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MFA No.399 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2023 PRESENT THE HON'BLE MR. JUSTICE ALOK ARADHE AND THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE MISCELLANEOUS FIRST APPEAL NO.399 OF 2017 (FC)
BETWEEN:
SMT. SHANTHA S. CHANDRA W/O M.N. SRIRAMACHANDRA AGED ABOUT 54 YEARS.
SRI. M.S. PRAVEEN S/O M.N. SRIRAMACHANDRA AGED ABOUT 32 YEARS.
BOTH ARE R/AT NO.261, 7TH "B" MAIN ROAD BEHIND JNANESWARI SCHOOL HEBBAL, 1ST STAGE, MYSORE NOW R/AT SHANTHARAMA NILAYA BEHIND INDUSTRIAL ESTATE VIDHYANAGAR, B.H. ROAD TUMAKURU. …APPELLANTS (BY SRI. K.N. NITISH, ADV.,) AND:
SRI. M.N. SRIRAMACHANDRA S/O LATE M.P. NARASINGARAO NO.298, 6TH CROSS, 2ND MAIN SANJEEVINI CIRCLE, LOKANAYAKA NAGAR HEBBAL, MYSORE.
SANTHOSH .S S/O LATE L. SHIVANNA HOUSE NO. 261, 1ST FLOOR
Digitally signed by RUPA V Location: High Court of Karnataka
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7TH "B" MAIN, 1ST STAGE HEBBAL, DEVARAJA MOHALLA MYSORE. …RESPONDENTS (BY SRI. ABUBACKER SHAFI, ADV., FOR R1 V/O DTD:21.1.2022 NOTICE TO R2 IS D/W) - - -
THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED:15.11.2016 PASSED IN O.S.NO.32/2013 ON THE FILE OF THE PRINCIPAL JUDGE FAMILY COURT, TUMAKURU, DECREEING THE SUIT FILED U/O 7 RULE 1 OF CPC.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, ANAND RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 19(1) of the Family Courts Act, 1984 (hereinafter referred to as 'the Act of 1984') impugning the judgment and decree passed in O.S.No.32/2013 on the file of Family Court at Tumakuru. The defendants 1 and 2 are in appeal as the suit filed by the plaintiff is decreed in part declaring 1/2 share in favour of the plaintiff.
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Facts in brief.
The plaintiff who is the husband of 1st defendant and father of 2nd defendant, filed a suit in O.S.No.32/2013 seeking partition of the suit schedule properties and claiming 3/4th share in the suit schedule properties on the premise that the suit schedule properties are purchased by him in the name of his wife.
The plaintiff contended that he married the 1st defendant on 02.02.1976 and he was working in Mangalore from 01.10.1974 to 28.11.1981. Thereafter, he shifted to Libia and worked in Libia from 02.12.1981 to 01.12.1986. He further contended that from 10.08.1991 to 31.08.1991 he worked in Qatar and from 22.04.1995 to 04.05.1996 he worked in Dubai. It is also his contention that he was having sound income when he was working abroad and transferred the money to his wife and his wife purchased suit schedule properties in her name from the money transferred by
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him. It is also his contention that the relationship between the husband and wife has got strained and the wife is asserting her right over the suit schedule properties as such, the husband filed suit claiming a 3/4th share in the suit schedule properties and he further prayed that 1/4th share be given to his wife towards maintenance.
The wife and 2nd defendant-son contested the suit. The contesting defendants contend that the suit is not maintainable before the Family Court. It is also contended that the suit for partition and separate possession of the properties is not maintainable without the relief of declaration of title. In addition, the wife has taken contention that she purchased the suit schedule properties from her income and not from the income of the husband. It is further contention of the contesting defendants that even before the suit is filed, item No.6 property was sold vide sale deed dated 09.09.2010 to
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one Nataraj and item No.4 property is transferred to Naveen, the son of 1st defendant vide sale deed dated 26.05.2011. The suit was filed on 18.07.2011. Both Naveen and Nataraj are not parties to the suit and the suit is not maintainable on this count. It is further contended that items Nos.3 and 5 are the properties transferred to the 2nd defendant Praveen vide gift deed dated 02.07.2011.
As far as item No.1 property is concerned, the contesting defendants have admitted the fact that the said property belongs to the plaintiff. As far as item No.8 is concerned, it is contended that the said property was taken on lease and by the time suit was filed, the property is vacated and handed over to the landlord and the contesting defendants do not have any right on the property.
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Based on the pleadings, the Family Court has framed three issues: 1. Whether the plaintiff has proved that the scheduled properties are his self- acquired properties?
Whether the 1st defendant has proved that items No.2 to 7 of the scheduled properties are her self- acquired properties purchased out of her earnings from tailoring and giving tuition? 2. Whether the plaintiff is entitled to share in the scheduled properties? If so, at what rate?
Whether the plaintiff is entitled to mesne profits?
To substantiate his contention, the plaintiff examined himself as PW-1 and he has also examined his mother as PW-2, his brother as PW-3. Another brother was examined as PW-4, whose evidence was
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later discarded as he has not been subjected to the cross-examination. Husband got marked 17 documents. The wife examined herself as DW-1 and her mother as DW-2. 16 documents were marked on her behalf.
Heard the learned counsel for the parties. The Family Court, on considering the materials available on record, has decreed the suit in part. No decree is passed in respect of items Nos.1 and 8 properties. The Family Court granted a decree for the partition of item Nos.2 to 7 properties, holding that husband is entitled to 1/2 share in the above said properties. Being aggrieved by the aforesaid judgment and decree, defendants 1 and 2 are in appeal. The husband has not filed any appeal in respect of the claim which is rejected by the Family Court.
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Heard the learned advocate appearing for the appellants and the learned advocate appearing for the respondents.
Learned counsel for the appellants would submit that the Family Court had no jurisdiction to entertain the suit for partition and separate possession. It is also urged that without seeking a declaration of title suit is not maintainable. It is also his contention that the suit for partition is not maintainable before the Family Court and the prayer seeking 3/4th share in the suit schedule properties has no basis and the finding of the Family Court granting 1/2 share in the suit schedule properties, is again without any basis. It is also his contention that the properties at items Nos.3 to 6 were alienated before the filing of the suit, as such, the suit is not maintainable without impleading the persons who have acquired the properties before the filing of the suit. It is also his contention that no
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evidence is adduced before the Court to show that the properties are acquired out of the money transferred by the plaintiff. In support of aforesaid contention relating to the jurisdiction, learned counsel for the appellants has also relied upon the judgment of this Court in GENU AND OTHERS Vs. JALABAI AND OTHERS1.
Learned counsel for the respondents, while referring to the reasoning assigned by the Family Court from paragraphs 24 to 32, would justify the judgment passed by the Family Court and would submit that though the Family Court has awarded only 1/2 share, the husband is accepting the judgment and decree. He contends that the husband had sufficient income and transferred the same to the wife and the wife had purchased some properties from that income.
1 ILR 2009 KAR 612
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We have considered the contentions raised by the learned counsel for the parties. The points that arise for our consideration are:
(1) Whether the Family Court has got the jurisdiction to entertain the suit in respect of properties owned by the persons who are not parties to the marriage?
(2) Whether the plaintiff proves that the properties are purchased by the 1st defendant from the money transferred by the plaintiff?
(3) Whether the 1st defendant proves that she purchased the suit properties from her own income?
Section 7 of the 1984 Act reads as under: 7. Jurisdiction.—(1) Subject to the other provisions of this Act, a Family Court shall—
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
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(b) be deemed, to exercise such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation.—The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely:— (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; 5 (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
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(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise— (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment
Explanation to Section 7(1)(c) of the Act, 1984 would make it clear that the suit for partition before the
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Family Court is maintainable between the "parties to the marriage" with respect to the property of the party or of either of them.
Admittedly, in this case, the 2nd defendant who is the son of the plaintiff and 1st defendant, is not a party to the marriage. Moreover, one of the properties namely item no.6 is sold to one Nataraj before filing of suit. He is not even a member of the family. From the records, it is apparent that properties at items Nos.3 to 6 are the properties transferred before the institution of the suit and those properties are standing in the name of the persons who are not parties to the marriage. This being the question, there is no difficulty in holding that the suit in respect of items Nos.3 to 6, is not maintainable. The Family Court has not considered this aspect and without referring to Section 7 of the Act of 1984, has erroneously proceeded to grant a decree of partition in respect of item Nos.3 to 6 properties. The
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judgment referred to by the learned counsel for the appellants in GENU AND OTHERS, supra, applies to the facts and circumstances of the case in so far as item Nos.3 to 6 properties.
Therefore, the first point is answered in favour of the appellants and the suit in respect of aforesaid properties at items Nos.3 to 6 is held to be not maintainable for want of jurisdiction.
As far as item No.1 property is concerned, the defendants 1 and 2 in the written statement, have fairly stated that the said property belongs to the plaintiff and she has no claim over the said property and the Family Court has also not granted any decree in the aforesaid property.
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As far as item No.8 is concerned, the property was taken on lease by the wife and she has vacated the property before the institution of the suit. Thus, the Family Court has not granted any relief in respect of the property at item No.8.
This being a position, this Court is only concerned about items Nos.2 and 7 properties referred to in the plaint. The burden of proving the fact that items Nos.2 and 7 are his self-acquired properties, is on the husband. He must establish that he has transferred money to his wife and she has purchased the said properties from the money transferred by him to her. Though it is admitted that he was working abroad, he has not produced any documents to show that he has transferred money to his wife to enable her to purchase the said properties in her name. Even in the cross- examination, the husband has admitted that he has no idea as to when and how much money he has
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transferred to his wife. He is also ignorant about the sale consideration for which said properties were purchased. Ex.P17 is a document relied upon by the husband which is a letter issued by the Canara Bank which shows that the Bank has refused to divulge any information sought by the plaintiff’s advocate seeking details of his bank account between the years 1987 to 1997. The bank has declined to divulge the information citing a confidentiality clause. However, the husband has not questioned the said order. He has not chosen to seek information on his own. The reasons are not forthcoming as to why the plaintiff has not applied for such information or why he has not moved the Court to secure the records. Under these circumstances, the Court has to hold that the husband has failed to prove that he has transferred the money to his wife and she purchased item nos. 2 and 7 properties from his funds.
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Even it is not forthcoming from the records as to what was the expenditure incurred by the plaintiff while he was abroad and how much he saved and how much he has transferred to his wife. It is also required to be noticed that item No.7 was purchased in the year 1983 for a consideration of Rs.10,000/. The sale deed stands in the name of the wife. The original sale deed is also produced. The wife has also produced her income tax returns. From the income tax returns which were filed before the dispute arose between the parties, marked as Ex.D11 to Ex.D16, it can be noticed that the wife has disclosed her income as the rental income derived from item No.7 property and also from tailoring. This Court can certainly hold that the wife has established her case that the property at item No.7 was purchased without the aid of the income alleged to have been transferred from the husband. Even if it is assumed that the wife is also unable to prove the source of income, the same does not lead to the conclusion that
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the husband paid the money as the burden is on the husband and he has failed to discharge the burden. The income tax returns would indicate that she had rental income and income from the tailoring business. In the absence of any proof to show that the plaintiff has transferred money to his wife, this Court has to lean towards the conclusion that the first defendant purchased item No.7 property from her income. It can be further concluded that the wife had rental income from the said property which was reflected in her income tax returns. It can also be safely concluded that item No.2 property was purchased in the year 2004 for a consideration of Rs.60,000/- as by then she was earning rental income from her item no. 7 property.
On appreciation of the materials placed on record, this Court is of the view that the husband has not proved the burden cast on him to establish the title over properties at items Nos.2 and 7 which are the
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properties in the name of his wife. Under Hindu law, the presumption is that the property in the name of an individual is his/her individual self-acquired property until it is proved otherwise. The evidence to rebut the presumption in favour of the 1st defendant is not forthcoming. On the other hand, the materials on hand establish that wife had an independent source of income to purchase the aforesaid properties.
The evidence led on behalf of the husband namely evidence of brother and mother would show that his brother and mother have pleaded ignorance as to whether the money had been transferred by the plaintiff in favour of the 1st defendant. In the absence of any proof to establish that the husband had transferred money to his wife, this Court cannot hold that the plaintiff has paid the money to his wife to purchase the property in her name. Accordingly, points No.2 and 3
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are answered in favour of the appellants and against the respondent.
It is also required to be noticed that the purchasers who have purchased the properties before filing of the suit namely Nataraj and Naveen, are not made parties to the proceeding. In that view of the matter also, the suit is defective. The Family Court erred in granting the decree in respect of three suit properties standing in the name of the persons namely Nataraj and Naveen who are not parties to the suit.
Hence the following. ORDER (i) The judgment and decree dated 15.11.2016 passed by the Family Court at Tumakuru in O.S. No.32/2013 are to be set aside and accordingly, they are set aside and
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consequently, the suit of the husband is dismissed. (ii) Accordingly, the appeal is allowed.
Sd/- JUDGE
Sd/- JUDGE RV