Sri Nanjaiah vs Sri Boraiah

A.S. Pachhapurea, J.—The appellant has challenged the judgment and decrees of the Courts below granting one half share to the respondent in item No. 2 of the suit properties and refusing his request for the share in the RCC building situated at Rajajinagar, Bangalore. The facts relevant for the purpose of these appeals are as under:

The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellant herein is the defendant and respondent is the plaintiff who instituted the suit for partition and separate possession of his half share in the suit schedule properties i.e., item Nos. 1 to 5 described in the schedule to the plaint. It is not in dispute that the parties are the only legal representatives being the sons of late Mariyappa and that the suit properties item Nos. 1 to 5 are the joint family properties. The plaintiff was a Government servant and admittedly the suit properties belonged to father of the parties. The plaintiff requested the defendant to effect division in the suit properties. As the defendant did not do so, the suit came to be instituted.

The defendant appeared in the trial Court and contended that the plaintiff has agreed to sell item No. 2 of the suit property for a consideration of Rs. 63,000/- and on 21.9.2000 under the agreement he has received a sum of Rs. 43,500/- agreeing to sell the said item of the suit property within a period of three months by executing a sale deed on receiving the remaining sale consideration and it was also his contention that the plaintiff purchased a site in Rajajinagar, Bangalore and constructed a building over the said site and the income of joint family was utilized to purchase the site and to put up construction of the building. Therefore, he has sought for dismissal of the suit of the plaintiff so far as item No. 2 of the suit property and requested to award share in the building situated at Rajajinagar, Bangalore.

The parties led the evidence. The plaintiff examined himself as PW1 and a witness PW2 and the documents Exs.P1 to P21 were marked. The defendant was examined as DW1 and the witness DWs.2 to 4 and Exs.D1 to D3 were marked. The trial Court after hearing the counsel for the parties and on appreciation of the evidence on record decreed the suit of the plaintiff for partition and separate possession of items 1, 3 to 5 and rejected his request for partition in the RCC building and it held that it was the self acquired property of the plaintiff. Aggrieved by dismissal of the suit in respect of item No. 2 of the suit property the plaintiff preferred an appeal, whereas, the defendant approached the first appellate Court for refusing his share in the RCC building at Rajajinagar, Bangalore. Both these appeals were numbered as RA 128 and 144 of 2006. The first appellate Court heard the appeals on merit and granted half share to the plaintiff in item No. 2 of the suit property directing it to deposit the sum of Rs. 43,500/- with interest at 9%, the amount of part payment made under the sale agreement and refused to grant the share in the building at Rajajinagar, Bangalore. The defendant aggrieved by the judgment and decrees of the Courts below has approached this Court in appeal.

At the time of admission, the following substantial question of law has been raised in both the appeals.

Whether the judgment and decree of the first appellate Court is perverse in misreading the evidence and material on record in grant of decree for partition?

It is the contention of the learned counsel for the appellant that the site and house bearing No. 533 in Block No. 2, Rajajinagar, Bangalore was acquired from the income of the joint family and that there are sufficient joint family properties which form a nucleus and it is sufficient to raise a presumption in law that this building is acquired out of the joint family funds and therefore he contends that it is a joint family property in which the appellant has an equal share. It is also his contention that both the brothers sold the joint family property under Ex.D3 for a consideration of Rs. 40,000/- and this income is utilized to acquire the site and building in Rajajinagar, Bangalore. So also he contends that item No. 2 cannot be a subject matter of the suit as admittedly there is a sale agreement.

It is not in dispute that the plaintiff was an employee of the government and he has produced Ex.P4 an intimation of allotment dated 15.1.1974. This document reveals that the site and the house over it bearing No. 533 at Rajajinagar extension was allotted to the plaintiff on a rent of Rs. 37/- and the plaintiff was directed to credit a sum of Rs. 50/- towards the security deposit. Ex.P5 is the current account pay in slip of the State Bank and it reveals that the plaintiff deposited the said sum on 15.1.1974. Ex.P1 is the sale deed executed by the Karnataka Housing Board on 14.7.1992 and the entire sum of Rs. 10,365/- was paid by the plaintiff. Ex.P6 is the memo and it reveals the allotment of the house bearing No. 533 to the plaintiff. The defendant has not produced any documents to prove the contribution of funds to purchase the site and the building aforesaid. Except his oral version, that the construction on the site was by utilizing the joint family funds, no documents are forthcoming to support the defence. That apart he has not sought for any relief in his written statement and the documents produced by the plaintiff would clearly reveal that in pursuance of the allotment on 15.4.1974, a sale deed was executed in favour of the plaintiff on 14.7.1992 and the amount that was paid both for allotment and to purchase of the house was from the salary of the plaintiff.

Though it is contended that the sale consideration which was received under the sale deed under Ex.D3 was utilized for construction of the building on the site in Rajajinagar, this sale deed was executed on 23.5.2000 i.e. eight years after the execution of the sale deed by the Karnataka Housing Board in favour of the plaintiff. Though there is some evidence that in the year 1997, there was renovation of the building, there is no evidence of any contribution of money by the defendant for the said renovation and the consideration that was received under Ex.D3 in the year 2000 cannot be of any help to the defendant to show the contribution either to acquire the site or the house.

That apart the plaintiff has examined PW2 the son of the vendee of the property under Ex.D3 and he states that the sum of Rs. 40,000/- was paid in the hands of both the parties to the suit. So, except the interested and self serving testimony of the defendant, having contributed Rs. 40,000/- for the construction of the building and purchase of the site, there is no other material placed on record to prove that the site and house at Rajajinagar was acquired by utilizing the joint family income. Though Ex.D1 is another agreement between the parties dated 21.9.2000, the plaintiff had received a sum of Rs. 43,500/- under this agreement, it is of no help to the defendant as this payment was in the year 2000 and the building was constructed either in the year 1997 or much prior to it. Therefore, the material placed on record by the defendant is insufficient to hold that the building in the name of the plaintiff at Rajajinagar, Bangalore, is the joint family property.

Both the Courts below after referring to these documents and the evidence of the parties and on appreciation of the same have held that it is not joint family property and therefore have rightly refused to grant any share to the defendant. That apart, the learned counsel for the respondent has placed reliance on the decision of the Apex Court reported in Gurdev Kaur and Others Vs. Kaki and Others, , wherein the Apex Court referring to the provisions of Section 100 CPC held that interference by the High Court in the second appeal is limited to the question of law and a finding however wrong or grossly inexcusable is not liable to be interfered with.

Applying the principle laid down in the aforesaid decision and even considering the facts and the findings of the Courts below, the appellant has not made out any grounds to interfere with the said findings.

Both the Courts below have held that the plaintiff executed an agreement of sale on 21.9.2000 by receiving a sum of Rs. 43,500/- to sell his undivided interest in suit item No. 2 to the defendant. Ex.D1 is the said agreement and there is no dispute between the parties that such agreement was entered into by them. Perusal of the agreement reveals that the plaintiff agreed to sell item No. 2 of the suit property for a consideration of Rs. 63,000/- and the extent shown in this agreement is 36 guntas. So, relying upon this agreement it is the contention of the learned counsel for the appellant that the plaintiff having agreed to sell item No. 2 to the defendant cannot seek partition in the said item as he has agreed to sell his interest in it and it cannot be the subject matter of the suit. He also submits that the trial Court having dismissed the suit so far as item No. 2 is concerned, the first appellate Court committed an error in granting a share to the plaintiff in this item and directing the plaintiff to deposit the sum of Rs. 43,500/- with interest at 9% in the proceedings before the trial Court. Admittedly, item No. 2 is a joint family property. It is well established principle of law that an agreement does not confer any rights to the parties in the immovable property, if the value of such property is more than Rs. 100/- and on this aspect of the matter it is essential to refer to the provisions of Section 54 of the Transfer of Property Act. As defined under the aforesaid provision, ''sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised and this section also provides that in case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. But if the value is more than Rs. 100/-, there has to be a registered document. So far as a contract for sale is concerned, it is stated therein that such a contract for sale of immovable property shall take place on terms settled between the parties and it does not, of itself, create any right or interest in or charge on such property. So, even accepting the contention that there is an agreement under Ex.D1 executed by the plaintiff in favour of the defendant, this contract does not create any right or interest in the immovable property for the sole reason that it is for a consideration of Rs. 63,000/- and the document is not registered. Under the aforesaid agreement, the plaintiff has agreed to execute a sale deed within three months from the date of execution of the agreement. The person in whose favour this agreement Ex.D1 is executed, has a right to seek specific performance of the contract. The Court while considering the share of the parties in a suit for partition cannot refuse the share on the basis of an agreement of sale which does not create any interest in the property. But it can leave option to the parties to seek enforcement of their rights that accrue to them under the agreement.

Though the defendant has not approached the Court with a suit for specific performance of the contract, his right to institute the suit cannot be curtailed in the present suit. The first appellate Court has directed the plaintiff to deposit Rs. 43,500/- the part of the sale consideration received with interest at 9%. The learned counsel for the respondent has submitted before this Court that a sum of Rs. 75,500/- has been deposited by the plaintiff in FDP 5/2006 on 30.8.2008 inclusive of interest at 9% as ordered by the first appellate Court. This direction of the first appellate Court without giving a choice to the appellant to enforce the terms of the contract under Ex.D1 is invalid for the sole reason that the rights under sale Ex.D1 cannot be determined in this suit and the rights of the appellant cannot be curtailed by directing him to deposit the said sum. It appears that the first appellate Court considering the non-filing of a suit for specific performance and to do equity appears to have directed the plaintiff to deposit the said sum and allowed the appeal of the plaintiff directing the division in item No. 2 of the suit property as well.

Though this direction may be equitable, it curtails the rights of the appellant to seek enforcement of the contract. It appears just and proper to give a choice to the appellant either to receive the said sum or to seek specific performance of the contract by instituting a suit in that regard. Therefore, as item No. 2 is a joint family property as admitted by the parties has to be a subject matter of the partition suit until the execution of a sale deed by the plaintiff voluntarily or in pursuance of a decree in a suit for specific performance if instituted. But, merely because that there is such an agreement executed by the plaintiff, is itself insufficient to reject his claim for partition as Ex.D1 the contract of sale does not create any interest in the immovable property though it gives a right to the appellant herein to seek its enforcement. So, the parties will have to be given a choice either to receive the sum deposited by the respondent herein before the trial Court or a discretion to enforce the contract of sale under Ex.D1. To this extent, the judgment and decree of the first appellate Court require modification. Hence, the substantial question of law raised is answered partly in affirmative and partly in negative. Consequently, the appeals are allowed in part affirming the judgment and decrees of the Courts below. The grant of share to the respondent in item No. 2 of the suit properties as ordered by the first appellate Court is affirmed reserving liberty to the appellant (the defendant) either to receive the sum deposited in FDP 5/2006 within six months from today or to seek specific performance of contract of sale between the parties under Ex.D1.