. With reference to 3rd issue whether 1st defendant proves that he is the absolute owner of suit schedule property is answered in the affirmative. The 4th issue with reference to whether 2nd and 3rd defendants are entitled for 1/4th share each in the suit schedule property is answered in the negative. The 5th issue regarding pecuniary jurisdiction of the court to try the suit is answered as does not survive for consideration and consequently, dismissed the suit of plaintiff by judgment and decree dated 14.10.2003.
12. As against the judgment and decree of court below the plaintiff had preferred an appeal in RA.No.52/2003, wherein the lower appellate court on the basis of grounds urged in the appeal framed in all 4 points for consideration, which are as under:
1. Whether plaintiff proves that he is entitled to partition and separate possession of the half share in the suit schedule property ?
2. Whether the plaintiff is entitled for mesne profits ?
3. Whether the defendant No.1 proves that the suit schedule property is his absolute property ?
4. Whether the impugned judgment is perverse and call for interference ?
5. What order ?
Thereafter, the lower appellate court on re- appreciation of the pleadings, oral and documentary evidence available on record proceeded to answer 1st and 2nd points for consideration, which are similar to issue Nos.1 and 2 in the court below, in the negative against the appellant. So far as 3rd point for consideration, which is similar to issue No.3 in the court below regarding 1st defendant proving suit schedule property as his absolute property in the affirmative and 4th point for consideration which is with reference to whether the impugned judgment is perverse and calls for interference is answered in the negative and consequently, dismissed the appeal. As against the concurrent findings of both the courts below the plaintiff in the original suit has preferred this second appeal.
13. When this appeal came up for admission on 20.1.2010, the same was admitted to consider the following substantial questions of law:
1. Admittedly, when the sale deed dated 12.10.1981 was in the name of the mother of the appellant, whether it could be treated as a property of the respondent no.1 in the face of Benami Transactions (Prohibition) Act, 1988 ?
2. Whether the courts below could have in view of this glaring circumstance proceeded to reject the suit of the appellant ?
Heard Sri.Chandan, the learned counsel for appellant and Sri.J.Sudhakar, the learned counsel for respondents. On re-appreciation of the material on record in the light of grounds and as well as the substantial questions of law, this Court would answer the first substantial question of law in the affirmative against the appellant holding that the provisions of Benami Transactions (Prohibition) Act, 1988 are not attracted to the facts on hand and second substantial question of law also in the affirmative for the following reasons:
14. Admittedly, the plaintiff, 1st defendant and the other two defendants, who are impleaded subsequently are 4 sons of deceased Mahaboob Bi in whose name half portion of the suit schedule property stood as on the date when she died, which is 9 years prior to the date of filing of present suit for partition, which was on 8.8.1991 by her eldest son Ilyas, the plaintiff. Though plaintiff in the original suit contends that the suit schedule property, namely two portions of the same property situated in Maddur Town belonged to his mother, the documents which are produced and marked on record as Exs.D1 and D2 – sale deeds would clearly indicate that the said property was purchased in two bits of 45’x17½’, one portion was purchased in the year 1977 in the name of Mahaboob Bi and second portion was purchased in the name of 1st defendant in the year 1981 thereby indicating that the entire extent of 35’x45’, which is registered under two separate municipal numbers was one property and the same was purchased by 1st defendant utilizing his personal funds.
15. The pleadings on record would indicate that Mahaboob Bi had in all 4 sons, 2 through her 1st husband, other 2 through another husband; about 25 years prior to the date of filing of suit all the sons and mother got separated from joint residence; each one started living independently; they belonged to economically weaker section; they did not have any movable or immovable assets; the jointness which is seen was only in boarding and lodging and nothing more than that. The records would also show that no assets stood in the name of the family members when each one of them started living separately. The records would further show that the plaintiff came to Bangalore to do business, which he has not denied; the 2nd son i.e., 2nd defendant in the court below is a lineman in KEB which he accepts; the 3rd son is also an electrical contractor and he also admits that he is staying separately and it is the 1st defendant who is the youngest son of Mahaboob Bi took the responsibility of taking care of his mother, who did not had any independent source of income or any asset standing in her name. The records would also clearly indicate that her food, shelter, the medical need and all other welfare things required for her were looked after by her youngest son, namely 1st defendant in the court below. It is he viz., 1st defendant who has purchased a portion of suit schedule property in the name of his mother.
16. The records would indicate that the plaintiff was not able to demonstrate that his mother had any avocation or independent source of income either from avocation or from immovable property generating income in her name. Per contra, it is demonstrated by the 1st defendant that he is a licensed electrical contractor, has been doing business, an assessee of income-tax, had sufficient income, who also borrowed some portion of money to purchase the suit property, developed the same in to a residential use and as well as commercial property, has let out a portion of the same and in another portion he is residing along with his family members. Further the records would indicate that though in the pleadings the plaintiff did not plead any contribution for acquisition of the suit property by his mother, he had made an attempt to improve his plea while adducing evidence in stating that he has contributed a sum of Rs.15,000/- for purchase of the suit property in his mother’s name by borrowing the same from his father-in-law. Though such an attempt is made by the plaintiff, he was not able to demonstrate the same by adducing cogent evidence to support the same. Therefore, the court below has rightly rejected his plea and accepting the defence taken by 1st defendant which is supported by defendant Nos.2 and 3 proceeded to dismiss the suit of the plaintiff. It is seen that the lower appellate court also on re-appreciation of the pleadings and evidence available on record has rightly rejected the appeal filed by the plaintiff.
17. However, when this matter came up before the court, a ground was raised that the transaction regarding purchase of property in the name of Mahaboob Bi by 1st defendant amounts to a benami transaction and the same would be hit by the provisions of the Benami Transactions (Prohibition), Act 1988. However, when this matter is taken up for final hearing, this Court observed that the aforesaid Act does not have any application to the present case on hand in view of Section 2(9) of the Act, which reads as under:
2(9) ‘benami transaction’ means (a) x x x x (b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, Except when the property is held by – (i) x x x x (ii) xx x x (iii) x x x (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or Since in the instant case 1st defendant having purchased the same from out of his own savings in the name of his lineal ascendants, namely his mother, the aforesaid transaction is not hit by the provisions of aforesaid Act. Therefore, 1st substantial question of law is answered accordingly.
18. In the light of aforesaid discussion and also in the light of the fact that there is sufficient material to demonstrate that the 1st defendant who is an electrical contractor having sufficient income was able to demonstrate before the court below that the suit property was purchased by him in his mother’s name, thereafter for developing the same he has borrowed the amount, for having borrowed the amount and having cleared the same he has produced records, which is rightly accepted by both the courts below while rejecting the prayer of plaintiff for partition of the suit property as if it was the absolute property of his mother, deceased Mahaboob Bi.
19. In that view of the matter, by answering the second substantial question of law also in the affirmative, this Court find that this second appeal filed by the plaintiff in OS.No.438/1991 on the file of Civil Judge (Jr.Dn), Maddur, fails, consequently, the judgment and decree dated 14.10.2003 passed therein, which is confirmed in RA.No.52/2003 on the file of Civil Judge (Sr.Dn), Maddur, by judgment and decree dated 25.2.2006 are hereby confirmed.
Sd/- JUDGE nd/-