A NARAYANA SWAMY Vs. A SUBRAMANYA SWAMY

JUDGEMENT

(1.) The first defendant in O.S.7385/2005 on the file of First Additional City Civil and Sessions Judge, Bengaluru (CCH2), preferred this appeal challenging the judgment and decree dated 10.3.2011. During the pendency of this appeal, he died and his legal representatives are on record now. The first respondent also died and his legal representatives have been brought on record.

(2.) The parties are referred with respect to the position of each of them in the suit for the sake of convenience. The plaintiff and defendants 1 to 3, are the sons and the fourth defendant is the daughter of one A. Shankar Rao. The plaintiff initiated a suit claiming 1/6th share in the property bearing site No. 25/C, Municipal No. 18, 8th Block, Jayanagar, Bengaluru (which is referred to as 'suit property' hereafter). He pleaded that the City Improvement Trust Board allotted a site to his father A.Shankar Rao in the year 1958 and its possession was delivered to him on 25.10.1958. His father constructed a house in the said site by obtaining loan from State Bank of Mysore Housing Society. Thus, the plaintiff and the defendants had all along been in joint possession of the house, i.e., the suit property though the plaintiff was working at outside Bengaluru. Shankara Rao died in the month of December 1971. The plaintiff and defendants 2 and 3 along with their mother Sharadamma executed an affidavit on 14.5.1980 in favour of the first defendant giving no objection either to release or execute any document in his name in respect of the suit property. According to the plaintiff, he became a party to this affidavit on the insistence of his mother and two brothers other than first defendant. The plaintiff stated that this affidavit came into existence only for the limited purpose of appointing the first defendant as a care taker of the suit property, specifically to foreclose the loan obtained by A.Shankar Rao for construction of a house. But, the first defendant got executed a sale deed in his favour on 11.11.1981 from the Deputy Secretary, BDA, Bengaluru. The plaintiff did not have the knowledge of this sale deed and he firmly believed that the first respondent was a caretaker of the suit property by virtue of the affidavit given to him. The relationship between the plaintiff and the defendants was very cordial and there was no reason to distrust the first defendant till he demanded his share in the suit property. Only when he put forth his demand for partition, he came to know that the first defendant had obtained sale deed in his name and for this reason the first defendant rejected his demand for partition. Therefore, the plaintiff initiated a suit for partition.

(3.) The first defendant admitted that the erstwhile CITB allotted a site to his father in the year 1958, but denied that his father Shankar Rao obtained loan from State Bank of India Housing Society in the year 1961. In this regard the first defendant stated that his father obtained loan from Mysore Housing Board under the low income group scheme. The first defendant also stated that the plaintiff wrongly gave his date of death of his father as December 1971, but the correct date of death was 7.12.1970. The first defendant further contended that his parents were living with him and he took care of them during their old age till they died. According to the first defendant, the allotment of the site was due to the joint efforts of himself and his father. Though his father raised loan from Mysore Housing Board for constructing a house, he was unable to discharge the loan by himself. The plaintiff and other defendants did not take the responsibility of clearing the loan. It was he who took the responsibility of repaying the loan and at that stage actually the plaintiff and other defendants voluntarily executed an affidavit in his favour. The plaintiff had been employed and was residing outside the State, he had distanced himself from the family members for quite a long time. He cleared the entire loan and the Karnataka Housing Board issued a loan discharge certified in his name on 29.9.1980. None of his brothers contributed for discharge of the loan. In fact, his father had maintained accounts during his lifetime and these accounts would show the contribution made by the first respondent for clearing the loan without the help of the plaintiff and other defendants. Thereafter, in the year 1998-99, after obtaining sanction plan from Bengaluru City Corporation, he constructed another house on the first floor. He also renovated the ground floor during the time when he constructed a house in the first floor. The first defendant stated that he was in possession of the entire suit property and this was to the knowledge of the plaintiff and other defendants. For about four decades they did not claim partition and, therefore the suit is barred by limitation.