M. Sundar vs M.T. Nagaraju

Anand Byrareddy, J.—This is a plaintiffs appeal.

The parties are referred to by their rank before the trial court for the sake of convenience.

The case of the plaintiff as stated, is as under:

The first defendant is said to be the elder brother of the plaintiff and defendants 2 and 3. They were said to constitute a Hindu joint family, with the first defendant as the Kartha.

It was claimed that property bearing No. 15, G. No. 16th Street, Ulsoor, Bangalore, was joint family property - which however stood in the name of Gangamma, the mother of the plaintiff. It is further stated that the defendants and the plaintiff had entered into an agreement of sale with one K.G. Ashwathnarayanaiah, to purchase his property bearing No. 58, MIG - KHB Colony, I Stage, III Main, Basaveshwaranagar, Bangalore - 560 079 and had paid an advance towards the sale consideration. However, since there was a paucity of funds to pay the balance price, the property at Ulsoor is said to have been sold and the proceeds were said to have been invested in purchasing the property at Basaveshwaranagar. The sale deed is said to have been executed in favour of defendant No. 1, as he was the eldest male member of the family and the Kartha.

It is stated that after the purchase of the above property at Basaveshwaranagar, which consisted of a single residential unit, it was decided to construct a duplex residential unit on the first floor, while also carrying out certain alterations in the ground floor - in order to accommodate all the members of the family, albeit with individual units for each. Additional construction was accordingly made. The property is said to have been re-numbered as 58/8.

It then transpires that differences arose between the plaintiff and the defendants as to expenses incurred in the renovation and additional construction that was effected. Since the plaintiff was unable to reconcile with the defendants, he is said to have opted to separate himself from the joint family and demanded his share of the property. It appears the defendants did not respond and therefore, the suit was filed, in the plaintiff seeking partition of the suit property and his one-fourth share therein.

The defendants had entered appearance and it was contended by the first defendant that there was joint family status as the plaintiff had left the family much prior to the suit. That the claim of the plaintiff as to the property at Ulsoor, which stood in the name of their mother, was true and the further contention that the sale proceeds of the house having been invested in the purchase of the property at Basaveshwaranagar, was denied. Further, the said property being registered in the name of defendant No. 1, in his capacity as the Kartha of the family was also denied. It was contended that he was gainfully employed and was residing at Dubai along with his wife, who was also employed in Dubai. And that they were both earning substantially. It was hence asserted that the suit property was purchased by defendant No. 1 as his absolute property.

It was further claimed that defendant No. 1 and his wife intended to provide education to their children in India and had hence decided to renovate and put up additional construction over the suit property. In this regard, the plaintiff is said to have been entrusted with the task of monitoring the construction activity and providing material and instructions to a third-party agency, which was engaged to carry out the civil works, with the funds provided by defendant No. 1 from Dubai. It is claimed that the Defendant No. 1 was accordingly supplying funds from time to time to the plaintiff. In this regard, defendant No. 1 is also said to have agreed to pay service charges to the plaintiff. It was alleged that the plaintiff had defrauded the defendant No. 1 by indicating inflated accounts and thereby made illegal gains over a period of time during such construction activity, which amount the defendant had roughly estimated at about Rs. 10 lakh.

It was further stated that the plaintiff was engaged as above, as defendant No. 3 was also residing at Dubai and defendant No. 2 was a soft spoken introvert - who did not choose to involve himself in the transaction.

Defendant No. 1 is said to have come to Bangalore in September 1999, when the construction work was partially done, though the entire cost of construction as estimated by the contractor had been provided to the plaintiff. On being questioned, the plaintiff is said to have turned hostile and had refused to offer any explanation for the lack of progress and is said to have refused to account for the monies received by him over time. The defendant No. 1 is said to have lodged a police complaint against the plaintiff in this regard. It is stated that they had then arrived at a compromise only as on 17.8.2000, whereby the plaintiff had acknowledged that the suit property was the absolute property of defendant No. 1 and that the money spent over the construction was Rs. 28,53,500/- and that the amount provided by defendant No. 1 was in a sum of Rs. 24,78,500/-. Defendant No. 1 is said to have willfully paid the difference by way of pay orders. A memorandum of settlement was also said to have been executed in this regard.

It was hence contended that the suit was misconceived and without basis.

Defendants No. 2 and 3, in their joint written statement, had fully endorsed the say of defendant No. 1 that there was no joint family status. They have added that it was defendant No. 1, who was supporting the family with his earnings from his job in Dubai. They had stated that the Ulsoor property which stood in the name of their mother was sold by her during her life time and the proceeds were used for family necessities. And that the suit property was the absolute property of defendant No. 1.

They have also stated that the construction work of the suit property having been entrusted to a contractor, was to their knowledge. And that the plaintiff had been engaged to liaise between the said contractor and defendant No. 1 was also within their knowledge. But they had stated that they were not aware of the particulars of the transaction as between the plaintiff and defendant No. 1. In any event, they have categorically denied that there ever was a joint family as each one of them had been living separately with their families, though they did live along with their parents when they were young and dependant on them.

On the above pleadings, the trial court had framed the following issues:

"1. Whether plaintiff proves that suit schedule property is purchased by nucleus of joint Hindu family property.

Whether plaintiff is entitled for partition and separate possession of his share?

To what share plaintiff is entitled?

Whether defendants prove that suit schedule property is his self acquired property?"

The trial court has held Issues No. 1, 2, 3 in the negative and Issue No. 4 in the affirmative and has dismissed the suit. It is that which is under challenge in the present appeal.

Heard Shri C.M. Nagabushan, appearing for the counsel for the appellant and the learned counsel for the respondents. It is seen that defendant No. 1 has died during the pendency of the suit and is represented by his widow and daughter. Though much emphasis was placed on the circumstance that defendant No. 1 had failed to establish the manner in which the entire funds were provided for the construction and renovation of the suit property. It is noticed that the trial court has placed emphasis on whether the plaintiff had established that the suit property was acquired with the funds of a joint Hindu family or whether it could be said that it was the self acquired property of defendant No. 1.

The trial court has found that the plaintiff had not shown that he had in any manner contributed to the purchase of the suit property, either at the time of the agreement of sale in favour of defendant No. 1 or at the time of the sale in his favour. The further contention that the property in the name of the mother of the parties had been sold in the year 1988 and the suit property was purchased in the year 1990 and there was no material placed before the court to indicate that defendant No. 1 had the benefit of the sale proceeds of the property sold in 1988. And had thus concluded that the plaintiff had failed to establish that the suit property was purchased from out of the joint family funds.

The suit having been dismissed in the above background cannot be faulted.

The further circumstance that Defendants 2 and 3 had fully endorsed the case of defendant No. 1 was also a further circumstance that weighed against the plaintiff.

There is no merit in this appeal and is accordingly dismissed.