M. R. Shah, J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Karnataka at Bangalore dated 06.09.2007 in RFA No. 220 of 1991, by which the High Court has dismissed the said First appeal preferred by the original plaintiff Smt. P. Leelavathi (now deceased and represented through her legal heirs) and has confirmed the judgment and decree passed by the learned trial Court dismissing the suit, the legal heirs of the original plaintiff Smt. P. Leelavathi have preferred the present appeal.
(2.) The facts leading to the present appeal in nutshell are as under: That Smt. P. Leelavathi instituted Original Suit No. 1248 of 1980 in the Court of the XIV Additional City Civil Judge at Bangalore against the original defendants - V. Shankaranarayan Rao (now deceased and represented through his legal heirs) and two others for partition and for recovery of 1/4th share of the plaintiff in the plaint scheduled properties. That the original plaintiff Smt. P. Leelavathi and the original defendants are the sister and brothers and the daughter and sons of Late G. Venkata Rao, who died on 08.10.1974. 2.1 It was the case on behalf of the original plaintiff that her father Late G. Venkata Rao was an Estate Agent and he was doing money lending business in his name and also in the names of his sons and he was purchasing properties in the names of his sons, though his father was funding those properties. According to the plaintiff, at the time of his death, G. Venkata Rao was in possession of a large estate comprising of immoveable properties, bank deposits etc. shown in the plaint schedule. It was the case on behalf of the original plaintiff that the suit schedule properties were as such joint family properties and/or they were purchased in fact by their late father G. Venkata Rao and the same was funded by their father. That, it was the case on behalf of the original plaintiff that the plaintiff was entitled to 1/4th share in all the said properties belonging to her father. It was the case on behalf of the original plaintiff that as the defendants refused to give her 1/4th share and gave an evasive reply, which prompted the plaintiff to demand in writing her share and for early settlement. That, thereafter she got a notice dated 18.07.1975 issued demanding partition and amicable settlement. But the defendants have failed to settle the matter. Therefore, the plaintiff instituted the aforesaid suit for partition and for recovery of her 1/4th share in the plaint schedule properties.
(3.) That the original defendants resisted the suit by filing the written statement. It was the case on behalf of the original defendants that the plaint schedule properties are exclusively owned by the defendants in their individual rights. Item No. 1 of the plaint schedule i.e., premises No. 32/1, Aga Abbas Ali Road is the personal property of defendant No. 3. Item (b) of schedule 1 belongs to defendant No. 2 and Item (c) belongs to defendant No. 1. These properties never belonged to their deceased father G. Venkata Rao and they do not form part of his estate. Coming to Item No. II, the three fixed deposits were the personal properties of each of the defendants. There was a joint saving bank account in the Syndicate Bank, Cantonment Branch in the joint names of the deceased and defendant No. 2. There is a small amount still lying in the said account. At any rate, there is no outstanding of Rs.10,000/- in the said account. Regarding Item No. III, there were no debts due and payable to the deceased. 939 shares were in the joint names of the deceased and the plaintiff. 840 shares were in the names of the deceased and defendant No. 1. Another 840 shares were in the names of the deceased and defendant No. 2. 949 shares were in the names of the deceased and defendant No. 3. The plaintiff had major share which were purchased by the deceased in the names of himself and the plaintiff. Late G. Venkata Rao was a head clerk attached to an advocate's office in Civil Station, Bangalore. On retirement, the deceased indulged in and acted as an estate agent in a most casual manner. At any rate, he was not doing money- lending business nor did he purchase properties as is sought to be made out in the plaint. The deceased was at no point of time in affluent circumstances. The solvency of the deceased was at a very low ebb at the time of his death and he left no jewellery. Even the furniture available at Premises No. 138, Aga Abbas Ali Road, Bangalore was not worth mentioning inasmuch as the pieces left could be counted on finger tips. The value of the entire hold effects would not exceed Rs.400.00. Only Items 10, 12, 19, 20, 21 and 22 out of the said premises were valuable articles of the deceased. The other items never existed at any point of time. The plaintiff had the best of things from her father while he was alive. She was the recipient of favours shown by her father from time to time. The deceased stretched his generosity even to his son-in-law, the husband of the plaintiff. The deceased in fact emptied his resources at the calls of her daughter and her husband. The son-in-law also collected cash from the deceased. The plaintiff and her husband are also due in a sum of Rs.3000/- borrowed by them under a pro-note dated 11.06.1966 from the deceased and defendant No. 3. They are also due a sum of Rs.1500/- under another pro-note dated 29.11.1966 payable to the deceased. The above amounts also carry interest at stipulated rates. The defendants serve their right to recover the said amounts through proper legal remedies. The plaintiff constructed a house bearing No. 150, Veerapillai Street with the said and financial assistance of her father. The plaintiff in active connivance with her husband ransacked the house No. 138, Aga Abbas Ali Road during the absence of the deceased and defendant No. 2 who had gone to Tirupathi and Madras. The plaintiff had made wrongful gains about this time somewhere in 1963. The plaintiff stayed with her husband at Chicmagalur only for about three months after her marriage. Thereafter she came with her husband to Bangalore and stayed with her father for nearly six years. The plaintiff is enjoying the special privilege and she has benefits bestowed on her, her husband and her children almost regularly. In addition to her father, defendant No. 2 was also looking after the needs of the plaintiff's family at considerable expenses. All the defendants are residing in rented houses. The claim of the plaintiff in respect of Item A to C in the plaint schedule is not tenable, in view of provisions of Section 2 of Benami Transactions (Prohibition of Right to Recover Property) Ordinance, 1988, the plaintiff has no cause of action and no relief can be given to her. The suit is therefore liable to be dismissed with costs. 3.1 That the trial Court framed the following issues: 1) Whether the plaintiff proves that the suit schedule immovable and movable properties as described in Schedule I to V are the self-acquire properties? 2) Whether the suit schedule I(a) vacant site bearing No. 32/1, Aga Abbas Ali Road, Civil Station, Bangalore, is the self acquired property of defendant No. 3? 3) Whether the suit schedule I(b) vacant site bearing No. 32/1, Aga Abbas Ali Road, Civil Station. Bangalore, is the self acquired property of defendant No. 2? 4) Whether the suit schedule I(c) property is the self acquired property of defendant No. 1? 5) Whether the defendants prove that the suit schedule II Bank deposits are the personal properties of each of the defendants? 6) Whether the defendants prove that there were furniture mentioned as Items 10, 12, 19, 20, 21 and 22 of suit Schedule V in page-5 of the plaint, hardly worth Rs.400/- in premises No. 138/A (New No. 6) Armstrong Road, Civil Station, Bangalore? 7) Whether the plaintiff is entitled to partition and possession of her 1/4th share in the suit schedule properties? 8) Whether there is cause of action for the suit? 9) To what reliefs is the plaintiff entitled? Additional Issue: Is the claim of the plaintiff barred by Section 2 of the Benami Transaction (Prohibition of Right to Recover Property) Ordinance, 1988 as alleged? 3.2 That the learned trial Court dismissed the suit by holding that the suit schedule properties are not the self- acquired properties of Late G. Venkata Rao; suit Item Nos. I(a), I(b) and I(c) are the properties of original defendant Nos. 1 to 3; the bank deposits mentioned in Scheduled II of the plaint are the personal properties of defendant Nos. 1 to 3. The learned trial Court further observed and held that in respect of moveable properties mentioned in Schedule V as suit Item Nos. 10, 12, 19, 20, 21 and 22, the plaintiff is entitled for 1/4th share and therefore the learned trial Court granted the decree for recovery of 1/4th share to the plaintiff which was hardly worth Rs.400/- (sic) available in the premises bearing No. 138/A (New No. 6) Armstrong Road, Civil Station, Bangalore.;