Judgment:
(Prayer: This Appeal Is Filed Under Section 96 Of The Code Of Civil Procedure, Against The Judgment And Decree Dated 08.09.2011 Passed In O.S. No. 104/2004 On The File Of The Senior Civil Judge, Virajpet, Partly Decreeing The Suit For Partition And Separate Possession And Etc.,)
1. The appellants were the plaintiffs in OS No 104 of 2004, on the file of Civil Judge (Sr Dn), Virajpet. Being not satisfied with the judgment and decree dated 8-9-2011 passed in the said suit, the plaintiffs have preferred this appeal.
2. For the sake of convenience, the parties would be referred to as per their ranking in the trial court.
3. The plaintiffs are the children of defendants 1 and 2. First defendant is the father and the second defendant is the mother. Defendants 3 and 4 are Canara bank and its divisional manager, from whom the defendants 1 and 2 have borrowed a loan. The plaintiffs filed the suit seeking partition and separate possession, contending that suit 'A' and 'B' schedule properties are joint family properties. According to them, 'A' schedule property is an ancestral property and out of the income from the 'A' schedule property, the first defendant has purchased the properties mentioned in the schedule 'B' to the plaint in the name of second defendant and therefore the plaintiffs have a right to claim share in all the suit schedule properties. According to them, though there was no need for the defendants 1 and 2 to avail a loan from the Canara bank, the Canara bank, by creating documents, is trying to bring the 'A' and 'B' schedule properties for auction and therefore the suit was filed.
4. The defendant-bank contested the suit. According to the bank, the plaintiffs, at the instance of defendants 1 and 2, have filed the suit on false and frivolous grounds to avoid the decree obtained by the bank under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for short, the Act]. According to them, the first and the second defendants are liable to pay a sum of Rs 8.00 lakh and in the circumstance by invoking the provisions of the Act, an order is obtained by the defendant-bank. In the circumstance, the bank requested the court to dismiss the suit.
5. Based on the above pleadings, the trial court framed the following issues:
1. Do plaintiffs prove that suit property is the joint and exclusive property of the plaintiffs and defendants 1 and 2 under the management of first plaintiff?
2. Do they prove that second defendant has no authority over schedule property for the alleged loan to bind on the entire family?
3. Do they prove their 3/5th share in the "A" and "B" schedule properties?
4. Do they entitle for the relief of partition and separate possession as prayed?
5. Do defendants 3 and 4 prove that they are not necessary parties to the suit and the suit is not maintainable against them?
6. What order or decree?
Addl. Issue:
1. Whether defendant No.3 and 4 prove that suit is not maintainable in view of the Provisions of Sec. 34 and 35 of the Securitisation of Reconstruction of financial Assets and Enforcement of Security Interest Act, 2002?
6. In order to prove their respective contentions, the first plaintiff was examined himself as PW1 and also relied upon the evidence of one Sampath as PW2 and ExP1 to 7. On behalf of the defendant-bank, one Alfred D'Souza was examined as DW1 and relied on ExD1 to 21. The trail court, after considering the entire evidence let in by the parties, answered issues 1, 3, 4 and 5 partly in the affirmative, issue No 2 and the additional issue in the negative and ultimately the suit of the plaintiffs came to be decreed declaring that each of the plaintiffs are having 1/5th share in plaint 'A' schedule property and dismissed the suit in regard to plaint 'B' schedule properties. Aggrieved by the judgment and decree of the trial court in not granting a decree in respect of 'B' schedule properties, the present appeal is filed.
7. Heard the learned counsel for the appellants- plaintiffs.
8. The main contention of the learned counsel for the appellants-plaintiffs before us is that the trial court did not appreciate the evidence properly. According to him, the second defendant had no independent income of her own to acquire the 'B' schedule properties, since she is only a house-wife. The 'B' schedule properties were purchased by the first defendant in the name of second defendant out of the income derived from the plaint 'A' schedule property. In the circumstance, he requests the court to allow the appeal and modify the judgment and decree of the trial court.
9. Having heard the learned counsel for the appellants, we do not see any merits in this appeal to interfere with the judgment and decree passed by the trial court, for the following reasons. The trial court has dismissed the claim of the plaintiffs in regard to 'B' schedule properties on two grounds. According to trial court, during the lifetime of their mother, the plaintiffs cannot claim a share in respect of her properties. Secondly, the 'B' schedule properties are self-acquired properties of the mother of plaintiffs.
10. In so far as the nature of 'B' schedule properties is concerned, ExP1 is the sale deed, which discloses that the second defendant has purchased the properties under a registered sale deed of the year 1980, when all the plaintiffs were minors. She has purchased the properties from one Charamanna for a sale consideration of Rs 25,000/-. When the plaintiffs contend that the said properties were acquired in the name of second defendant out of the joint family income, it is for the plaintiffs to produce documents to show how the properties were acquired. For the reasons best known to the defendants 1 and 2, they have not stepped into the witness box. On behalf of the plaintiffs, only first plaintiff has been examined as PW1, who had no personal knowledge to speak about the consideration paid by the second defendant while purchasing the 'B' schedule properties, since he was a minor at that time. In addition to this, first plaintiff was examined as RW1 in FDP No 16 of 2007, wherein, he has clearly admitted that the 'B' schedule properties as self-acquired properties of his mother. The same has been discussed by the trial court in para-10 of the judgment. When the first plaintiff has admitted in FDP No 16 of 2007 that the 'B' schedule properties are self-acquired properties of his mother, the question of seeking a share in the said properties does not arise at all. Even otherwise, he has not explained the circumstances under which the said admission was made in order to hold that the deposition made by the first plaintiff in FDP No 16 of 2007 as incorrect deposition.
11. In the circumstances, we do not see any merits in this appeal. Accordingly, appeal is dismissed.